ⓘ Attempted murder

Attempted murder

ⓘ Attempted murder

Section 239 of the Criminal Code makes attempted murder punishable by a maximum of life imprisonment. If a gun is used, the minimum sentence is four, five or seven years, dependent on prior convictions and relation to organized crime.


1.1. United Kingdom England and Wales

In English criminal law, attempted murder is the crime of simultaneously preparing to commit an unlawful killing and having a specific intention to cause the death of a human being under the Queens Peace. The phrase "more than merely preparatory" is specified by the Criminal Attempts Act 1981 to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".

In England and Wales, as an "attempt", attempted murder is an offence under section 11 of the Criminal Attempts Act 1981 and is an indictable offence which carries a maximum penalty of life imprisonment the same as the mandatory sentence for murder. The corresponding legislation for Northern Ireland is section 31 of the Criminal Attempts and Conspiracy Northern Ireland Order 1983 No.1120 N.I.13).

The mens rea Latin for the "guilty mind" for murder includes an intention to kill or cause grievous bodily harm where there is virtual certainty of death resulting, whereas attempted murder depends on an intention to kill and an overt act towards committing homicide. Attempted murder is only the planning of a murder and acts taken towards it, not the actual killing, which is the murder. This makes the offence very 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


1.2. United Kingdom 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.


1.3. United Kingdom Duress, necessity and marital coercion

The defences of duress and necessity are not available to a person charged with attempted murder. Conversely, the statutory defence of marital coercion is, on the face of the statute, available to a wife charged with attempted murder.


1.4. United Kingdom History

Prior to 1967, sections 11 to 15 of the Offences against the Person Act 1861 created a number of offences of attempting to commit murder by various specified means ss.11 to 14, and an offence of attempting to commit murder by any means not specified in those offences s.15.

After the repeal of these offences by the Criminal Law Act 1967, attempted murder was allowed to subsist at common law until the enactment of the 1981 Act.


1.5. United Kingdom Scotland

Attempted murder is a crime at common law in Scotland. Attempted murder is the same as the offence of murder in Scottish law with the only difference being that the victim has not died. The offence of murder was defined in Drury v HM Advocate:

Intention can be inferred from the circumstances of the case. Wicked recklessness is determined objectively and is "recklessness so gross that it indicates a state of mind which falls to be treated as wicked and depraved as the state of mind of a deliberate killer." As with all common law offences in Scotland, the maximum punishment available is life imprisonment.


2. United States

In the United States, attempted murder is an inchoate crime to the U S. A conviction for attempted murder requires a demonstration of an intent to murder, meaning that the perpetrator either tried to murder and failed e.g. attempted to shoot the victim and missed or shot the victim and the victim survived or took a substantial step towards committing a murder e.g. purchasing a gun or other deadly weapon and writing about his or her intent to kill.

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