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All England Law Reports/1990/Volume 3 /R v Gullefer - [1990] 3 All ER 882

[1990] 3 All ER 882

R v Gullefer

COURT OF APPEAL, CRIMINAL DIVISION

LORD LANE CJ, KENNEDY, OWEN JJ

4, 20 NOVEMBER 1986

Criminal law - Attempt - Acts preparatory to offence - When attempt begins - Defendant attempting to disrupt
greyhound race in order to get back stake on losing dog - Whether defendant guilty of attempted theft of
stake - Whether defendant's actions merely preparatory - Criminal Attempts Act 1981, ss 1(1), 4(3).

The appellant jumped onto the track at a greyhound racing stadium and waved his arms in an attempt to dis-
tract the greyhounds during the running of a race. He later admitted that he had acted in the hope that the
stewards would declare 'no race' and that he would be able to recover the stake he had placed on a dog that
a
was losing the race. He was charged with and convicted of attempted theft of his stake under s 1(1) of the
Criminal Attempts Act 1981, which provided that if with intent to commit an offence a person did an act which
was 'more than merely preparatory to the commission of the offence' he was guilty of attempting to commit
the offence. He appealed, contending that his actions were not sufficiently proximate to the complete offence
of theft to be capable of comprising an attempt to commit theft.

a
Section 1(1) is set out at p 884 b c, post

Held - The appellant's action in jumping onto the track during the running of the race could not properly be
said to be an action which had gone beyond mere preparation and to be part of the process of committing
theft from the bookmaker. The appeal would therefore be allowed and the conviction quashed (see p 884 f g
and p 885 g, post).

Per curiam. (1) Section 1(1) gives clear guidance as to when an attempt begins, namely when merely pre-
paratory acts come to an end and the defendant embarks on the crime proper (see p 885 f g, post); R v
Eagleton [1843-60] All ER Rep 363 and dictum of Lord Diplock in DPP v Stonehouse [1977] 2 All ER 909 at
917 considered.

b
(2) By virtue of s 4(3) of the 1981 Act it is for the judge to decide whether there is sufficient evidence that the
defendant went beyond the realm of mere preparation and embarked on the commission of the offence; if
there is, it is then for the jury to decide whether the defendant in fact went beyond mere preparation (see p
884 d e, post).
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b
Section 4(3) is set out at p 884 d, post

Notes

For the actus reus of an attempt to commit a crime, see 11(1) Halsbury's Laws (4th edn reissue) para 72,
and for cases on the subject, see 14(1) Digest (Reissue) 107-111, 723-749.
[1990] 3 All ER 882 at 883

For the Criminal Attempts Act 1981, ss 1, 4, see 12 Halsbury's Statutes (4th edn) (1989 reissue) 776, 779.

Cases referred to in judgment

Davey v Lee [1967] 2 All ER 423, [1968] 1 QB 366, [1967] 3 WLR 105, DC.

DPP v Stonehouse [1977] 2 All ER 909, [1978] AC 55, [1977] 3 WLR 143, HL.

Hope v Brown [1954] 1 All ER 330, [1954] 1 WLR 250, DC.

R v Eagleton (1855) Dears CC 515, [1843-60] All ER Rep 363, 169 ER 826, CCR.

R v Ilyas (1983) 78 Cr App R 17, CA.

Appeal against conviction and sentence

Ian John Gullefer appealed against his conviction on 26 February 1986 in the Crown Court at
Snaresbrook before his Honour Judge Stable QC and a jury of attempted theft for which he was
sentenced to six months' imprisonment. He appealed against conviction on a certificate from the
trial judge. He appealed against sentence by leave of the single judge. The facts are set out in the
judgment of the court.

Ian Copeman (assigned by the Registrar of Criminal Appeals) for the appellant.

Vivian Robinson QC for the Crown.

Cur adv vult

20 November 1986. The following judgment was delivered.

LORD LANE CJ

: On 26 February 1986 before the Crown Court at Snaresbrook the appellant was convicted of attempted
theft and sentenced to six months' imprisonment.

The judge certified that the case was fit for appeal on the ground that--
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'a submission was made that the action alleged as constituting the attempt (as to which there was no dispute, because
his action was filmed on video tape, which the jury and I saw) could not amount to an attempt to steal, even if the jury
were satisfied that what the defendant did was done with the object of dishonestly receiving a sum of money equivalent
to his stake from a bookmaker.'

He also appeals against sentence by leave of the single judge.

The facts were as follows. On 5 March 1985 the appellant attended the greyhound racing stadium at Rom-
ford. During the last race, as the dogs rounded the final bend, he climbed the fence onto the track in front of
the dogs, waving his arms and attempting to distract them. His efforts were only marginally successful, and
the stewards decided that it was unnecessary to declare 'no race'. Had they made such a declaration, by the
rules the bookmakers would have been obliged to repay the amount of his stake to any punter, but would not
have been liable to pay any winnings to those punters who would have been successful if the race had been
valid.

When interviewed by the police the appellant said the reasons for his behaviour were partly that a year ear-
lier he had lost a large bet at the stadium by reason of one of the stadium's staff leaning over the rails and
distracting the dog on which he had gambled. He also admitted that he had attempted to stop the race be-
cause the dog on which he had staked 18 was losing. He hoped that by his actions the dogs would be dis-
tracted, that the stewards would declare 'no race' and that he would therefore recover his stake from the
bookmaker.

