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Shorter Articles And Notes

The Law Of Attempt In Realtion To Crimes, Délits And Contraventions [1]

Steven Pallot

There is seemingly a dearth of authority locally in the area of criminal attempt. Not only were the early text book writers apparently reluctant to offer any commentary on the subject; the Report of the Commissioners appointed to inquire into the state of the criminal law in the Channel Islands [2] also yielded surprisingly little. There is no entry in the Index under the word ‘attempt’. There is confirmation of that part of the Code of 1771 which confirms the Order in Council of 1635 which relates to accessories in crimes of murder or accessories "en felonie après le crime commis" who receive or help guilty persons before their conviction or who protect or help offenders to avoid justice [3], but that is of no assistance. Our Guernsey cousins of the day fared better: some light was shed in the Report on the sources of their practice in charging attempts. [4]

The Tables des Décisions [5] yield cases of attempt in which the statute itself already constitutes an attempt an offence in its own right (for example the Loi (1937) sur les étrangers and the Import and Export (Control) (Jersey) Law 1946), but, again, such cases tell us little or nothing of the underlying customary law.

However, the case of Att. Gen. v Smith and Didsbury appears to confirm (albeit indirectly) that the concept of attempt is recognised in a general sense. The case was an appeal to the Court of Appeal against convictions for breaking and entering. The Court’s judgment contains the following passage -

"Counsel for the appellants criticised the summing up for making no mention of an attempt, and the Attorney General informed us that the matter was not canvassed at all during the hearing or referred to in any way by the prosecution. In these circumstances one can understand that the Learned Bailiff did not direct the jury upon it in his summing up, though we think it would have been better for the jury to have been told that it was open to them to convict of the attempt if they were satisfied in all other respects and in particular as to the intention to steal, but did not find that the entering was made out. The Attorney General …. [invited] the Court to consider using its power under Article 26(2) of the Court of Appeal (Jersey) Law 1961 [6] to substitute for the verdict appealed from, a verdict of guilty of an attempt, but in the light of our opinion about the intention to steal, this is not a course which we could consider taking". [7]

The case of Ruban v Att. Gen. [8] is of limited relevance because it involved a contravention where the wording of the statute actually constituted an attempt (to drive a motor vehicle under the influence of drink) an offence in its own right. It is not authority for the proposition that a statutory offence which does not contain elements of attempt within its own wording can be charged on evidence of attempt only.

There are several instances of attempt at a crime being charged, e.g. attempted rape [9] and attempted sodomy [10] . Indeed there can be no doubt that an attempt at a crime is an offence in its own right. What is not clear is whether the same can be said of délits and contraventions and whether, in relation to an attempt to commit a crime, the attempt itself ranks as a crime or a délit. If it be the latter, the charge would then be caught by the prescriptive period for délits i.e. 3 years. In order to shed light on these questions, it is necessary to go beyond the scarce material available in Jersey. Some guidance can be derived from both -

(a) the earlier English common law; and

(b) pre-Revolutionary French customary law.

English common law

Russell [12] states clearly the original common law position:-

"It is a misdemeanour indictable at common law to attempt to commit any felony, including felo de se, or any misdemeanour, whether such felony or misdemeanour is an offence at common law or is created by statue.

In certain cases …. the attempt to commit an offence is by statute punishable in the same manner as the completed offence, or is specifically punished as a substantive felony or misdemeanour.

No act is indictable as an attempt to commit felony or misdemeanour, unless it is a step towards the execution of the criminal purpose, and is an act directly approximating to, or immediately connected with, the commission of the offence which the person doing it has in view. There must be an overt act intentionally done towards the commission of some offence; one or more of a series of acts which would constitute the crime if the accused were not prevented by interruption, or physical impossibility, or did not fail, for some other cause, in completing his criminal purpose".

