Director of Public Prosecutions v Moore

For an attempt offence, conduct may be sufficiently proximate even though it occurs before the defendant reaches the place or performs the final act required for the completed offence. The question whether conduct is more than merely preparatory is fact-sensitive. Preparatory conduct can constitute an attempt where it is sufficiently close to the final act to form part of the execution of the defendant’s plan. There is no universal formula, and common sense must be applied to the facts. Actual movement of a vehicle is not essential to distinguish driving from attempting to drive.

This was an appeal by way of case stated against the decision of a Deputy District Judge. The appellant had consumed alcohol above the prescribed limit and drove within a private facility towards an open gate leading to a public road. He was stopped before reaching the road.

The Deputy District Judge rejected a submission of no case to answer, after which the appellant pleaded guilty to attempting to drive with excess alcohol. The questions were whether an attempt could be committed while the vehicle was not on a road and whether the evidence disclosed a case to answer.

1. Appeal dismissed. The court answered both questions in the affirmative. The appellant’s conduct could amount to an attempt to drive on a public road although the vehicle remained within the AWE precincts.
2. Under section 3(3) of the Criminal Attempts Act 1981, the prosecution had to establish intent to commit the full offence. The appellant’s stated intention to drive his friend home was therefore relevant. The offence was not strict liability in that respect.
3. The distinction between driving and attempting to drive is not the achievement of motion. DPP v Alderton established that sufficient control over a vehicle, and conduct falling within the ordinary meaning of driving, may amount to driving even where the vehicle does not move. R v Farrance did not establish the contrary proposition; it concerned whether conduct could constitute an attempt despite an intervening mechanical factor.
4. The phrase more than merely preparatory excludes conduct that remains merely preparatory, but does not exclude every act which is preparatory in a broad sense. The court adopted a fact-sensitive approach. Conduct sufficiently close to the final act, and properly regarded as part of the execution of the defendant’s plan, may constitute an attempt.
5. The decisions in Mason v DPP and Shaw v Knill illustrated the factual nature of the inquiry. Opening a vehicle door was held incapable of amounting to more than merely preparatory in Mason v DPP, whereas pushing a motorcycle towards the entrance to a public road was capable of amounting to an attempt in Shaw v Knill. The present facts were closely analogous to the latter case.
6. Driving approximately 90 metres towards the open gate, with the stated intention of driving onto the public road, went beyond mere preparation. The intervention of the officer did not prevent the conduct from being an attempt.

Lord Justice Toulson agreed with the judgment of Mr Justice Owen and added that no single formula can accommodate the variety of possible cases.

• High Court (Administrative Court): On an appeal by way of case stated from the decision of Deputy District Judge Greaves, the court dismissed the appeal and answered both questions in the affirmative.
• Local Justice Area of Berkshire at Newbury: The Deputy District Judge rejected the submission of no case to answer. The appellant then pleaded guilty to attempting to drive with excess alcohol.