The perfected grounds of appeal contained four grounds: first, that the property which was the subject of the
alleged attempted theft was not 'property belonging to another' within the meaning of the Theft Act 1968;
second, that, even if the appellant had successfully completed his plan and had recovered the 18 from the
bookmaker, that would not have amounted to an 'appropriation of property belonging to another'. Those two
grounds of appeal were abandoned by counsel for the appellant at the outset of his
[1990] 3 All ER 882 at 884

submissions to this court. In the light of our decision on the third ground of appeal, it is unnecessary for us to
inquire whether that abandonment was proper. The main burden of counsel's submission to us has been the
third ground of appeal, namely that the acts proved to have been carried out by the appellant were not 'suffi-
ciently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft'.

We have been referred to a number of decisions, many of them of respectable antiquity, which show, if
nothing else, the difficulties which abound in this branch of the criminal law. The present law is, however,
now enshrined in the words of the Criminal Attempts Act 1981. Section 1(1) provides:
'If, with intent to commit an offence to which this section applies, a person does an act which is more than merely pre-
paratory to the commission of the offence, he is guilty of attempting to commit the offence.'

Section 4(3) provides:

'Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to
support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell
within that subsection is a question of fact.'

Thus the judge's task is to decide whether there is evidence on which a jury could reasonably come to the
conclusion that the defendant had gone beyond the realm of mere preparation and had embarked on the
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actual commission of the offence. If not, he must withdraw the case from the jury. If there is such evidence, it
is then for the jury to decide whether the defendant did in fact go beyond mere preparation. That is the way
in which the judge approached this case. He ruled that there was sufficient evidence. Counsel for the appel-
lant submits that he was wrong in so ruling.

The first task of the court is to apply the words of the 1981 Act to the facts of the case. Was the appellant still
in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle
the jury to say that he had embarked on the theft itself? Might it properly be said that when he jumped on to
the track he was trying to steal 18 from the bookmaker?

Our view is that it could not properly be said that at that stage he was in the process of committing theft.
What he was doing was jumping onto the track in an effort to distract the dogs, which in its turn, he hoped,
would have the effect of forcing the stewards to declare 'no race', which would in its turn give him the oppor-
tunity to go back to the bookmaker and demand the 18 he had staked. In our view there was insufficient
evidence for it to be said that he had, when he jumped onto the track, gone beyond mere preparation.

So far at least as the present case is concerned, we do not think that it is necessary to examine the authori-
ties which preceded the 1981 Act, save to say that the sections we have already quoted in this judgment
seem to be a blend of various decisions, some of which were not easy to reconcile with others.

However, in deference to the arguments of counsel, we venture to make the following observations. Since
the passing of the 1981 Act, a division of this court in R v Ilyas (1983) 78 Cr App R 17 has helpfully collated
the authorities. As appears from the judgment in that case, there seem to have been two lines of authority.
The first was exemplified by the decision in R v Eagleton (1855) Dears CC 515, [1843-60] All ER Rep 363.
That was a case where the defendant was alleged to have attempted to obtain money from the guardians of
a parish by falsely pretending to the relieving officer that he had delivered loaves of bread of the proper
weight to the outdoor poor, when in fact the loaves were deficient in weight.

Parke B, delivering the judgment of the court of nine judges, said (Dears CC 515 at 538, [1843-60] All ER
Rep 363 at 367):
[1990] 3 All ER 882 at 885
'Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but
acts immediately connected with it are; and if, in this case, after the credit with the relieving officer for the fraudulent
overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a
further account or producing the vouchers to the Board, we should have thought that the obtaining credit in account
with the relieving officer would not have been sufficiently proximate to the obtaining the money. But, on the statement in
this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself,
towards the payment of the money, and therefore it ought to be considered as an attempt.' (Parke B's emphasis.)

Lord Diplock in DPP v Stonehouse [1977] 2 All ER 909 at 917, [1978] AC 55 at 68, having cited part of that
passage from R v Eagleton (1855) Dears CC 515, [1843-60] All ER Rep 363, added: 'In other words the of-
fender must have crossed the Rubicon and burnt his boats.'

The other line of authority is based on a passage in Stephen's Digest of the Criminal Law (5th edn, 1894) art
50:
'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which
would constitute its actual commission if it were not interrupted.'

As Lord Edmund-Davies points out in DPP v Stonehouse [1977] 2 All ER 909 at 933, [1978] AC 55 at 85-86,
that definition has been repeatedly cited with judicial approval: see Byrne J in Hope v Brown [1954] 1 All ER
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330 at 332, [1954] 1 WLR 250 at 253 and Lord Parker CJ in Davey v Lee [1967] 2 All ER 423 at 425, [1968]
1 QB 366 at 370. However, as Lord Parker CJ in the latter case points out, Stephen's definition falls short of
defining the exact point of time at which the series of acts can be said to begin.

It seems to us that the words of the 1981 Act seek to steer a midway course. They do not provide, as they
might have done, that the R v Eagleton test is to be followed, or that, as Lord Diplock suggested, the defen-
dant must have reached a point from which it was impossible for him to retreat before the actus reus of an
attempt is proved. On the other hand the words give perhaps as clear a guidance as is possible in the cir-
cumstances on the point of time at which Stephen's 'series of acts' begins. It begins when the merely pre-
paratory acts come to an end and the defendant embarks on the crime proper. When that is will depend of
course on the facts in any particular case.

Counsel for the appellant advanced certain other arguments before us on the basis that the judge had been
guilty of misdirections in his summing up to the jury. In the light of our decision on the main ground of appeal
it is unnecessary for us to consider whether those complaints are justified or not.

The appeal against conviction is allowed and the conviction quashed.

Appeal allowed. Conviction quashed.

Solicitors: Crown Prosecution Service, Snaresbrook.

Kate O'Hanlon Barrister.