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Cite as: [1985] AC 560, [1985] UKHL 5

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/245

    Anderton (Respondent)
    v.

    Ryan (A.P.) (Appellant) (On Appeal from a Divisional Court of

    the Queen's Bench Division))

    JUDGMENT

    Die Jovis 9° Maii 1985

    Upon Report from the Appellate Committee to whom was
    referred the Cause Anderton against Ryan, That the Committee
    had heard Counsel on Thursday the 14th day of February 1985
    upon the Petition and Appeal of Bernadette Ryan of 21
    Hallwood Road, Wythenshawe, Manchester in the County of
    Greater Manchester praying that the matter of the Order set
    forth in the Schedule thereto, namely an Order of a
    Divisional Court of the Queen's Bench Division of Her
    Majesty's High Court of Justice of the 15th day of May 1984,
    might be reviewed before Her Majesty the Queen in Her Court
    of Parliament and that the said Order might be reversed,
    varied or altered or that the Petitioner might have such
    other relief in the premises as to Her Majesty the Queen in
    Her Court of Parliament might seem meet; and Counsel having
    been heard on behalf of Cyril James Anderton, Chief
    Constable, Greater Manchester Police (on behalf of Her
    Majesty) Respondent to the said Appeal, and due consideration
    had this day of what was offered on either side in this
    Cause:


    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of a Divisional Court of the
    Queen's Bench Division of Her Majesty's High Court of Justice
    of the 15th day of May 1984 complained of in the said Appeal
    be, and the same is hereby, Set Aside save as to Costs: and
    that the Certified Question be revised and answered in the
    following terms: "where a person dishonestly handles goods
    in the belief that they are stolen goods but those goods are
    not in fact stolen, that person is not liable to be convicted
    of attempting dishonestly to handle stolen goods contrary to
    section 1 of the Criminal Attempts Act 1981": And it is
    further Ordered, That the Costs of the Appellant and the
    Respondent in respect of the said Appeal to this House be
    paid out of central funds pursuant to section 6 of the Costs
    in Criminal Cases Act 1973, the amount of such Costs to be
    certified by the Clerk of the Parliaments: And it is also
    further Ordered, That the Cause be, and the same is hereby,
    remitted back to the Queen's Bench Division of the High
    Court of Justice to do therein as shall be just and
    consistent with this Judgment.

    Cler: Parliamentor:


    HOUSE OF LORDS

    ANDERTON
    (RESPONDENT)

    v.

    RYAN (A.P.)
    (APPELLANT)


    (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S

    BENCH DIVISION)

    Lord Fraser ofTullybelton
    Lord Edmund-Davies
    Lord Keith of Kinkel
    Lord Roskill
    Lord Bridge ofHarwich


    LORD FRASER OF TULLYBELTON

    My Lords,

    I have had the advantage of reading in draft the speeches
    of my noble and learned friends, Lord Roskill and Lord Bridge of
    Harwich. I agree with them, and for the reasons given by them I
    would allow the appeal and answer the certified question (as
    revised) in the way that Lord Roskill proposes.

    LORD EDMUND-DAVIES

    My Lords,

    At the outset I address myself briefly to the peripheral
    question of whether on the established facts this appellant could
    have been convicted of the full offence of handling stolen goods.
    It is trite law that, as Darling J. said in Rex v. Sbarra (1918) 13
    Cr.App.R. 118, 120: "The circumstances in which a defendant
    receives goods may of themselves prove that the goods were
    stolen, and . . . that the defendant knew [that fact]." So in Rex
    v. Fuschillo
    [1940] 2 All E.R. 489, a conviction for feloniously
    receiving a substantial quantity of sugar (a rationed commodity)
    was upheld although, apart from the appellant's own statements,
    there was no evidence of the ownership of the sugar or of the
    fact that it had been stolen.

    But whether or not the circumstances of a particular case
    are such that inferences of theft and of guilty knowledge can
    properly be drawn are questions of mixed fact and law in the
    former case and of fact in the latter. The conclusion arrived at
    by the magistrates in the present instance is thus expressed in
    their stated case:

    "We were of opinion that the mere fact that [the appellant]
    believed the goods to be stolen was inconclusive in the
    absence of any evidence tending to show that the goods
    were, in fact, worth more than the £110 which [she] paid
    for them."

    - 1 -

    It followed from this unassailable finding that the magistrates
    could not thereafter proceed to convict the defendant of "handling
    stolen goods" contrary to section 22 of the Theft Act 1968. But
    the prosecution could not have foretold that such a finding would
    be arrived at; for example, the appellant might have given
    evidence and, both by what she said and by the manner in which
    she said it, convinced the magistrates that she more than merely
    suspected that the video recorder had been stolen and that, when
    she physically received it, she not only believed it to be stolen but
    also believed that it was in fact stolen. So some might think that
    the prosecution should have presented its evidence on the full
    offence and then awaited the outcome; but it is a matter of
    personal judgment upon which I express no opinion, and particularly
    as we know that on the attempted handling charge the defence
    elected to call no evidence.