It is tempting to fix upon the words "whether such felony or misdemeanour is an offence at common law or is created by statute" and to conclude that, just as no distinction was made between felonies and misdemeanours whether created at common law or by statute, so Jersey law need not make any distinction between offences, be they customary law crimes and délits or statutory contraventions. There is however a pertinent distinction between English common law and Jersey customary law. English offences were only ever felonies or misdemeanours whether or not their origins were in common law or statute. It was a bi-partite distinction with no third species of offence equivalent to a contravention.

Jersey statutes occasionally have created crimes or délits as opposed to contraventions. Article 2 of the Loi (1884) sur les matières explosives [13] deems the offender ‘coupable de crime’. The offence is therefore not a contravention, but a crime. Similarly, the Loi (1895) modifant le droit criminel provides that certain offences shall constitute délits. The vast majority of statutory offences however rank simply as contraventions.

If crimes and délits were to be equated for the purpose of attempts with felonies and misdemeanours, attempts at either would presumably rank as a délit. It is not clear however where this would leave contraventions the vast majority of which have not been categorized by the statute creating them either as a crime or as a délit.

The position in French law

French law makes a tri-partite distinction between crimes, délits and contraventions. However, that distinction is something of a faux ami bearing but superficial resemblance to the distinction in Jersey law. The Code Pénal provides that an attempt to commit a crime is automatically punishable as the crime itself [14], but that an attempt to commit a délit is punishable only if this is expressly provided for. [15]

Clearly the Code is of no relevance unless it can be shown to reflect pre-existing customary law which might have been acknowledged in Jersey. One must seek therefore to trace the derivation of these provisions in the Code Pénal to establish what relevance the distinction between crimes, délits and contraventions at customary law had in relation to attempt (‘tentative’).

Dalloz [16] devotes no less than 119 paragraphs to the subject of ‘Tentative’. What appears to emerge from his analysis of ‘notre ancien droit’ [17] is that, following Roman law, the charge of attempt could be brought in relation to heinous offences such as treason, assassination, patricide, poisoning, etc. and that any attempt ranked as a crime in its own right. However there was a different régime for lesser offences whereby attempts could be punished, but the sentence was mitigated the more remote the act constituting the attempt was from the consummated offence. Thus what appears to have developed was a broad distinction between attempts at crimes which tended generally to be treated as the self same thing as the consummated crime and attempts at délits which were potentially punishable depending on the proximity of the act to the consummated offence. The dividing line was imprecise and called for codification - which of course came abruptly with the Revolution. After one or two earlier versions, the Code Pénal of 1810 settled on the distinction which exists to this day between crimes, where attempts are punishable in their own right, and délits, where attempts are not so punishable unless an enactment so provides. In relation to contraventions [18] the very notion of attempt is generally absent.

Jersey law

Jersey law sits uneasily between old English, and old French, law. The few authorities there are do not purport to offer guidance of substance on the underlying customary law. It is therefore difficult to predict how the Royal Court would treat the subject.

Perhaps the origin of the distinction between crimes and délits offers clues about the law of attempt. Délits, as their name suggests, were essentially torts, proceedings for which were brought by the victim who convened the Attorney General by adjonction. The Court could then dispose of the criminal as well as civil elements of the case. There was apparently no discretion in the Attorney General to prosecute if the victim did not complain [19] . It is difficult against this background to see how, originally, there could have been proceedings in respect of an attempted délit any more than there could have been a claim in damages for an attempted tort. However, the cause en adjonction was by the time of the Commissioners Report of 1847 no longer the vehicle by which prosecutions for délits were brought. With the growth of the police force, délits came to be regarded as simple criminal offences, analogous to misdemeanours, to be prosecuted independently of civil delictual proceedings.

If the Royal Court were to lean towards the English common law position, a délit would now be as much susceptible of attempt as was the English misdemeanour. If the Royal Court were to lean in the direction of French law, there would be a presumption against a délit being susceptible of attempt in the absence of legislative provision to that effect.

