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							COURT OF APPEAL

R v CAMPBELL [1991] 93 CAR 350

November 1 1990

Editor’s comments in red.

Full text

WATKINS LJ:

… On May 24 1989 … the appellant was found guilty of attempted
robbery … It seems that police officers had information which led them to
believe that an attempt might be made at some time in the future to rob a
sub post office which is in Cranbrook Road, London, SE6 …

On October 20, 1988 the appellant was lurking about in the vicinity of this
sub post office … [T]he police officers … saw the appellant walking
towards the post office. … In front of the post office … there is … a red
post-box. … As the appellant … was passing the post-box the officers
moved in. They grabbed hold of him just as he passed the post-box, he
then being but a yard or so from the post office door. He had upon him,
when he was searched, an imitation firearm. He had … sunglasses … He
had a note upon which he had written … words couched in the most vulgar
terms and which were of a most threatening nature. His intention it was
said was to place that note under the grill on the counter of the post office
so that it could be seen by whoever was behind. He hoped, no doubt, that
upon seeing him, that note and possibly the firearm, the person behind the
counter would be so sufficiently frightened as to hand over money.

That was the situation which must have come about. Clearly it did not
because, as I have said, he was arrested by the police officers before he
could even enter the premises. In interview he made no attempt to disguise
the fact that he had been reconnoitring this post office on days prior to the
one mentioned. He made no attempt to hide the fact that he - on that very
day - intended, up to a certain time, to carry out the robbery if he could. He
maintained that, not very long before he ultimately walked towards the
post office for the last time, he decided that the robbery simply was not
worth doing. The dangers of carrying out such an act were, he said, such
that he thought he ought not to put himself in peril for it.
He maintained that he was walking idly by the post office at the time he
was arrested and would have gone not very much further beyond that
before turning back and getting on his motor cycle and riding away. No
more of the facts need to be recounted. The issue here was clear. The jury
had to determine - upon that evidence - whether as a fact that, at the time
of arrest, the appellant was attempting to rob the post office.
…
In Jones (1990) 91 Cr. App. R. 351, [1990] 1 W.L.R. 1057 [in the Library]
Taylor L.J. giving the judgment of the Court stated that - and these are my
words - it was infinitely preferable that a judge, when giving directions to
the jury upon what involved an attempt to commit a crime, should stick to
the definition of an attempt in the Act itself and with that we respectfully
and entirely agree.

The judge in the present case properly and accurately directed the jury
upon what is contained in section 1(1) of the Criminal Attempts Act 1981.
But he also regaled them with references to the law which obtained before
that Act was passed. We believe that to be wholly unnecessary …

It is sufficient for a judge, when directing a jury upon the law of attempt, to
say, before you, the jury, can convict the defendant you must be satisfied
so as to feel sure of two things: first, that he intended to commit a robbery,
for instance and, secondly, that with that intent he did an act which was
more than an act of preparation to commit that offence. It is for you to
decide whether the act relied upon by the prosecution was more than
merely preparatory.

To embark discursively upon what the law was previously and to provide a
jury with elaborate instances of what can and what cannot constitute an
attempt may serve to confuse the jury especially seeing that the law
contained in the Act itself is clear.

What has a judge to do with that law in mind and with, before him, a
submission by the defence at the close of the Crown’s case that the
Crown’s evidence is such that a jury should not be invited to consider it
further? A judge has, at that stage, to form a judgment upon the evidence
of the Crown and determine whether or not that evidence is safe to be left
to the jury. If he is firmly of the view that relevant circumstances could not
amount to an attempt, then he should not leave the matter to be considered
further by the jury.
If he comes to the conclusion that, although the matter is not as conclusive
as that, it nevertheless would be unsafe to leave the material evidence to
the jury, he should take the like decisive action and stop the case and direct
that a verdict of not guilty be returned. It is only if he is satisfied that, in
his judgment, there is evidence upon which a jury can properly and safely
consider whether or not there has been an attempt that he should allow that
evidence to continue to be before them.

As the Lord Chief Justice said in relation to the act which goes beyond the
preparatory act: ‘It begins [he said] when the merely preparatory acts come
to an end and the defendant embarks upon the crime proper’.

Looking at the circumstances here it was beyond dispute that the appellant,
at the material time, was carrying an imitation firearm which he made no
attempt to remove from his clothing. … It was not suggested that he had,
in the course of making his way down the road past the post-box … moved
towards the door of the post office so as to indicate that he intended to
enter that place.

