R v Smith (Roger) (Haughton v Smith)

A person cannot be guilty of attempting a substantive offence where, even if every intended act were completed, the resulting conduct could not constitute that offence. A guilty intention alone is insufficient. There must be an overt act forming part of a sequence which, if uninterrupted, would amount to the completed crime.

Accordingly, handling goods believed to be stolen is neither handling nor attempted handling under section 22 of the Theft Act 1968 if the goods have ceased to be stolen. Physical or legal impossibility of this kind is distinct from failure caused by inadequate means, lack of skill, interruption or another event outside the accused’s control. Those circumstances may support liability for an attempt once conduct has progressed beyond mere preparation.

The respondent was convicted at Liverpool Crown Court of attempting to handle stolen corned beef. The police had intercepted the goods and used them as a decoy. The prosecution conceded that the goods had thereby been restored to lawful custody and had ceased to be stolen under section 24(3) of the Theft Act 1968.

The Court of Appeal (Criminal Division) quashed the conviction and certified whether a person who dishonestly handled such goods, believing them to be stolen, could be guilty of attempted handling. The prosecution appealed to the House of Lords. The appeal also raised the wider question whether conduct can constitute a criminal attempt when the intended offence was incapable of commission in the existing circumstances.

1. The appeal was dismissed unanimously. The certified question was answered in the negative. The respondent’s handling of goods which had ceased to be stolen could not constitute either the completed offence or an attempt to commit it.

2. Per Lord Hailsham LC, Lord Reid, Lord Morris of Borth-y-Gest and Viscount Dilhorne, section 22(1) of the Theft Act 1968 requires the goods actually to remain stolen at the time of handling. The reference to knowing or believing that goods are stolen concerns the accused’s state of mind. It does not extend the statutory offence to goods which are not stolen. Section 24(3) confirms that construction.

3. Per Lord Hailsham LC, an attempt requires both the intention to commit the offence and an overt act forming part of a sequence which would constitute the completed offence if uninterrupted. The act must also have progressed beyond mere preparation and be immediately, rather than remotely, connected with the offence. Lord Reid considered that the boundary between preparation and attempt must be determined by common sense on the facts of each case.

4. Per Lord Hailsham LC, Lord Reid, Lord Morris and Viscount Dilhorne, conduct does not become a criminal attempt merely because the accused mistakenly believes that it constitutes an offence. Where the intended sequence, even if fully carried out, could not amount to the offence charged, the law would otherwise punish intention alone and create liability beyond the substantive offence authorised by Parliament.

5. This principle does not prevent liability where completion fails through inadequate means, ineptitude, interruption or an event outside the accused’s control. Examples include insufficient poison, inadequate tools or a victim moving before a shot is fired. Such cases may constitute attempts if the accused has passed the preparatory stage.

6. The reasoning in R v M’Pherson and R v Collins was approved. The contrary approach in R v Brown and R v Ring was rejected. R v Miller and Page and R v Curbishley and Crispin were overruled. Lord Salmon agreed with the Lord Chancellor’s reasons.

1. House of Lords: Dismissed the prosecution’s appeal unanimously and affirmed the quashing of the conviction. The certified question was answered in the negative.

2. Court of Appeal (Criminal Division): Quashed the conviction for attempted handling, certified a question of law of general public interest and granted leave to appeal. Its judgment is referred to in the speeches as [1973] 2 W.L.R., without a complete report citation.

3. Liverpool Crown Court: Convicted the respondent of attempting to handle stolen goods and sentenced him to 12 months’ imprisonment. A count alleging conspiracy to handle stolen goods resulted in a directed verdict of not guilty after the prosecution did not proceed with it.