Attempted murder

In English or maybe americancriminal law, attempted murder is the crime of more than merely preparing to commit unlawful homicide and at the same time having a specific intention to cause the death of human being under the Queen'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."

English law

In English law, as an "attempt", attempted murder falls within the scope of a1(1) Criminal Attempts Act 1981 and is an indictable offense which carries a maximum penalty of life imprisonment (the same as that for successful murder).

The mens rea (Latin for the "guilty mind") for murder includes an intention to kill or cause grievous bodily harm where there is a high probability of death resulting, whereas attempted murder depends on an intention to kill, and an overt act towards the 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 offense difficult to prove and it is more common for a lesser charge to be preferred under the Offenses Against The Person Act 1861.

However, in R v Morrison [2003] 1 WLR1859, 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 s18 OAP and Morrison was duly convicted of attempted GBH. The CA confirmed that attempted GBH is a valid alternative to attempted murder because there can be no intention to kill someone without the intention also to cause GBH.

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 because, in euthanasia for example, a person assisting intends to cause death, but with no suffering. That attempting to cause GBH 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 offenses have different mens rea requirements so that proof of intent to murder would not necessarily meet the requirement for s18 OAP.

Proof of mens rea

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.

Attempted murder requires evidence of an intention to kill, unlike murder, which requires an intention to kill or cause grievous bodily harm. This makes it a difficult allegation to sustain and careful consideration must be given to whether on the facts a more appropriate charge would be section 18 (Shooting or attempting to shoot, or wounding with intent to do grievous bodily harm.) Offenses Against the Person Act 1861. Another possible charge may be Section 16, Offenses Against the Person Act 1861 making threats to kill. See: Guidance on other relevant offenses.

The courts will pay particular attention to counts of attempted murder and justifiably will be highly critical of any such count unless there is clear evidence of an intention to kill. Attempted murder is an offense of specific intent.

When considering the choice of charge, prosecutors should consider what alternative verdicts may be open to a jury on an allegation of attempted murder. Section 6(3) Criminal Law Act 1967 applies. In R v Morrison (2003) 1 W.L.R.1859, on a single count of attempted murder, the Court of Appeal held that the trial judge had been right to leave to the jury an alternative count of attempting to cause grievous bodily harm with intent, because a defendant could not intend to kill without also intending to cause grievous bodily harm. If an alternative count can be left to the jury, prosecutors should not normally add it to the indictment, but should draw to the attention of counsel that the alternative count may be available. See: Alternative Verdicts. the actus rea The actions of the defendant must be more than merely preparatory; although words and threats may provide prima facie evidence of an intention to kill, there may be doubt as to whether they were uttered seriously or were mere bravado.

Evidence of the following factors may help to prove the intention to kill:

• calculated planning
• selection and use of a deadly weapon
• threats (subject to paragraph (vi) above)
• severity or duration of attack; intentionally discharging weapon toward witness
• relevant admissions in interview.

See also

• State v. Mitchell