In order to effect the robbery … it would have been quite impossible
unless obviously he had entered the post office, gone to the counter and
made some kind of hostile act - directed, of course, at whoever was behind
the counter and in a position to hand him money. A number of acts
remained undone and the series of acts which he had already performed -
namely, making his way from his home … and walking towards the post
office door - were clearly acts which were, in the judgment of this court,
indicative of mere preparation, even if he was still of a mind to rob the post
office … If a person, in circumstances such as this, has not even gained the
place where he could be in a position to carry out the offence, it is
extremely unlikely that it could ever be said that he had performed an act
which could be properly said to be an attempt.

It would be unwise of a court to lay down hard and fast rules as to when, in
varying circumstances, an attempt has begun. The matter has to be decided
on a case by case basis as the issue arises. Always remembering that it is
for the judge, as has already been said as a matter of judgment, to come to
the conclusion whether or not the Crown, at the end of its case, had
brought before the court evidence which properly and safely can be left to
the jury to consider upon the vital issue.
In our judgment in this case, the judge was in error in coming to the
conclusion that on the evidence - which was, as I have already said,
undisputed - the jury could properly conclude that an attempt had been
made. He should have stopped the trial as he was invited to by learned
defence counsel. That being so, and for all the reasons previously stated,
including the state of the law, in our view, this appeal must be allowed and
the conviction quashed.

Full text

WATKINS LJ:

This is an appeal against conviction. On May 24, 1989, after a three-day
trial the appellant was found guilty of attempted robbery and possessing an
imitation firearm under section 18(1) of the Firearms Act 1968. He was
sentenced to concurrent terms of six years and three years’ imprisonment
respectively. He has the leave of the single judge to appeal against count 1
on the indictment which alleged attempted robbery. He pleaded guilty to
the offence in count 2, that is to say possession of an imitation firearm. It
seems that police officers had information which led them to believe that
an attempt might be made at some time in the future to rob a sub post
office which is in Cranbrook Road, London, SE6. They had their eye on
the place for a number of days, if not more. Some of the officers keeping
watch were armed. That was doubtless because they had good reason to
suspect that the would-be robber would carry out an armed robbery if he
were able to.

On October 20, 1988, the appellant was lurking about in the vicinity of this
sub post office. He was on a motor cycle, sometimes riding along the road
and sometimes walking around, having parked the motor cycle not far
away. He was dressed in the garb of a motor cyclist - a suit, crash helmet
and gloves. At about 15 or 20 minutes before midday the watching police
officers saw the appellant walking towards the post office. He removed a
pair of sunglasses from his breast pocket. He put them on and then he was
seen to put his right hand into the right thigh pocket of his motor cycle suit,
it seemed that there was something heavy there. He stopped walking when
he was about 30 yards away from the post office, took off his sunglasses
and, after looking around for a while, he walked away from the post office.
About half an hour later the police officers again saw the appellant walking
towards the post office. He did not put his sunglasses on on this occasion
nor did he reach into his right thigh pocket. He was merely walking along
the pavement on the same side of the road as the post office going towards
it. In front of the post office, as we are able to see for ourselves from a
photograph which the jury had before them, there is - to the right of the
single door leading into the premises - a red post-box. There is a space
between that and the wall of the premises sufficiently wide for people to
pass and re-pass. As the appellant - coming from right to left in the
photograph - was passing the post-box the officers moved in. They
grabbed hold of him just as he passed the post-box, he then being but a
yard or so from the post office door. He had upon him, when he was
searched, an imitation firearm. He had the sunglasses earlier referred to.
He had a note upon which he had written, as he afterwards admitted, words
couched in the most vulgar terms and which were of a most threatening
nature. His intention it was said was to place that note under the grill on
the counter of the post office so that it could be seen by whoever was
behind. He hoped, no doubt, that upon seeing him, that note and possibly
the firearm, the person behind the counter would be so sufficiently
frightened as to hand over money.

That was the situation which must have come about. Clearly it did not
because, as I have said, he was arrested by the police officers before he
could even enter the premises. In interview he made no attempt to disguise
the fact that he had been reconnoitring this post office on days prior to the
one mentioned. He made no attempt to hide the fact that he - on that very
day - intended, up to a certain time, to carry out the robbery if he could. He
maintained that, not very long before he ultimately walked towards the
post office for the last time, he decided that the robbery simply was not
worth doing. The dangers of carrying out such an act were, he said, such
that he thought he ought not to put himself in peril for it.

