Law Report November 21 1973 Haughton v Smith (R.D.) Before Viscount Hailsham of St Marylebone, Lord Chancellor, Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne and Lord Salmon A man who dishonestly handles a lorry load of corned beef which he believed to have been stolen but which had earlier ceased by virtue of section 24(3) of the Theft Act, 1968, to be stolen goods because the police had taken them into law- ful custody cannot be guilty of the offence of attempting to handle stolen goods. The House of Lords so held in dismissing an appeal by the prose- cution from the Court of Appeal, (the Lord Chief Justice, Lord Tus- tice James and Mr Justice Nield) (Thte Times, March 30 [19731 2 WLR 942) ivhich had allowed an appeal by Roger Daniel Smith, of Wallace Avenue, Huyton, against his conviction at Liverpool Crown Court (Judge jalland) in Septem- ber, 1972, on a charge of attempt- ing to handle stolen goods under the Theft Act. Section 24(3) provides that " no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lavful possession or custody. Mr W. Geraint Morgan, QC, and Mr John Morgan for the prosecu- tion; Mlr B. A. Hytner, QC, and Mr John Briggs for hIr Smith. the respondent. The LORD CHANCELLOR said that the result of the proceedings was of only academic interest to the respondent since he was already serving a sentence In autumn, 1971 corned beef was stolen from a firm in Liverpool. Some days later police stopped an overloaded van travelling south and found the corned beef inside. The van was so badly overloaded that part of the cargo had to be removed, but it was then allowed to go on with two policemen con- cealed inside and one disguised beside the driver. The object was to catch the London receivers bv using the van and its load as a decoy. The van arrived on the Ml at the Scratchwood service area. where it was met or Joined by the respondent and at least one other. evidently by arrangement, and then driven on to London under the respondent's directions. but with the police still on board. The respondent played a prominent part in assisting in the disposal of the van and its load and thus handled the goods within the meaning of section 22 of tile Theft Act. Finally, the trap wvas sprung and various members of the con- spiracy arrested, tried, and dealt with separately. The respondent was tried later. There were two counts In the Indictment. The second was a charge of conspiracv by persons unknown to handle stolen goods. That could hardly have failed. but for reasons his Lordship was quite unable to understand the prose. cution did not proceed with It. The first charee was one of attempting to handle stolen goods. The completed offence of handling was not charged because the Drose- cution were of opinion that bv the time the goods were handled. thev were no longer to be treated as stolen because thev were restored to lawful custodv within the mean. ing of section 24(3). after the police had prepared the trap. One would have thought other counts would have been appropriate and ought properly to have succeeded. At the trial the respondent told a storv wvhich was not believed by the jury, but bis counsel took ad- vantage of the position in which the prosecution had placed itself to submit formidable arguments that a man could hardlv be con- victed of attempting to handle stolen goods when the goods were not stolen at the time of the attempted handling. That submis- sion failed before the trial tudee but succeeded in the Court of Appeal and in their Lordship's House. His Lordship was of opinion that the expression " believed " in section 22(l) was inserted to guard against acquittal which had taken place under the former Larceny Act when it was necessary to prove that the goods were stolen and belief was rot enough. If he were not certain that that was the true meaning of section 22(1), section 24 and in particular section 24(3) would clinch the matter. In his view, it was plain that to consti- tute the offence of handling, the goods specified must not only be believed to be stolen, but actually continue to be stolen goods at the moment of handling. Once that construction was accepted, it was not possible to convert a com- pleted act of handling, which was not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handl: stolen goods on the ground that at the time of handling the accused falsely be- lieved them still to be stolen. That would be enough to decide the appeal ; but his Lordship felt bound to accede to counsel's invi- tation to take a wider view of their Lordships' obligations since the result of their decision was to over- rule to some extent a number of decided cases. The Court of Appeal had certified the question: " If stolen goods are returned to lawful custody and thus cease to be stolen by virtue of section 24(3) . . . can a person who subsequently dishonestly handles goods believing them to be stolen be guilty of the offence of attempting to handle stolen goods ? An attempt to commit a criminal offence was itself a crimninal offence at common law, and by section 6(4) of the Criminal Law Act, 1967, it remained an offence as an attempt notwithstanding that the accused person was shown to have been guilty of the completed offence. But what was an attempt ? The earliest attempt at definition in comparative modern times was in Eagleton's case ((1855) Dears CC 51, 538) by Baron Clarke [that acts remotely leading towards com- mission of a misdemeanour were not attempts to commit it, but acts imnmeldiately connected with it werel.