    The sole question raised by this appeal is whether the
    magistrates were right in dismissing the further charge of
    attempting to "dishonestly handle a video recorder, knowing or
    believing it to be stolen (value £500), contrary to section 1(1)
    Criminal Attempts Act 1981." The short and simple facts and the
    wording of the section are fully dealt with in the speech prepared
    by my noble and learned friend, Lord Roskill, and I shall not
    repeat them. I regard these facts as basically identical with those
    considered by your Lordships' House in Reg. v. Smith (Roger)
    [1975] AC 476, both cases involving consideration of the
    ingredients of a charge of attempted handling. It is true that in
    Reg. v. Smith (Roger) it was established that the goods had in
    fact been stolen at one time, whereas in the present case there
    was no direct evidence that the goods had ever been stolen and
    the prosecution rested its case simply upon what the defendant had
    told the police about her physical acts and her state of mind at
    the material time. In Reg. v. Smith (Roger) after being stolen the
    goods were taken into lawful custody and thereupon ceased to be
    stolen: see the Act of 1968, section 24(3). In the present case the
    magistrates were not satisfied that the recorder had ever been
    stolen. But, despite that distinction (an immaterial one, as I hold),
    were the facts of Reg. v. Smith (Roger) to recur today, in my
    judgment they should lead to the same conclusion as do the facts
    of the present case. In both cases the proper test is whether the
    defendant believed the goods to be stolen when he performed "an
    act which is more than merely preparatory to the commission of
    the offence."

    In the present case the Divisional Court held that the
    absence of evidence of theft was immaterial to the charge of
    attempted handling. I think this was right, for either (a) the
    recorder had been stolen, in which case the appellant was guilty of
    an attempt to receive it, since the fact that she was also guilty
    of the full offence of handling leaves unaffected her liability to
    conviction for attempted handling (Webley v. Buxton [1977] Q.B.
    481); or (b) the recorder had not been stolen, in which case the
    appellant was, under the Act of 1981, guilty of attempted
    handling.

    My Lords, in my judgment the Divisional Court came to the
    correct conclusion. If, on the contrary, the submission advanced
    on behalf of the appellant is right, the legislature has substantially

    - 2 -

    missed its mark, for it was and is common knowledge that (to
    take as an example merely the facts of the present case)
    Parliament intended by the Act of 1981 that a person who
    dishonestly handles goods, mistakenly believing that they are stolen
    goods, should for the future be liable to conviction for attempted
    handling.

    Section 1(4) provides: "This section applies to any offence
    which, if it were completed, would be triable in England and Wales
    as an indictable offence ..." I shall later indicate why, in my
    judgment, the appellant clearly intended to handle stolen goods.
    She also took steps which were "more than merely preparatory" to
    the offence of handling, for in her belief that the goods were
    stolen she bought the recorder and received it into her custody.
    So she had the mens rea and, as far as she could and thought
    (though mistakenly), she committed the actus reus of the full
    offence of handling, though in reality a piece of the actus reus of
    handling "stolen goods" was missing.

    But, since the recorder was not in reality stolen, are the
    facts nevertheless sufficient for the charge of attempted handling?
    In developing the view that the proper answer is "No," Professor
    Hogan has observed [1984] Crim. L.R. 584, 589-590:

    "[Mrs. Ryan] attempted to handle non-stolen goods believing
    that they were stolen. That is not an offence known to the
    law and cannot be an offence to which section 1 of the Act
    applies. To convict Mrs. Ryan would be to contravene the
    principle of legality; a person, however evil his or her
    intentions may be, cannot be convicted unless he or she
    does, or fails to do, something which constitutes the actus
    reus of a defined crime. Mrs. Ryan got what she wanted
    for what she wanted was the video recorder at a very low
    price and in so doing did not handle stolen goods; if she is
    to be properly convicted of an attempt the requirement for
    proof that the goods were stolen still stands and cannot be
    satisfied by proof that Mrs. Ryan thought they were stolen."

    I have set out this extensive quotation because Professor Hogan's
    article was cited and adopted by the appellant's counsel. I desire
    to make the following brief comments upon it:

    1. In my judgment the quoted passage reveals an unsound
      approach to the new law of attempts introduced by the Act
      of 1981, which by section 6(1) abolished for all purposes the
      common law relating to the offence of attempt. It is not
      right to say that the appellant "attempted to handle non-
      stolen goods." Her own words disclosed that what she
      attempted was to handle stolen goods, and to the best of
      her belief she accomplished that very act, an act which
      undoubtedly constitutes "an offence to which [section 1 of
      the Act] applies" (section 1(1)).

    2. I naturally accept that, what is intended must be
      something which, if accomplished, would have brought about
      the actus reus of a defined crime, but at the same time I
      bear in mind that, in ascertaining what was intended,
      section 1(3) requires that the facts are to be taken as if
      they had been as the actor believed them to be.

    - 3 -

    (3) Professor Hogan earlier said: "it can be accepted that
    Mrs. Ryan had mens rea." Then what mens rea did she
    have? In my judgment, clearly the mens rea of one
    intending to handle stolen goods, for from its attractively
    low price she "supposed" that the recorder was stolen and
    acting on that supposition she bought and received it. As
    Professor Glanville Williams neatly puts it, "If the defendant
    received a stolen article believing it to be clean, you would
    not say that he intended to receive a stolen article. So
    when he receives a clean article believing it to be stolen,
    you should not say that he intended to receive a clean
    article" (1985 N.L.J. 337).

