A Guide to Attempted Murder Defences

Attempted murder is one of the most serious offences you can be accused of in England and Wales. If you have been arrested and charged with attempted murder, you are probably questioning your actions, your motives, and your options – that is, if you were involved at all. Regardless of whether you were involved, you are probably wondering what will happen at trial and whether you might have a viable defence. This article provides an overview of the offence of attempted murder and looks at the types of evidence that are likely to come up in your case. It also confirms the maximum sentence for attempted murder, and, importantly, consider the defences that you might be able to rely upon.

An overview of the offence of attempted murder

Attempted murder is a criminal offence relating to an unsuccessful effort by the defendant to kill the victim. The prosecution must show that the defendant attempted to kill another living human (not a foetus, as this would come under a separate offence). The perpetrator must be an individual, not a company or an organisation.

The prosecution will be trying to prove that the defendant intended to kill the victim at the time of the event. This is a higher threshold than the mental intention required for murder cases, where it is enough to show that the defendant intended to cause serious harm. Importantly, there does not need to be direct evidence that the defendant intended to kill the victim. This means the court can interpret the defendant’s intention from the circumstances.

The legal test for ‘attempting’ to commit an offence is set out in the Criminal Attempts Act 1981. The law says that for an attempt at murder to have been made, the court must consider whether the defendant did something that was ‘more than merely preparatory’. In other words, to be convicted of attempted murder you need to have done more than just make basic preparations.

Interestingly, you can be convicted of attempted murder even if the facts are such that it would not have been possible for you to actually kill the person. For example, if you pulled the trigger of a gun pointed towards the victim, believing that it was loaded and intending to kill them, but it was actually empty.

What kind of evidence is used in attempted murder cases?

The evidence that the prosecution will rely upon in an attempted murder case depends heavily on the circumstances. The prosecution will need to gather evidence of the actions that you took to plan the alleged murder attempt. For example, did you obtain a weapon or arrange for how the death would occur? If the attempted act took place in a public area, the police will obtain any available CCTV footage. Witness testimonies of anyone who was present or had knowledge of the events are likely to be key evidence as well. When you were arrested, the police undoubtedly took biometric information such as your fingerprints and potentially a DNA sample. They may try to use this to link you to the scene of the crime.

The prosecution will also need to find evidence that you intended to kill the victim. The court will consider any communication that you had with the victim or other relevant individuals. For this reason, the police may well seize electronic devices such as your mobile phone and computer to search for text messages, emails, and internet browsing history. A medico-legal expert such as a psychiatrist may be asked to prepare a report on your state of mind at the time of events. Most importantly, your own testimony, if you choose to give one, will be essential evidence. If you’re not sure whether you should give testimony, ask a solicitor for advice.

What is the maximum sentence for attempted murder?

If you are convicted of attempted murder, you will receive a custodial sentence (i.e. a prison sentence). The maximum sentence is life imprisonment, but depending on the seriousness of the offence, you may receive a sentence of somewhere between 3 and 40 years, according to the Sentencing Council.

When considering what sentence to give you, the judge will consider aggravating and mitigating factors. An aggravating factor is one that increases the seriousness of the offence. For example, if you abused a position of trust, or if the victim was particularly vulnerable or was performing a public service.

A mitigating factor is one that may help to reduce the sentence you are given. This might include if you were suffering from mental health issues at the time of the offence, or if you were acting in response to fear or provocation.

Sentences for attempted murder vary hugely depending on the facts of the case, and it is difficult to generalise. You should ask a solicitor for specialist advice on your case.

What are the applicable attempted murder defences?

 This section explores the legal justifications to attempted murder. These fall into two categories: partial defences and complete defences.

Partial defences

Partial defences try to establish that you did not have the intention to kill or commit serious harm required by the law to convict a person of attempted murder. If successfully argued, partial defences may lead to you being convicted of a lesser offence. Here are some that can apply to attempted murder:

• Diminished responsibility: This is where the court finds that you were suffering from an abnormality in mental functioning linked to a recognised medical condition that provides an explanation for your behaviour. The court must find that your mental condition stopped you from:
  • understanding the nature of your conduct; and/or
  • forming a rational judgment; and/or
  • exercising self-control.
• Loss of control: This defence applies where the defendant suffered from a loss of control, but it only applies in certain circumstances. The court must find that a person of your age and sex, with a normal degree of tolerance and self-restraint, might have acted in a similar way to you in the circumstances. You must have acted out of a justifiable sense of being wronged, and the wrong must be of an extremely grave character. The law says that you cannot rely on the sexual infidelity of your partner, the breakdown of a relationship, or the desire for revenge (for whatever reason) as a trigger for your loss of control.
• Suicide pact: If you entered into a suicide pact, where you attempted to kill the other person, and the court is satisfied that you had the settled intention to die yourself, you may be able to rely upon this defence.
• Intoxication by drugs or alcohol: It stands to reason that courts are reluctant to accept voluntary intoxication as an excuse for criminal behaviour. However, if you were intoxicated at the time of events, it may be found that you did not have the necessary mental intention to commit murder. This could lead to you being convicted of a lesser offence if, for example, it was found that your drink was spiked by someone and you weren’t able to ‘think properly’.

Complete defences

Complete defences are powerful in that a valid complete defence may lead to you being acquitted altogether, or convicted of a lesser offence. This could mean you avoiding prison altogether, or just getting a shorter sentence.

Most defence strategies will focus on the fact that you did not intend to kill the victim. If, for whatever reason, this strategy is not strong enough, your solicitor may advise that you seek to rely on one of the following defences:

• Self-defence: The law says that if you are attacked, you may use the force that is reasonably necessary to defend yourself, or another person, to prevent crime, or to conduct a lawful arrest. The extent to which you can rely on self-defence for attempted murder is highly fact-dependent, and you should consult a solicitor for advice on the circumstances of your case. What’s key is that the force you used was reasonable: you can’t claim self-defence if you ‘over-reacted’ to the threat presented by another person’s reactions.
• Automatism: If you were not aware of your actions when committing the offence, in some rare circumstances, you may be able to rely upon the defence of automatism. This defence has been used successfully for crimes committed by a person whilst sleep-walking, for example. Generally, if you were under the voluntary influence of alcohol or illicit drugs you will not be able to rely on this defence.
• Insanity: If the court finds that due mental illness, you lacked the ability to reason such that you did not know that the act that you were doing was against the law, you may be acquitted on the grounds of insanity. If you succeed in this defence, however, you may be detained under the Mental Health Act of 1983 on the basis that your mental condition poses a risk to others in society (the NHS has some useful guidance on this).
• Mistake: If you were mistaken as to certain circumstances and would not have committed the offence if you had known otherwise, you may be able to rely on mistake. There is an ongoing debate in legal circles about whether this defence can apply to attempted murder. If you feel this defence might apply to your case, consult a solicitor for more information.

What will a successful defence achieve?

A successful defence may lead to you being acquitted altogether or convicted of a lesser charge (resulting in a shorter prison term).

Where can I find help with attempted murder offences?

 If you or a loved one has been accused of attempted murder, contact the experts at Stuart Miller Solicitors. Our friendly team has decades of collective experience defending attempted murder cases, and we will provide you with robust advice on your case. Contact us today for a no obligation consultation.

(This page was last updated on November 21, 2023.)