He maintained that he was walking idly by the post office at the time he
was arrested and would have gone not very much further beyond that
before turning back and getting on his motor cycle and riding away. No
more of the facts need to be recounted. The issue here was clear. The jury
had to determine - upon that evidence - whether as a fact that, at the time
of arrest, the appellant was attempting to rob the post office.

We have been referred by Mr. Mathias to a number of authorities on the
subject of what constitutes an attempt; the duty of a judge when
conducting a trial in relation to the direction which he should provide to a
jury in that regard and to his obligation at the end of the Crown’s case to
determine, as a matter of judgment, whether the Crown’s evidence was
such as safely to allow a jury to come to the conclusion upon that evidence
whether or not that had been the attempt alleged.

Here what happened in the trial was that, at the end of the Crown’s case,
submissions were made to the learned judge that he should stop the case
there and then. It was unsafe, so it was contended, to allow the jury to
consider it further and he should direct them to acquit upon this one count.

The learned judge, having considered the plain terms of the Act and the
authorities to which he was referred, considered that it was right for him to
allow the trial to continue. In his judgment the evidence was such as safely
to allow a jury to come to a conclusion one way or another that an att empt
to commit robbery had been effected.

The material legislation is all contained in the Criminal Attempts Act
1981. Section 1 of that Act states so far as material:

‘(1) If, with intent to commit an offence to which this section applies, a
person does an act which is more than merely preparatory to the
commission of the offence, he is guilty of attempting to commit the
offence ...’

By section 4(3)

‘Where, in proceedings against a person for an offence under section 1
above, there is evidence sufficient in law to support a finding that he did an
act falling within subsection (1) of that section, the question whether or not
his act fell within that subsection is a question of fact.’

Before the enactment of the Criminal Attempts Act there was authority of
high standing upon what in law could constitute an attempt to commit a
crime. In D.P.P. v. Stonehouse (1977) 65 Cr. App. R. 192, 208, [1978]
A.C. 55, 68, Lord Diplock said:

‘The constituent elements of the inchoate crime of an attempt are a
physical act by the offender sufficiently proximate to the complete offence
and an intention on the part of the offender to commit the complete
offence. Acts that are merely preparatory in the commission of the offence
such as, in the instant case, the taking out of the insurance policies are not
sufficiently proximate to constitute an attempt. They do not indicate a
fixed irrevocable intention to go on to complete the offence unless
involuntarily prevented from doing so. As it was put in the locus classicus
[an authoritative and often-quoted passage] Eagleton [1855] Dears C.C.
515, 538, 6 Cox C.C. 559, 571:

‘‘The mere intention to commit a misdemeanour is not criminal, some act
is required; and we do not think that all acts towards committing a
misdemeanour are indictable. Acts remotely leading towards the
commission of the offence are not to be considered as attempts to commit
it; but acts immediately connected with it are.’’

‘In other words the offender must have crossed the Rubicon and burnt his
boats.’

That guidance was followed by many trial judges thereafter. It was referred
to recently by Lord Lane C.J. in Gullefer (Note) (1990) 91 Cr.App.R. 356,
358, [1990] l W.L.R. 1063, 1066 [in the Library]. Having referred to Lord
Diplock’s guidance he went on to state:

‘The other line of authority is based on a passage in Stephen’s Digest of
the Criminal Law, 5th ed. (1894), Art. 50: ‘An attempt to commit a crime
is an act done with intent to commit that crime, and forming part of a series
of acts which would constitute its actual commission if it were not
interrupted.’

As Lord Edmund-Davies pointed out in D. P. P. v. Stonehouse that
definition had been repeatedly cited with judicial approval: see Byrne J. in
Hope v. Brown [1954] 1 W.L.R. 250, 253 and Lord Parker C.J. in Davey
v. Lee (1967) 51 Cr.App.R. 303, [1968] 1 Q.B. 366. However, as Lord
Parker C.J. in the latter case points out at p. 305 and p. 370G, Stephen’s
definition falls short of defining the exact point of time at which the series
of acts can be said to begin. It seems to us that the words of the 1981 Act
seek to steer a midway course. They do not provide, as they might have
done, that the Eagleton test [see Eagleton (1855) Dears C.C. 515, 6 Cox
C.C. 559] is to be followed or that, as Lord Diplock suggested, the
defendant must have reached a point from which it was impossible for him
to retreat before the actus reus of an attempt is proved.

On the other hand the words give perhaps as clear a guidance as is possible
in the circumstances as to the point of time at which Stephen’s series of
acts begins. It begins, in our view, when the merely preparatory acts come
to an end and the defendant embarks upon the crime proper. When that is
will depend, of course, upon the facts in any particular case.