    My Lords, I hold that the appellant's case fails to have full
    and proper regard for the impact of subsection (2) and (3) of
    section 1 of the Act. The section wins no prize for lucidity, but
    its effect when considered in its entirety is that a person may
    now be guilty of attempting an offence even though the facts are
    such that commission of the full offence is impossible, provided
    that, "if the facts of the case had been as he believed them to
    be" (section l(3)(b)), he would be regarded as having made an
    attempt to commit that offence. In dealing with any attempt
    charge other than those expressly excluded by the Act, the Court
    has now to take the facts as the defendant believed them to be.
    If, on those supposed facts (as contrasted with supposed law), he
    would be guilty of an attempt, the Act makes him guilty of it.
    Taking the facts of the present case, before the Act a piece of
    the actus reus would have been missing for both handling and
    attempted handling, viz. the goods were not stolen; that is to
    say, the decision in Reg. v. Smith (Roger) [1975] AC 476 would
    have applied. Today, that piece is still missing and accordingly
    there can again be no conviction for handling. Nevertheless, the
    appellant is not in the position of one who, in the words of my
    noble and learned friend, Lord Bridge of Harwich, "embarks on and
    completes a course of conduct which is objectively innocent," nor
    is she to be convicted "solely on the ground that the person
    mistakenly believes facts which, if true, would make that course
    of conduct a complete crime." The legality of her conduct now
    fails to be judged by applying the Act, her belief being vitally
    relevant not only to her intent but also to the quality in law of
    her "objective" actions. Thus considered, her "more than merely
    preparatory" conduct was, in my respectful judgment, certainly not
    "innocent." On the contrary, contaminated by and performed in
    furtherance of her criminal objective, her conduct now constitutes
    the actus reus of the new statutory offence of attempted handling.

    My Lords, I believe that acceptance of the appellant's case
    would reduce the sonority of section 6(1) of the Act to a mere
    tinkle. In my judgment the legislature has succeeded in doing
    what in the main it set out to do, namely, to effect a radical
    change in the law of attempts as it had been declared in Reg. v.
    Smith (Roger).
    Professor Hogan, while agreeing that such was the
    main purpose of the Act, concludes [1984] Crim. L.R. 584, 591
    that there has been "a spectacular failure of legislative intent."
    Although the drafting of section 1 has been criticised, for the
    reasons already stated I hold that there has been no such failure
    and I would therefore dismiss the appeal.

    - 4 -

    But I must add a postscript. Throughout this speech I have
    resisted the almost overwhelming temptation to illustrate some of
    my observations by conjuring up hypothetical facts. I have
    refrained for complementary yet antithetical reasons. On the one
    hand, I do not consider it helpful to contemplate imaginary
    situations which, if perchance they arose, it is unthinkable that
    they would ever become the subject-matter of a prosecution. On
    the other hand, as an appeal to your Lordships House from the
    Court of Appeal (Criminal Division) decision in Reg. v. Shivpuri
    [1985] 2 W.L.R. 29 has unfortunately yet to be heard, I have
    refrained from considering situations basically indistinguishable
    from that giving rise to the impending appeal lest I appear to be
    prejudging its proper outcome. It is no fault of mine if, despite
    such restraint, what I have perforce said has made obvious the
    short answer I would unavoidably have given had it been deemed
    necessary to deal in its entirety with the question here certified
    by the Divisional Court.

    LORD KEITH OF KINKEL

    My Lords,

    I have had the opportunity of reading in draft the speeches
    to be delivered by my noble and learned friends, Lord Roskill and
    Lord Bridge of Harwich. I agree that, for the reasons they give,
    the appeal should be allowed.

    LORD ROSKILL

    My Lords,

    This appeal necessitates your Lordships determining for the
    first time the true construction of section 1 of the Criminal
    Attempts Act 1981. That this section and the other relevant
    sections of the Act of 1981 were enacted in consequence of the
    decision of this House in Reg. v. Smith (Roger) [1975] AC 476 is
    well known. That that decision aroused controversy and that
    differing views have since been expressed by writers of distinction
    as to the extent to which section 1 has altered the law as
    declared in Reg. v. Smith (Roger) is also well known. It is,
    therefore, important that the question of construction should be
    approached by reference to well known principles, ignoring that
    which is irrelevant however interesting, but remembering that
    statutes should be given what has become known as a purposive
    construction, that is to say that the courts should where possible
    identify "the mischief" which existed before the passing of the
    statute and then if more than one construction is possible, favour
    that which will eliminate "the mischief" so identified.

    The appeal arises from very simple facts out of which two
    charges faced the appellant when she appeared before the justices
    for Greater Manchester on 6 June 1983. The first was of
    dishonestly handling a video recorder knowing or believing it to be

    - 5 -

    stolen, contrary to section 22 of the Theft Act 1968. The second
    was of dishonestly attempting to handle that video recorder,
    contrary to section 1(1) of the Act of 1981.

    The facts are set out in the case which the justices stated
    for the opinion of the High Court. In the late afternoon of
    Sunday, 6 April 1983 a police officer visited the appellant at her
    home at her request in order to investigate a burglary which was
    alleged to have taken place there. In the course of conversation
    the appellant admitted to the police officer that "she had bought
    the video recorder for £110 from a person whom she declined to
    name." Later she said "I may as well be honest, it was a stolen
    one I bought, I should not have 'phoned you." In answer to the
    statement by the police officer that "You obviously knew it was
    stolen didn't you?" she replied "Yes, I knew, but it was damaged
    at the back . . ." Subsequently she said in answer to the question
    why she had bought it if she knew it to be stolen, she said "Well
    everyone's at it. I didn't think I'd get discovered." It is right to
    mention that the police officer never saw the video recorder in
    question and therefore could not give evidence either of its
    condition or of its value.

    After the appellant had pleaded not guilty to both charges,
    the prosecution informed the justices that they did not wish to
    proceed upon the first charge, that of dishonest handling. But the
    prosecution invited the justices to convict the appellant on the
    second charge on the basis that even though they could not prove
    that the video recorder had been stolen, the appellant could, on
    the facts already set out, by reason of section 1(1) of the Act of
    1981 be convicted of dishonestly attempting to handle the video
    recorder since she knew or believed it was stolen.

    The justices found, as indeed was obvious from the evidence
    already summarised, that:

    "the [appellant] had received into her possession a video
    cassette recorder and that at the time of the receipt into
    her possession she was of her belief that it was stolen
    goods."

