R v Husseyn (Ulus)
Court of Appeal
Citations: (1978) 67 Cr App R 131.
The police spotted the defendant standing in the middle of the road by a parked van, looking up and down. Moments later, an alarm went off. At that point, the police realised that another person was tampering with the van’s back door. When a police officer approached the van, both men fled. Inside the van was some valuable equipment.
The defendant was convicted of attempted theft of the equipment. He appealed his conviction on the grounds that the acts done to break into the van were merely preparatory and so did not constitute an attempt. He also denied that he had any intention to steal: he only had a conditional intention to take something if it was valuable, and they did not know what was in the van. The trial judge had directed the jury that this was sufficient, which the defendant argued was a misdirection.
- Was interfering with the van door more than merely preparatory to the offence of theft?
- Did the defendant have the mens rea of attempted theft of the equipment?
The Court of Appeal overturned the conviction. The first ground of appeal failed: the men were engaged in more than merely preparatory steps. They declined to define when an act was more than merely preparatory. However, they held that it was sufficient in this case that if the men had not been interrupted in opening the van door, the next step would have been taking the valuables inside the van.
More problematic was the trial judge’s direction on mens rea. To establish attempted theft, the prosecution had to prove that the defendant had a ‘present’ intention to steal the equipment when he performed the more than merely preparatory act. A conditional intention to steal something only if there are valuables is not a present intention to steal the specific property. The judge’s direction had therefore been incorrect and the conviction was unsafe.
This Case is Authority For…
To establish attempt, the mens rea of the substantive offence must exist at the time that the defendant takes the more than merely preparatory step.
While a conditional intention can be sufficient for an attempt, the prosecution must be careful in wording its indictments. A defendant who is indicted for attempting to steal a specific piece of property within a van cannot be convicted if all he had was conditional intent without knowledge of exactly what is within the van. Instead, the defendant must be indicted for attempting to steal ‘the contents of the van’, or the indictment can omit to specify the relevant property.