Anderton v Ryan [1985] UKHL 5

House of Lords
Between
AndertonAppellantRyanRespondent
Before
Lord Fraser of Tullybelton
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."

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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

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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: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)).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.

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(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.

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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

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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

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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.

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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

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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

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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

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(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

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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

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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: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.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.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.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,

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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,

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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

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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

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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.

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