    If the prosecution's submission as to the effect of section
    1(1) were correct, that last finding would of course justify her
    conviction on the second charge. But the justices rejected the
    submission and dismissed that charge. The prosecution appealed.
    On 4 April 1984 the Divisional Court (Parker L.J. and Forbes J.)
    [1985] 2 W.L.R. 23 allowed the appeal and sent the case back to
    the justices with a direction to convict. But they certified that
    the case gave rise to a point of law of general public importance.
    As I shall point out in due course, the certificate was in a most
    unusual form. The Divisional Court refused leave to appeal, but
    subsequently leave was given by this House.

    My Lords, certain matters may be mentioned at the outset,
    if only to dispose of them. First I am, I understand in common
    with all your Lordships, puzzled by the fact that the prosecution
    withdrew the first charge. In my view there was ample evidence
    from which a court could properly infer that the video recorder
    had been stolen and it is clearly found that the appellant at the
    time of its receipt also so believed. It may well be that had the

    - 6 -

    first charge not been withdrawn the justices would have felt
    obliged to draw that very inference. Mr. Hytner Q.C. for the
    appellant frankly accepted that there was at the lowest a prima
    facie case established of dishonest handling. It follows from the
    justices' findings that if the prosecution had not, as I think
    wrongly, withdrawn the first charge and the justices had thereafter
    felt obliged to draw that inference, a conviction on the first
    charge might well have ensued and the present problem would not
    then have arisen. To that extent the appellant may count herself
    fortunate. It is ironic that the present appeal arises, as did the
    appeal in Reg. v. Smith (Roger) [1975] AC 476, as a result of a
    concession of, to say the least, doubtful correctness: see the
    speeches of my noble and learned friend Lord Hailsham of St.
    Marylebone L.C., at p. 489, of Lord Reid, at p. 497, and of
    Viscount Dilhorne, at p. 503.

    Second, I have already referred to the unusual form of the
    certificate. I will now set it out in full.

    "Does a person commit an offence under section 1 of the
    Criminal Attempts Act 1981 where if the facts were as that
    person believed them to be the full offence would have been
    committed by him but where on the true facts the offence
    which that person set out to commit was in law impossible
    e.g. because the goods handled and believed to be stolen
    were not stolen or because the substance imported and
    believed to be heroin was not heroin but harmless white
    powder or because a girl with whom he had sexual
    intercourse was not under the age of consent although he
    believed her to be under such age?"

    My Lords, with all respect to the Divisional Court, this
    certificate was not, as it should have been, specifically limited to
    the question of law arising on the particular facts of this case.
    Having stated a question of law in general terms, the certificate
    seeks answers on the basis of no less than three different sets of
    facts, two of them necessarily hypothetical. Your Lordships were
    told by counsel that the form of the certificate was not suggested
    by either of them but was directed by the court. If this be so, I
    can only say with the utmost respect that this form of certificate
    is undesirable. The present certificate presupposes that the same
    answers should be given to the question of law in each of the
    three cases postulated. My Lords for the reasons I shall give I am
    of the opinion that on the facts of this particular case the appeal
    should succeed and that the conclusion reached by the Divisional
    Court cannot, with respect, be supported. Though in the course of
    giving my reasons for that view I shall say something of the
    unlawful sexual intercourse example postulated, I must not be
    taken as accepting that in the second case postulated, the
    supposed import of heroin, no offence against section 1(1) would in
    such a case have been committed. Your Lordships were told that
    this last question came before the Court of Appeal Criminal
    Division in Reg. v. Shivpuri [1985] 2 W.L.R. 29 some six months
    after the present case was before the Divisional Court and that
    leave to appeal to this House was then given by the former court.
    It would therefore be wrong to engage in any discussion relevant
    only to that case.

    - 7 -

    I return to the present appeal. In Reg. v. Smith (Roger)
    [1975] AC 476 the goods in question had been stolen. But the
    lorry carrying those goods was later intercepted and then passed
    under the control of the police. Smith was one of a number of
    men waiting to receive the lorry and its contents at a service
    area on the Ml motorway and the police, having intercepted the
    lorry and its contents, allowed it to proceed on its way with a
    view to trapping the remainder of the gang involved. The
    concession already referred to having been made, it was thought
    that it was not possible successfully to charge Smith with
    conspiracy to handle stolen goods since technically the goods in
    question were no longer stolen goods by reason of section 24 of
    the Act of 1968. But Smith was charged with and initially
    convicted of attempting to handle those stolen goods. The
    question then arose whether it was possible to attempt to commit
    an offence if the offence itself was incapable of being committed
    for reasons unknown to the accused. My noble and learned friend,
    the Lord Chancellor, referred, at p. 493, to the six-fold
    classification of attempted commission of offences enunciated by
    Turner J. in Reg. v. Donnelly [1970] N.Z.L.R. 980. My noble and
    learned friend said he found that six-fold classification more
    satisfactory than the dual classification which had previously been
    suggested in that case in the Court of Appeal Criminal Division.
    For present purposes I need only refer to his citation from that
    part of the judgment of Turner J. which relates to the fifth and
    sixth examples of that classification:

    "Fifth, he may find that what he is proposing to do is after
    all impossible not because of insufficiency of means, but
    because it is for some reason physically not possible,
    whatever means be adopted. He who walks into a room
    intending to steal, say a specific diamond ring, and finds
    that the ring is no longer there, but has been removed by
    the owner to the bank, is thus prevented from committing
    the crime which he intended, and which, but for the
    supervening physical impossibility imposed by events he
    would have committed. Sixth, he may without interruption
    efficiently do every act which he set out to do, but may be
    saved from criminal liability by the fact that what he has
    done, contrary to his own belief at the time, does not after
    all amount to a crime in law."