The French analysis is more consistent with the old quasi civil status of a délit. However, the English analysis is more consistent with the present day simple criminal status of a délit. It does in these circumstances seem open to the Court to hold that crimes and délits can be equated for the purposes of attempt with felonies and misdemeanours.

On this basis an attempt at either a crime or a délit may be charged in its own right. But we still must decide whether an attempt at a crime ranks as a crime or as a délit. This is relevant because, as already pointed out, proceedings for a délit have to be brought within three years [20] . English law, if applied by analogy, would seem to bring about the result that such an attempt should rank only as a délit. French law on the other hand would be more favourable to the prosecution because an attempt at a crime would rank as a crime and not as a délit and could therefore be prosecuted at least within 20 years of its commission or indeed might well be imprescriptible [21] . It would seem odd if, for example, an attempted murder ranked as a mere délit and so, perhaps in this respect at least, French rather than English law yields a more logical result. Guernsey law seems to follow French law in this particular respect. [22]

If it is possible to adopt elements of both English and French law in this way, the upshot would be in relation to crimes and délits that an attempt at either should be an offence charged in its own right: if a crime as a crime; if a délit, as a délit.

But where does this leave contraventions? [23]

It is submitted that, unless the statute creating the offence refers to attempt or conveys an intention in the legislature to render an attempt an offence in its own right, there is no authority at customary law to charge a person with an attempt to commit a contravention. It is immaterial that many felonies and misdemeanours in England were the creation of statute. The distinction between criminal offences in England was only ever bi-partite and not, as in Jersey, tri-partite. A contravention is a separate species of offence in its own right without any customary law attribute beyond the statute creating it. Only if the offence is stated to be a crime or a délit can it take on any customary law attribute, including the ability to charge an attempt. Thus, in the absence of express provision in the wording creating a statutory offence, attempt cannot be charged no matter how serious the offence.

The existing position in England and Wales is governed by the Criminal Attempts Act 1981 which renders all indictable offences (including offences triable either way) susceptible of prosecution for attempt. Thus there is no need in draft legislation creating an indictable offence to make provision for attempts. If the same offence were however to be created in Jersey legislation, the draftsman would have to be alert to the need to make express provision with regard to attempts. Indeed the English position bears resemblance to the French position under which crimes are automatically susceptible of prosecution for attempts. The difficulty in Jersey is the complete absence of any categorization of statutory offences. There is no such thing as an offence triable only on indictment or triable only summarily. In effect all offences are triable either way. The absence of any categorization removes a yardstick which might otherwise determine which offences should be susceptible of prosecution for attempt and which should not. To introduce legislation in Jersey along the lines of the Criminal Attempts Act would require a categorization of offences in such a way that they could be specifically identifiable as those which correspond to indictable offences (or to crimes in the modern French context).

It must of course be borne in mind that existing local statutes do often make provision regarding attempts. For example, offences relating to importation of drugs comprehend knowingly being concerned in carrying, removing, handling, keeping or concealing or in any manner dealing with any goods and, in relation to evasion of duty, any attempt at evasion of duty and so on. Thus activity involving attempt is in this instance already an offence.

Other enactments such as Article 12 of the Depositors and Investors (Prevention of Fraud) (Jersey) Law 1967 already refer to attempts. As mentioned briefly above, the case of Ruban was concerned with the interpretation of Article 16 of the Road Traffic (Jersey) Law 1956 which already criminalises attempts to drive a vehicle while intoxicated.

As stated, English law is governed by the Criminal Attempts Act 1981. Section 6 of that Act abolished the offence of attempt at common law in favour of the statutory offence of attempt under section 1 which applies generally to attempts to commit indictable offences. Whilst the terminology of the 1981 Act is not at all well suited to Jersey criminal law, there is arguably a need for a Criminal Attempts (Jersey) Law to resolve the uncertainty which seems to pervade the customary law in this field.

Steven Pallot is an advocate of the Royal Court and is a legal adviser in the Law Officers’ Department, Jersey.