• In the case of R v Gullefer [1990] 1 WLR 1063, the central issue was whether D had moved from preparing a theft to actually committing the offence – the former was adjudicated to have had occurred only

Facts of the Case

  • This case involved D’s appeal against his conviction from 26 February 1986 for breaching s.1(1) of the Criminal Attempts Act 1981 due to attempting theft worth £18 which he had bet on with a bookmaker
  • D committed this theft in an interesting way: the whole situation originated from D’s backing of a greyhound as the winner of a race; after the start of the race, D realised his chosen dog would not win, after which he went on the track to sabotage the race by waving his arms to distract the dogs so that the stewards would declare ‘no race’; D assumed that the bookmakers would return his stake, but the bookmakers were also not going to pay the successful bidders in the race
  • The theft itself was about trying to reclaim his own bet
  • D was sentenced to six months’ imprisonment

Issues in R v Gullefer [1990] 1 WLR 1063

  • The main ground of D’s appeal was that his conduct was not ‘sufficiently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft’ (as he had explained before the police
  • The main issue before the judge was to adjudicate whether there was sufficient evidence to support the argument that D had gone beyond the mere preparation of the offence to the actual commission of the crime; this was important as the judge was set to give directions for the jury to deliberate on
  • As part of his appeal, D also argued that there was no ‘property belonging to another’ as under the Theft Act 1968, as well as there was no appropriation of such property to contravene the law in a literal sense

Held by the Court of Appeal (Criminal Division)

  • Appeal allowed – D’s conviction was quashed, i.e. he was not guilty of attempted theft
  • It could not be ruled that D was in the stage of committing theft after jumping on the race track
  • D’s conduct involved only the mere preparation of the offence
  • Jumping on the tracks constituted the mere preparation of theft and not actual theft

Lord Lane CJ

Lord Lane CJ reported the panel’s consideration of the distinction between the preparation and the execution of the offence

  • ‘It seems to us that the words of the Act of 1981 seek to steer a midway course. They do not provide, as they might have done, that the Reg. v. Eagleton test is to be followed, or that, as Lord Diplock suggested, the defendant 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 circumstances on the point of time at which Stephen’s “series of acts” begin. It begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case.’ [at p.1066]

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