    The reasoning of my noble and learned friend in relation to
    the fifth class and his analysis of the decided cases happily
    absolves me from the necessity of traversing the same ground once
    more. At p. 495, he reached the conclusion: "in general I regard
    the reasoning in Reg. v. M'Pherson (1857) Dears. Q.B 197 and Reg.
    v. Collins
    (1864) 9 Cox C.C. 497 as sound and in general I would
    consider that 'attempts' in Turner J.'s fifth class of case are not
    indictable in English law ..." Lord Reid, at p. 498,
    emphatically rejected the argument that cases within the fifth
    class constituted attempts. He said;

    "It is said that if the accused does not know the true facts
    but erroneously believes the facts to be such that his
    conduct would be an offence if the facts had been as he
    believes them to be, then he is guilty of an attempt to
    commit the offence. In the case of a statutory offence
    that appears to me to be clearly wrong. The only possible

    - 8 -

    attempt would be to do what Parliament has forbidden. But
    Parliament has not forbidden that which the accused did,
    i.e. handling goods which have ceased to be stolen goods.
    The section defines both the actus reus and the mens rea
    required to constitute the offence. Both must be proved.
    Here the mens rea was proved but there was no actus reus
    so the case is not within the scope of the section."

    I need not quote similar passages from the speech of Viscount
    Dilhorne.

    So far as the sixth class is concerned, the House
    unanimously held that in this class of case also no offence was
    committed. The House adopted, as correct the statement of law in
    Rex, v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, 110:

    "Steps on the way to the commission of what would be a
    crime, if the acts were completed, may amount to attempts
    to commit that crime to which unless interrupted they
    would have led; but steps on the way to the doing of
    something, which is thereafter done, and which is no crime
    cannot be regarded as attempts to commit a crime."

    Lord Reid in a well known passage, at p. 500, dealt with the
    matter thus:

    "I would not, however, decide the matter entirely on logical
    argument. The life-blood of the law is not logic but
    common sense. So I would see where this theory takes us.
    A man lies dead. His enemy comes along and thinks he is
    asleep, so he stabs the corpse. The theory inevitably
    requires us to hold that the enemy has attempted to murder
    the dead man. The law may sometimes be an ass but it
    cannot be so asinine as that."

    This then was the state of the law regarding cases falling
    within the fifth and sixth classes before the enactment of the Act
    of 1981. Plainly, before that Act was passed, the appellant could
    not have been convicted of attempting dishonestly to handle stolen
    goods because, had she attained her objective, she could not in law
    have been guilty of dishonestly handling stolen goods, the goods by
    concession not being stolen goods. Can she now be convicted of
    that offence?

    The answer depends on to what extent the Act of 1981 has
    altered the law. For ease of reference I will set out the relevant
    part of the long title and the relevant sections:

    "An Act to amend the law of England and Wales as
    to attempts to commit offences . . .

    "1(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. (2) A
    person may be guilty of attempting to commit an offence to
    which this section applies even though the facts are such
    that the commission of the offence is impossible. (3) In any
    case where - (a) apart from this subsection a person's

    - 9 -

    intention would not be regarded as having amounted to an
    intent to commit an offence; but (b) if the facts of the
    case had been as he believed them to be, his intention
    would be so regarded, then, for the purpose of subsection (1)
    above, he shall be regarded as having had an intent to
    commit that offence. (4) This section applies to any
    offence which, if it were completed, would be triable in
    England and Wales as an indictable offence, other than -
    . . ."


    The ensuing exceptions are irrelevant for present purposes.

    "6(1) The offence of attempt at common law and any
    offence at common law of procuring materials for crime are
    hereby abolished for all purposes not relating to acts done
    before the commencement of this Act."

    The principle which I have stated at the outset of this
    speech that where more than one construction of a statute is
    possible that preferred should be the construction which eliminates
    the "mischief" at which the statute was directed must not be
    carried to extremes. The facts of Reg. v. Smith (Roger) [1975]
    A.C. 476 were most unusual. The problems to which the decision
    of this House gave rise were many. It by no means follows that
    Parliament in its efforts to solve some at least of those problems
    intended by this legislation to solve them all, or to ensure that if
    those unusual facts were to be repeated in the future, a defendant
    in the same position as Smith should be convicted when before this
    legislation he would have been entitled to acquittal. Loyalty to
    the principle should not require the adoption of a construction
    which leads to manifestly absurd results unless, of course, the
    draftsman's language compels that conclusion. I have already
    quoted Lord Reid's observations about the possible asininity of the
    law in this field. For my part I decline to construe a statute
    designed to amend "the law ... as to attempts" and thus to
    reform it so as to make it sensible and simple in its future
    application as having that result. It must, however, be said that
    the language used in the statute is such as to make the
    attainment of common sense and the avoidance of asininity at one
    and the same time almost impossible of achievement.

    My Lords, I begin my approach by recalling first that the
    statute is dealing only with inchoate offences and secondly the
    warning uttered by my noble and learned friend Lord Hailsham of
    St. Marylebone L.C. in his speech in Reg. v. Smith (Roger) at p.
    493, against over-analysis in this field of the criminal law. It is
    important when construing the statute to look at its language and
    not only at the antecedent classification to which I have already
    referred. The question to be asked is not whether the statute
    remedies the problem in class 5 cases, or in class 6 cases, or in
    neither or in both. The question to be asked is whether on a fair
    construction of the language used an accused person charged with
    an attempt is in the particular circumstances envisaged by the
    statute liable to conviction where before he would have been
    entitled to acquittal.