~~~~~~~ In attemp to Leem(1968 1 crmia 366, 370) Lord PLaerker gave] a mor modern definition and found help- ful the definition in the then cur- rent edition of Archboed a " . a the actus reus necessary to constitute an offence is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely con- nected with the commission of it and the doing of wvhich cannot reasonably be regarded as having any other. purpose than the com- mission of the specific crime. From the definitions in Eagteton and Davey his Lordship derived the following propositions (1) There was a distinction between the intention to commit a cnme and an attempt to commit it. Thus the respondent intended to commit a crime under section 22. But that dishonest intention did not amount to an attempt. (2) In addition to the intention. or mens rra. there must be an overt act of such a kind that it was in- tended to form and did form part of a series of acts which would con- stitute the actual commission of an offence if it were not interrupted. In the present case the series of acts would never have constituted and, in fact, did not constitute an actual commission of the offence because at the time of the handling the goods were no longer stolen goods. (3) The act relied on as con- stituting the attempt must not be an act merely preparatory to committing the completed offence but must bear a relationship to the completion of the offence referred to in Eagleton as " proxi- mate " and in Davey as " immedi- ately and not merely remotelv con- nected " with the completed offence. His Lordship did not think the present case turned on the test of proximity at all. In the present case the Lord Chief Justice had attempted to analyse in two categories the legal implications of inchoate, but un- completed, sequences of action which might or might not amount to a criminal offence. His Lordship did not wholly agree that that dual classification was adequate. He noticed that in the New Zealand case of R v Don- nelly ([19701 NZLR 980), whick was very much on all fours with the present, Mr Justice Turner adopted a six-fold classification. His Lordship found that more satisfactory than Lord Widgery's dual classification. Applying the three principles derived from his Lordship's primary definition to Mr Justice Turr.er's six-fold classification his Lordship would seek to obtain tihe following results: (1) A person who simply changed his mind before comm~itting any act sufficiently overt to amount to an attempt. At the relevant time there was no mens rea since there had been a change of intention and the only overt acts relied on would be preparatory and not imme- diately connected with the com- pleted offence. (2) A person who changed his mind but too late to deny that he had got so far as an attempt. There there was both mens rea and an act ionnected immediately with the offence, as, for example, an attempted raoe but the attacker desisting immediately before achieving penetration. It followed that there was a criminal attemrPt. (3) Where the person might be prevented by some outside agency from doing some act necessary to comnplete commission of the crime -a police officer interrupting him while he was trying to force the window open, hut before he had broken into the premises. That case was more difficult because it would depend on the stage at which the interruption took place, and the precise offence the attemipt to commit which was the subject of the charge. In general, bowever, a criminal attempt was commi,tted, assuming that the proximity test was passed. (4) A person who failed to com- plete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy he had brought with him might not be strong enough to force the win- dow open. In that case there was ample authority that, assuming that the proximity test was passed, a criminal attempt was committed. (5) A person who founl what he proposed to do was after all im- possible-he who wvalked into a room intending to steal a specific diamond ring and found the ring no longer there was thus prevented from committing the crime he intended. His Lordship thought that such attempts " were not indictable in English law. (6) The case where a man efficiently did without interruption every act he set out to do but was saved from criminal liability by the fact that what lie had done, con- trary to his belief at the time, did not after all amount to a crime. His Lordship considered that it was a general principle that the sixth class of attempts were not criminal, not because the acts were not proxd- mate or because the intention %-as absent, but because the second of his Lordshiip's three propositionis was not satisfied. His Lordship agreed with the decision in R v. Percy Dalton (London) Ltd ((1949) 33 Cr App R 102) and the quotation from Mr Justice Birkett (p 110) cited by the Lord Chief Justice in the present case: " Steps on the way to the commnission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless inter- rupted, 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." His Lordship would add to the last sentence a rider to the effect that equally steps on the way to do something which was thereafter not completed, but which if done would not constitute a crime could not be indicted as attempts to commit that crime. It was, of course, true that, at least in theory, some villains would escape by that route. But in most cases they could properly be charged- with something else- statutory offences like brealdng and entering with intent, etc, or loiter- ing with intent, etc, or, as here, common law offences like conspir- ing to commit the same offence as that the attempt to commit which was charged or even com- mitting a substantive offence of a different kind, as here, stealing or attempting to steal. It followed that the reasoning in R v Miller ((1965) 49 Cr App R 241) could not be supported, although, on the present definitions in the Theft Act, the result might have been, the same for different reasons. His Lordship also thought that R v Curbishley ((1970) 55 Cr App R 301) was wrongly decided The appeal should be dismissed and the question certified answered in the negative. LORD REID, concurring, said that a theory had been evolved that there could be an attempt to commit an offence although that offence could not be committed. It was an attempt to punish people for their guilty intentions. The respondent-might be as deserv- ing of punishment as he would have been if the goods had still been stolen goods. But such a radical change in the principlesi of our lavw should not be introduced in that way even if it were desirable. The theory must be rejected. The law was properly stated in the Percy Dalton case. Lord Morris and Viscount Dil. horne delivered speeches concurr- ing the result, .and Lord Salmon agreed with the Lord ChancelUor's speech. Solicitors: Howlett & Clarke, Cree & Co for Mr R. H. Nicholson. Liverpool ; Field, Fisher & Martin- eau for Mace & Jones, Liverpool. Law Report November 21 1973 House of Lords When an attempt is not a criminal offence