Crime of attempt in various jurisdictions
Attempted murder
is a
crime
of
attempt
in various jurisdictions.
Canada
[
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]
Section 239 of the
Criminal Code
makes attempted murder punishable by a maximum of
life imprisonment
. If a gun is used, the
minimum sentence
is four, five or seven years, dependent on prior convictions and relation to
organized crime
.
[1]
United Kingdom
[
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]
England and Wales
[
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]
In English
criminal law
, attempted murder is the crime of simultaneously preparing to commit an
unlawful killing
and having a
specific intention
to cause the death of a human being under the
King's Peace
. The phrase "more than merely preparatory" is specified by the
Criminal Attempts Act 1981
to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".
In
England and Wales
, as an "
attempt
", attempted murder is an offence under section 1(1) of the Criminal Attempts Act 1981 and is an
indictable offence
which carries a maximum penalty of
life imprisonment
(the same as the mandatory sentence for murder). The corresponding legislation for
Northern Ireland
is section 3(1) of the
Criminal Attempts and Conspiracy (Northern Ireland) Order 1983
(No.1120 (N.I.13)).
The
mens rea
(
Latin
for the "guilty mind") for murder is an intention to kill or cause
grievous bodily harm
,
[2]
whereas attempted murder depends on an intention to kill and an overt act towards committing homicide. Attempted murder is only the planning of a murder and acts taken towards it, not the actual killing, which is the murder. This makes the offence very difficult to prove and it is more common for a lesser charge to be preferred under the
Offences against the Person Act 1861
.
However, in
R v Morrison
[2003] 1 WLR 1859, the
Court of Appeal
considered the issue of
alternative verdicts
on an indictment with a single count of attempted murder. Morrison had gone into a shop with two other men on a robbery with a firearm. They demanded money and one of the men shot at the shopkeeper who suffered only minor injury. The prosecution had many opportunities to add other counts before the
trial
but failed to act. Having heard the case, the
judge
expressed his view that the
jury
could consider an attempted
grievous bodily harm
(GBH) under section 18 of the 1861 Act and Morrison was duly convicted of attempting to cause grievous bodily harm. The Court of Appeal confirmed that attempting to cause grievous bodily harm is a valid alternative to attempted murder because there can be no intention to kill someone without the intention also to cause grievous bodily harm.
This is a practical decision to ensure that the criminal justice system did not allow a guilty person to walk away because only one charge had been preferred. But it is not necessarily a good general principle
[
citation needed
]
because, in
euthanasia
for example, a person assisting intends to cause death, but with no suffering. That attempting to cause grievous bodily harm must be an alternative verdict should the intended victim not die would be a strange outcome because there is no intention to cause any long-lasting and serious injury: the two attempted offences have different
mens rea
requirements so that proof of intent to murder would not necessarily meet the requirement for section 18 of the 1861 Act.
First, acting deliberately and intentionally or recklessly with extreme disregard for human life, the person attempted to kill someone; and the person did something that was a substantial step toward committing the crime. Mere preparation is not considered a substantial step toward committing a crime.
Proof of
mens rea
[
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There must be more than merely preparatory acts and, although the defendant may threaten death, this may not provide convincing
evidence
of an intention to kill unless the words are accompanied by relevant action, e.g. finding and picking up a weapon and making serious use of it, or making a serious and sustained physical attack without a weapon.
Duress, necessity and marital coercion
[
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]
The defences of
duress
and
necessity
are not available to a person charged with attempted murder. Conversely, the statutory defence of
marital coercion
is, on the face of the statute, available to a wife charged with attempted murder.
[3]
[4]
History
[
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]
Prior to 1967,
sections 11 to 15 of the Offences against the Person Act 1861
created a number of offences of attempting to commit murder by various specified means (ss.11 to 14), and an offence of attempting to commit murder by any means not specified in those offences (s.15).
After the repeal of these offences by the
Criminal Law Act 1967
, attempted murder was allowed to subsist at
common law
until the enactment of the 1981 Act.
Scotland
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]
Attempted murder is a crime at
common law
in Scotland. Attempted murder is the same as the offence of murder in Scots law with the only difference being that the victim has not died.
[5]
The offence of murder was defined in
Drury v HM Advocate
:
[M]urder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies.
Intention can be inferred from the circumstances of the case. Wicked recklessness is determined objectively
[6]
and is "recklessness so gross that it indicates a state of mind which falls to be treated as wicked and depraved as the state of mind of a deliberate killer."
[7]
As with all common law offences in Scotland, the maximum punishment available is life imprisonment.
Two crows joke
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]
There is a joke, labelled as a
geek-joke
or a dad joke:
- What do you call two crows on a branch?
- Attempted murder.
?
unknown
The joke is also presented as a picture of two crows on a branch or a bench, and then just the text "Attempted murder" beneath. A group of crows is called a
murder
as a collective noun. Since just two crows is not considered a group it is not a complete murder.
[8]
See also
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]
References
[
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]
- ^
Criminal Code
, RSC 1985, c C-46, s 239.
- ^
Herring, Jonathan (5 May 2022).
Criminal Law: Text, Cases, and Materials
(10 ed.). Oxford: Oxford University Press. p. 221.
ISBN
9780192855923
. Retrieved
16 May
2024
.
- ^
Criminal Justice Act 1925
(15 & 16 Geo.5 c.86), section 47
- ^
Criminal Justice Act (Northern Ireland) 1945
(c.15)(N.I.), section 37
- ^
Cawthorne v HMA
, 1968 JC 32, 36 per LJ-G Clyde.
- ^
Broadley v HMA
, 1991 JC 108, 114 per LJ-C Ross.
- ^
Scott v HMA
, 1996 JC 1, 5 (opinion of the court)
- ^
Mudie, Keir (13 July 2013).
"The world's geekiest jokes explained after Reddit challenge to find most intellectual gag"
.
Irish Mirror
. Retrieved
9 May
2024
.