    Mr. Hytner Q.C. for the appellant after drawing your
    Lordships' attention to the relevant part of the long title invited
    your Lordships first to consider the language of subsections (1) and

    - 10 -

    (4). Writing the relevant words of subsection (4) into subsection
    (1) the latter then reads:

    "If with intent to commit an offence which if it were
    completed would be triable in England and Wales as an
    indictable offence, 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."

    Mr. Hytner then argued that dishonest handling of goods
    which are not stolen is not an indictable offence triable in England
    and Wales. This video recorder was not by concession stolen.
    Therefore on the facts found the appellant was not guilty of
    attempting to handle stolen goods, whatever her belief. The
    statute he said does not create an offence where only mens rea
    exists and there is no actus reus and it is still no offence to
    attempt to do that which if done is not in law an offence.

    This submission depends for its success solely upon the
    interpretation of section 1(1) and (4). If the submission be correct
    the statute would not have achieved its aim, namely to reverse
    any part of the decision in Reg. v. Smith (Roger) [1975] AC 476.
    The submission ignores subsections (2) and (3).

    Let me, therefore, turn to those two subsections. I will
    consider them in turn. Subsection (2) is seemingly aimed at cases
    such as that of the pickpocket who puts his hand into an empty
    pocket. In fact - I emphasise those words - he never could have
    achieved his ambition because the pocket was empty. The
    commission of the full offence was never possible not because of
    any lack of intent (mens rea) or indeed lack of relevant physical
    action (actus reus) on the part of the pickpocket. But because he
    was attempting to do that which was factually impossible it was
    said that he must be acquitted. That happily is now a matter of
    past controversy. Subsection (2) has at least removed the viability
    of what became known as the pickpocket's defence. It is against
    that background that I turn to consider subsection (3).

    I confess I have found great difficulty in determining the
    precise ambit of this subsection. The problems start with
    paragraph (a): "where - (a) apart from this subsection a person's
    intention would not be regarded as having amounted to an intent
    to commit an offence; . . ." Smith always intended to commit an
    offence and took many steps preparatory to achieving his aim. It
    was not insufficiency of intention which led to his acquittal: his
    acquittal was because that at which he aimed would not, by the
    time he achieved his aim, have been in law an offence. But
    paragraph (b) goes on to provide that "if the facts of the case had
    been as he believed them to be, his intention would be so
    regarded." The subsection then provides that if the two conditions
    specified in (a) and (b) are fulfilled "then, for the purposes of
    subsection (1) above, he shall be regarded as having had an intent
    to commit that offence."

    My Lords, in agreement with my noble and learned friend,
    Lord Bridge of Harwich, whose speech I have had the advantage of
    reading in draft and with which I entirely agree, I think that
    subsections (2) and (3) are complementary and must be considered
    together. In his speech my noble and learned friend instances the

    -11 -

    case of a thief who steals a suitcase which is in fact full of strips
    of newspaper but which he believes to contain £10,000 in cash.
    On the law as laid down in Reg. v. Smith (Roger) [1975] AC 476,
    and indeed under the statute if subsections (1) and (4) stood alone,
    the thief is only guilty of stealing the strips of newspaper. But
    subsection (3) enables him to be charged with and convicted of
    attempting to steal £10,000 in cash. Like my noble and learned
    friend, I do not propose to categorise the many examples discussed
    in Reg. v. Smith (Roger) and consider which would now fall within
    subsections (2) or (3) or possibly within both. But I would add a
    further example to that given by my noble and learned friend. I
    take the case of a defendant intending to kill another by stabbing
    him or by shooting him in bed only to find after the knife has
    been plunged or the revolver fired that the assumed and intended
    victim was a pillow. Such a defendant I am glad to think could
    now be successfully charged with and convicted of attempted
    murder. Before, in my view, a judge, however reluctantly, would
    have been compelled to direct his acquittal on such a charge.
    There is no doubt as to the guilty mind and the guilty act of that
    defendant. But, in truth, his intention at the time was always
    incapable of fulfilment. Since the enactment of subsection (3), the
    necessary intention is supplied by his guilty but mistaken state of
    mind.

    My Lords, it has been strenuously and ably argued for the
    respondent that these provisions involve that a defendant is liable
    to conviction for an attempt even where his actions are innocent
    but he erroneously believes facts which, if true, would make those
    actions criminal, and further, that he is liable to such conviction
    whether or not in the event his intended course of action is
    completed.

    The question is whether the language used by the draftsman
    in subsection (3) compels this result. After long consideration of
    the difficulties to which the drafting gives rise, I have come to
    the conclusion, in agreement with my noble and learned friend,
    Lord Bridge of Harwich, that it does not. I respectfully agree
    with his view that if the action is innocent and the defendant does
    everything he intends to do, subsection (3) does not compel the
    conclusion that erroneous belief in the existence of facts which, if
    true, would have made his completed act a crime, makes him
    guilty of an attempt to commit that crime. I also think that
    likewise a defendant who is possessed of a like erroneous belief
    and who after doing innocent acts which are more than merely
    preparatory to fulfilling his intention, for some reason subsequently
    fails to achieve that which he intends is not liable to be convicted
    of an attempt to commit a crime.

    If the contrary proposition be correct, some remarkable
    results follow. Let me take only one example. A young
    gentleman is determined upon sexual intercourse with a young lady
    whom he erroneously believes to be under 16. She is in fact 18.
    He succeeds in his ambition. Before subsection (3) was enacted he
    was clearly not guilty of any offence. Since the enactment of
    subsection (3), his completed act is still itself not a completed
    offence. I find it impossible to believe that it was intended by
    subsection (3) that he should be liable to be found guilty of
    attempting to have unlawful sexual intercourse with a girl under
    16 merely because of his erroneous belief. I find it equally

    - 12 -

    impossible to believe that in those circumstances Parliament
    intended that he should be liable to conviction for an attempt to
    commit that offence in a case where, for some reason, he failed
    at the last moment to achieve his ambition.

