Attempted murder

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Template:CrimLaw In the criminal law, attempted murder is committed when the defendant does an act that is more than merely preparatory to the commission of the crime of murder and, at the time of these acts, the person has a specific intention to kill.

English law

As an attempt this falls within the scope of a1(1) Criminal Attempts Act 1981 and it is an indictable only offence, which carries a maximum penalty of life imprisonment (the same as that for successful murder).

The mens rea (the Latin for the "guilty mind") for murder includes both an intention to kill and/or to cause grievous bodily harm where there is a high probability of death resulting, whereas attempted murder depends on an intention to kill alone. This makes the offence difficult to prove and it is more common for a lesser charge to be preferred under the Offences Against The Person Act 1861. However, in R v Morrison [2003] 1 WLR1859, the Court of Appeal considered the issue of alternative verdicts on an indictment with a single count of attempted murder. Morrison had gone into a shop with two other men on a robbery with a firearm. They demanded money and one of the men shot at the shopkeeper who suffered only minor injury. The prosecution had many opportunities to add other counts before the trial but failed to act. Having heard the case, the judge expressed his view that the jury could consider an attempted grievous bodily harm (GBH) under s18 OAP and Morrison was duly convicted of attempted GBH. The CA confirmed that attempted GBH is a valid alternative to attempted murder because there can be no intention to kill someone without the intention also to cause GBH.

This is a practical decision to ensure that the criminal justice system did not allow a guilty person to walk away because only one charge had been preferred. But it is not necessarily a good general principle because, in euthanasia for example, a person assisting intends to cause death, but with no suffering. That attempting to cause GBH must be an alternative verdict should the intended "victim" not die would be a strange outcome because there is no intention to cause any long-lasting and serious injury: the two attempted offences have different mens rea requirements so that proof of intent to murder would not necessarily meet the requirement for s18 OAP.

Proof of mens rea

There must be more than merely preparatory acts and, although the defendant may threaten death, this may not provide convincing evidence of an intention to kill unless the words are accompanied by relevant action, e.g. finding and picking up a weapon, and making serious use of it, or making a serious and sustained physical attack without a weapon.

United States

The principle underlying the Unborn Victims of Violence Act 2004 in the United States which applies only to offenses over which the United States government has jurisdiction, namely crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military, is to treat the foetus as a separate person for the purposes of all levels of assault including murder and attempted murder:

"Sec. 1841. Protection of unborn children

(a)(1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.

(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.

2(B) An offense under this section does not require proof that--

(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or

(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.

2(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being."