R v Shivpuri

A person commits a statutory criminal attempt where, intending to commit an indictable offence, that person performs an act which is more than merely preparatory to the intended offence. Liability may arise although completion is impossible because the facts differ from the defendant’s belief.

An act cannot be classified as objectively innocent independently of the actor’s state of mind. The required criminal intention may convert otherwise innocent conduct into an attempt. The contrary distinction adopted in Anderton v Ryan [1985] AC 560 was overruled.

For knowingly participating in the fraudulent evasion of an import prohibition, knowledge that the goods are prohibited is sufficient. Knowledge of their precise identity or statutory class is unnecessary, although the goods or believed goods must fall within the category charged.

The appellant received and retained packages which he believed contained heroin or cannabis imported from India. He also took one package to a meeting for delivery to another person. The packages actually contained snuff or similar harmless vegetable matter.

He was convicted at Reading Crown Court of attempting knowingly to deal with and harbour a Class A controlled drug with intent to evade the import prohibition. The Court of Appeal (Criminal Division) dismissed his appeals and certified whether an offence under section 1 of the Criminal Attempts Act 1981 is committed where the completed offence would have occurred on the facts as believed, but was legally impossible on the true facts.

A separate ground challenged the trial judge’s direction concerning the knowledge required by section 170(1)(b) of the Customs and Excise Management Act 1979.

1. Disposition. The House unanimously dismissed the appeal and answered the certified question affirmatively. Lord Bridge of Harwich delivered the leading speech. Lord Elwyn-Jones and Lord Scarman agreed with it. The Lord Chancellor agreed save for a minor point and gave additional reasons; Lord Mackay of Clashfern agreed with the Lord Chancellor on that point and otherwise with Lord Bridge.

2. Impossible attempts. Per Lord Bridge, sections 1(1) and 1(2) of the Criminal Attempts Act 1981 required proof of an intention to commit the relevant offence and an act more than merely preparatory to the offence intended. The appellant intended to receive, retain and distribute heroin or cannabis which he believed had been smuggled into England. Receiving and retaining the packages, and meeting the intended recipient of one package, were respectively more than merely preparatory to harbouring and dealing. The harmless character of the substance made completion impossible but did not prevent liability.

3. Earlier authority overruled. Per Lord Bridge, the distinction in Anderton v Ryan [1985] AC 560 between objectively innocent and guilty acts could not be sensibly maintained. Every failed attempt may appear innocent when considered without the actor’s intention. It is the intention to commit an offence which gives the otherwise innocent act its criminal character. A proposed distinction between a dominant intention and an incidental mistaken belief was also inconsistent with section 1(3). The House exercised the power in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and overruled Anderton v Ryan. A serious error distorting the law should be corrected promptly, and no person could realistically have acted detrimentally in reliance upon that decision.

4. Knowledge of prohibited goods. Per Lord Bridge, Reg v Hussain [1969] 2 QB 567 remained good law. For section 170 offences it is sufficient that the accused knows the goods are subject to an import prohibition and knowingly participates in its fraudulent evasion. Knowledge of the precise kind or statutory class of goods is unnecessary. The legislative scheme had effectively adopted and endorsed that rule.

5. Misdirection and proviso. Where liability for an impossible attempt depends upon mistaken belief, the believed goods must belong to the statutory category supporting the offence charged. The direction permitting conviction for belief in heroin, cannabis or any other prohibited drug was technically too broad. The evidence concerned only heroin or cannabis, however, and the error caused no miscarriage of justice. The proviso to section 2(1) of the Criminal Appeal Act 1968 therefore applied.

1. House of Lords: The Court of Appeal’s order was affirmed, the certified question was answered affirmatively, and the appeal was dismissed.

2. Court of Appeal (Criminal Division): On 5 November 1984 the court dismissed the appeals against conviction. On 13 November 1984 it certified a point of law of general public importance and granted leave to appeal.

3. Crown Court at Reading: On 23 February 1984 the appellant was convicted of two attempts to commit offences involving dealing with and harbouring what he believed to be a Class A controlled drug.