    I do not stop to speculate what Lord Reid might have
    thought or, indeed, have said about legislation which led to such a
    result.

    In my view, much clearer and one might say much more
    drastic language would be required to achieve that last result.
    Without presuming to redraft the subsection, I would at least have
    expected to have found some such provision as:

    "If a person does an act which, if the facts were as that
    person believed them to be, would amount to an offence to
    which this section applies, he shall be guilty of attempting
    to commit that offence."

    The language which the draftsman has used seems to me to fall a
    long way short of anything so drastic and far reaching.

    For the reasons I have given I summarise my conclusions
    thus:

    1. Sections 1(1) and (4) are designed to replace as a
      matter of statute law the former relevant common law. But they
      would not of themselves eliminate any of the problems created by
      Reg. v. Smith (Roger) [1975] AC 476. Indeed they would
      preserve them. But it was plainly the intention of the statute to
      change some at least of the law as declared in the speeches in
      that case.

    2. Subsection (2) certainly covers the pickpocket-empty
      pocket case. It may cover more but I do not find it necessary to
      consider the precise scope of this subsection.

    3. Subsection (3) covers the case of a defendant
      possessed of a specific criminal intent which he erroneously
      believes to be possible of achievement but which in fact is not
      possible of achievement.

    4. Subsection (3) does not, however, make a defendant
      liable to conviction for an attempt to commit an offence when,
      whatever his belief, on the true facts he could never have
      committed an offence had he gone beyond his attempt so as to
      achieve fruition.

    I would, therefore, allow the appeal and set aside the order
    of the Divisional Court. It follows that the justices reached a
    correct conclusion.

    For the reasons already given, I do not think the certificate
    is susceptible of an answer in the terms in which it is expressed.
    I would, therefore, revise it and having done so answer it as
    follows:

    "Where a person dishonestly handles goods in the belief that
    they are stolen goods but those goods are not in fact stolen,

    - 13 -

    that person is not liable to be convicted of attempting
    dishonestly to handle stolen goods contrary to section 1 of
    the Criminal Attempts Act 1981."

    My Lords, this is a case of general importance and I suggest
    that the costs of both parties should be paid out of central funds.

    LORD BRIDGE OF HARWICH

    My Lords,

    There is no more fertile field of legal controversy in the
    criminal law than that concerned with attempting the impossible.
    There was a wealth of learned literature on the subject both
    before and after the decision of your Lordships' House in Reg. v.
    Smith (Roger)
    [1975] AC 476 ("Smith's case"). The further
    decision of the House in Director of Public Prosecutions v. Nock
    [1978] A.C. 979 and the Law Commission's discussion and
    recommendations on the subject, accompanied by a draft Bill,
    Criminal Law: Attempt, and Impossibility in Relation to Attempt,
    Conspiracy and Incitement (1980) (Law Commission No. 102) kept
    the debate well fuelled. The Criminal Attempts Act 1981, which
    your Lordships have now to construe for the first time, gave a
    fresh impetus to the discussion in legal journals and text books. If
    one thing emerges clearly from the literature on the subject, it is
    that there is no consensus as to what the law ought to be, let
    alone as to what the law is.

    The facts giving rise to this appeal are recounted in the
    speech of my noble and learned friend Lord Roskill and I need not
    repeat them. I say nothing as to the wisdom of the prosecution in
    deciding to offer no evidence against the appellant on the
    substantive charge of handling stolen goods or as to what might
    have been the outcome if they had proceeded on that charge. As
    matters stand, it is fundamental to the appeal that we must
    assume that the video recorder which, according to her own
    statement, the appellant had bought for £110 was not and never
    had been stolen. Objectively considered, therefore, her purchase
    of the recorder was a perfectly proper commercial transaction.
    What the respondent must establish to sustain the decision of the
    Divisional Court is that, on the true construction of section 1 of
    the Act of 1981, her mistaken belief that the recorder was stolen
    was, by itself, sufficient to convert the transaction into an
    attempt to commit the offence of handling stolen goods.

    The Act of 1981 was clearly intended to change much of
    the law as declared in Smith's case, but the speeches in that case
    covered a wide range and, for my part, I see no ground for
    assuming that the legislation was necessarily designed to reverse
    the decision in Smith's case on its own facts. The acquittal of
    Roger Smith may have been part of the mischief identified by the
    Law Commission as calling for a remedy. But the Act of 1981 is
    significantly differently drafted from the Bill appended to the
    report, Law Commission No. 102, Appendix A, p. 85. As my noble
    and learned friend Lord Roskill points out, three of their Lordships
    in Smith's case doubted the correctness of the Crown's concession,

    - 14 -

    which they were nevertheless obliged to accept, that at the time
    when the goods in question were handled by Roger Smith they had
    been returned to lawful custody and had therefore ceased to be
    stolen goods. Apart, however, from the attempt charge, my noble
    and learned friend Lord Hailsham of St. Marylebone L.C. thought
    [1975] A.C. 486, 489 that if the second count of conspiracy against
    Roger Smith had been left to the jury it "could hardly have
    failed." I agree. If the unusual facts of Smith's case were to be
    repeated it seems to me that justice could be done by prosecuting
    for conspiracy, and that there would be no need to charge
    attempted handling in reliance on the Act of 1981.

