Sadeer, R v

For an attempt under section 1(1) of the Criminal Attempts Act 1981, the prosecution must prove both an act that is more than merely preparatory and an intention to commit the substantive offence. The statutory distinction asks whether the defendant has embarked on the crime itself rather than merely prepared for it.

Conduct consisting of asking for oral sex and exposing the penis did not, on the evidence and context of this case, pass that threshold. The context was equivocal and did not establish an intention to proceed irrespective of consent. A defendant is therefore entitled to a withdrawal of the count where the prosecution evidence cannot prove either essential element of attempted rape.

The appellant pleaded guilty to kidnapping and grievous bodily harm. At his trial in the Crown Court at Manchester, he was also charged with anal rape of RP. RP could not identify him as the person who committed that rape when cross-examined.

After her evidence, the prosecution obtained permission to add a count of attempted oral rape. The trial judge directed an acquittal on the original rape count but left the attempted-rape count to the jury, which convicted the appellant.

By leave of the single judge, the appellant appealed on the grounds that the alleged acts were merely preparatory and that the late amendment should not have been permitted. The central issue was whether the evidence could in law prove an attempted rape.

1. Appeal allowed. The submission of no case to answer on attempted rape should have succeeded. The conviction on count 14 could not stand.
2. Section 1(1) of the Criminal Attempts Act 1981 requires an act that is more than merely preparatory to the substantive offence. The inquiry is whether the defendant has embarked on the crime proper, rather than taken steps to prepare for it. The court referred to R v Qadir and Khan [1997] 9 Archbold News 1 as expressing the same distinction.
3. The prosecution also had to prove that the appellant intended to proceed to oral penetration even without RP’s consent. The evidence did not establish that intention. The context was equivocal: he asked RP for oral sex rather than advancing on her or attempting penetration; she refused; and he later drove her home.
4. The acts of exposing his penis and making the request were likewise insufficient to establish conduct beyond mere preparation. The fact that RP had shortly beforehand been raped by others did not cure the evidential deficiency, particularly as the jury had to proceed on the basis that the appellant had not participated in that rape.
5. The court also observed that the summing-up inadequately presented the defence contention that, even on the prosecution evidence, the conduct did not amount to attempted rape. It was unnecessary to determine the separate ground concerning the amendment of the indictment.

• Court of Appeal (Criminal Division): By leave of the single judge, allowed the appeal against the attempted-rape conviction: [2018] EWCA Crim 3000.
• Crown Court at Manchester: The jury convicted the appellant of attempted rape after the indictment was amended to add that count. The trial judge had directed an acquittal on the original anal-rape count.