In Jones (1990) 91 Cr. App. R. 351, [1990] 1 W.L.R. 1057 [in the Library]
Taylor L.J. giving the judgment of the Court stated that - and these are my
words - it was infinitely preferable that a judge, when giving directions to
the jury upon what involved an attempt to commit a crime, should stick to
the definition of an attempt in the Act itself and with that we respectfully
and entirely agree.

The judge in the present case properly and accurately directed the jury
upon what is contained in section 1(1) of the Criminal Attempts Act 1981.
But he also regaled them with references to the law which obtained before
that Act was passed. We believe that to be wholly unnecessary as we have
already indicated.

It is sufficient for a judge, when directing a jury upon the law of attempt, to
say, before you, the jury, can convict the defendant you must be satisfied
so as to feel sure of two things: first, that he intended to commit a robbery,
for instance and, secondly, that with that intent he did an act which was
more than an act of preparation to commit that offence. It is for you to
decide whether the act relied upon by the prosecution was more than
merely preparatory.

To embark discursively upon what the law was previously and to provide a
jury with elaborate instances of what can and what cannot constitute an
attempt may serve to confuse the jury especially seeing that the law
contained in the Act itself is clear.

What has a judge to do with that law in mind and with, before him, a
submission by the defence at the close of the Crown’s case that the
Crown’s evidence is such that a jury should not be invited to consider it
further? A judge has, at that stage, to form a judgment upon the evidence
of the Crown and determine whether or not that evidence is safe to be left
to the jury. If he is firmly of the view that relevant circumstances could not
amount to an attempt, then he should not leave the matter to be considered
further by the jury.

If he comes to the conclusion that, although the matter is not as conclusive
as that, it nevertheless would be unsafe to leave the material evidence to
the jury, he should take the like decisive action and stop the case and direct
that a verdict of not guilty be returned. It is only if he is satisfied that, in
his judgment, there is evidence upon which a jury can properly and safely
consider whether or not there has been an attempt that he should allow that
evidence to continue to be before them.

As the Lord Chief Justice said in relation to the act which goes beyond the
preparatory act: ‘It begins [he said] when the merely preparatory acts come
to an end and the defendant embarks upon the crime proper’.

Looking at the circumstances here it was beyond dispute that the appellant,
at the material time, was carrying an imitation firearm which he made no
attempt to remove from his clothing. He was not, as he had done
previously that day, wearing, as a form of disguise, sunglasses. It was not
suggested that he had, in the course of making his way down the road past
the post-box, turned and, so to speak, moved towards the door of the post
office so as to indicate that he intended to enter that place.

In order to effect the robbery it is equally beyond dispute it would have
been quite impossible unless obviously he had entered the post office, gone
to the counter and made some kind of hostile act - directed, of course, at
whoever was behind the counter and in a position to hand him money. A
number of acts remained undone and the series of acts which he had
already performed - namely, making his way from his home or other place
where he commenced to ride his motor cycle on a journey to a place near a
post office, dismounting from the cycle and walking towards the post
office door - were clearly acts which were, in the judgment of this court,
indicative of mere preparation, even if he was still of a mind to rob the post
office, of the commission that is of the offence of robbery. If a person, in
circumstances such as this, has not even gained the place where he could
be in a position to carry out the offence, it is extremely unlikely that it
could ever be said that he had performed an act which could be properly
said to be an attempt.

It would be unwise of a court to lay down hard and fast rules as to when, in
varying circumstances, an attempt has begun. The matter has to be decided
on a case by case basis as the issue arises. Always remembering that it is
for the judge, as has already been said as a matter of judgment, to come to
the conclusion whether or not the Crown, at the end of its case, had
brought before the court evidence which properly and safely can be left to
the jury to consider upon the vital issue.
In our judgment in this case, the judge was in error in coming to the
conclusion that on the evidence - which was, as I have already said,
undisputed - the jury could properly conclude that an attempt had been
made. He should have stopped the trial as he was invited to by learned
defence counsel. That being so, and for all the reasons previously stated,
including the state of the law, in our view, this appeal must be allowed and
the conviction quashed.

Crossing the Rubicon

In 49 B.C., after some hesitation, Julius Caesar crossed the Rubicon (a
small stream that flows into the Adriatic and in Roman times marked the
boundary between Cisalpine Gaul and ancient Italy) to march against
Pompey in defiance of the senate’s orders. He thus committed himself to
conquer or to perish, and ‘to cross the Rubicon’ now means to take an
irrevocable step.