    I accordingly approach the question arising in the present
    appeal as one of pure construction with no preconceived view of
    the legislative purpose intended. The relevant sections of the Act
    are set out in the speech of my noble and learned friend Lord
    Roskill and again I need not repeat them. I join with him in
    deprecating the form of the certified question, but I shall find it
    helpful in explaining the view that I have formed to refer to
    hypothetical illustrative cases, without, I hope, touching on any
    that might come before your Lordships for decision.

    The question may be stated in abstract terms as follows.
    Does section 1 of the Act of 1981 create a new offence of
    attempt where a person embarks on and completes a course of
    conduct which is objectively innocent, solely on the ground that
    the person mistakenly believes facts which, if true, would make
    that course of conduct a complete crime? If the question must be
    answered affirmatively it requires convictions in a number of
    surprising cases: the classic case, put by Bramwell B. in Reg. v.
    Collins
    (1864) 9 Cox C.C. 497, of the man who takes away his
    own umbrella from a stand, believing it not to be his own and
    with intent to steal it; the case of the man who has consensual
    intercourse with a girl over 16 believing her to be under that age;
    the case of the art dealer who sells a picture which he represents
    to be and which is in fact a genuine Picasso, but which the dealer
    mistakenly believes to be a fake.

    The common feature of all these cases, including that under
    appeal, is that the mind alone is guilty, the act is innocent. I
    should find it surprising that Parliament, if intending to make this
    purely subjective guilt criminally punishable, should have done so
    by anything less than the clearest express language, and, in
    particular, should have done so in a section aimed specifically at
    inchoate offences.

    I agree with my noble and learned friend Lord Roskill that
    section 1(1) and (4) of the Act of 1981 provide a statutory
    substitute for the common law offence of attempt abolished by
    section 6. It seems to me possible to find ample substance and
    content in section 1(2) and (3), reversing aspects of the law of
    attempt which emerge from Smith's case, without straining them
    to make the present appellant guilty of any offence. It is
    sufficient to say of subsection (2) that it is plainly intended to
    reverse the law, originally declared in Reg. v. Collins, 9 Cox C.C.
    497, mistakenly thought to have been overruled by Reg. v. Brown
    (1889) 24 Q.B.D. 357, but reaffirmed in Smith's case, that the
    pickpocket who puts his hand in an empty pocket commits no
    offence. Putting the hand in the. pocket is the guilty act, the

    - 15 -

    intent to steal is the guilty mind, the offence is appropriately
    dealt with as an attempt, and the impossibility of committing the
    full offence for want of anything in the pocket to steal is
    declared by the subsection to be no obstacle to conviction. The
    precise scope of subsection (3) is more difficult to delineate and I
    will not be so rash as to attempt to identify to which of the
    numerous hypothetical cases discussed in Smith's case it would
    apply; but I have no difficulty in giving an example of my own to
    which it certainly would. A wages clerk collects £10,000 in cash
    from the bank every Friday in a suitcase. An informer tells the
    police that a thief plans on a particular Friday to snatch the case
    and steal the money. The police set a trap, but, in case the thief
    should escape, arrange that the bank will fill the suitcase with
    torn strips of newspaper. The thief snatches the suitcase intending
    to throw it away and take the money which he believes it
    contains. At common law his only offence is stealing the torn
    pieces of newspaper. The effect of section 1(1) and (3) of the
    Act of 1981 is that he is guilty of attempting to steal £10,000.
    Here again there is a guilty act "more than merely preparatory to
    the commission of the offence" under subsection (1). Apart from
    subsection (3) his intention would not be regarded as an intention
    to steal £10,000. By subsection (3) his erroneous belief requires
    that his intention should be so regarded. It follows that the
    section enables him to be convicted of attempting to steal
    £10,000.

    It seems to me that subsections (2) and (3) are in a sense
    complementary to each other. Subsection (2) covers the case of a
    person acting in a criminal way with a general intent to commit a
    crime in circumstances where no crime is possible. Subsection (3)
    covers the case of a person acting in a criminal way with a
    specific intent to commit a particular crime which he erroneously
    believes to be, but which is not in fact, possible. Given the
    criminal action, the appropriate subsection allows the actor's guilty
    intention to be supplied by his subjective but mistaken state of
    mind, notwithstanding that on the true facts that intention is
    incapable of fulfilment. But if the action is throughout innocent
    and the actor has done everything he intended to do, I can find
    nothing in either subsection which requires me to hold that his
    erroneous belief in facts which, if true, would have made the
    action a crime makes him a guilty of an attempt to commit that
    crime.

    I add by way of postscript that the construction I put on
    section 1 of the Act of 1981 would not, in my view, lead to a
    conviction of Roger Smith of attempting to handle stolen goods on
    the basis of the facts as the House was obliged to accept them in
    Smith's case. At the time when Roger Smith took control of the
    erstwhile stolen goods and proceeded to assist in their removal and
    disposal, the goods, on the basis of the concession reluctantly
    accepted by the House, had lost their character as stolen goods.
    Roger Smith's earlier intentions, at the time when the goods were
    stolen, were irrelevant. He had not at that time done any act
    more than merely preparatory to the commission of an offence.
    He had conspired, but not attempted, to handle stolen goods. By
    the time he handled the goods, since they were no longer to be
    regarded as stolen, however guilty his mind, his act was as
    innocent as that of the appellant in the present case. However,
    as I have explained earlier, I find it unnecessary to construe the

    - 16 -

    Act of 1981 as overriding the decision on the facts in Smith's
    case.

    For all these reasons and for the reasons given by my noble
    and learned friend, Lord Roskill, I would allow the appeal and
    answer the certified question, as modified, in the terms he
    proposes.

    - 17 -


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