AG’s Reference No. 3 of 1992 [1994] 1 WLR 409

Key point

  • Proposed the missing element test for mens rea of attempt: to be liable for attempt D must intend a missing physical (actus reus) element of the substantive offence to be present


  • Ds attempted aggravated arson, being reckless whether life be endangered
  • Under s1(2) of the Criminal Damage Act 1971, recklessness as to endangerment of lives suffices for the substantive offence of aggravated arson
  • The Judge ruled that the danger to life was a consequence of the intended damage and required a specific intent so that recklessness was insufficient and since the evidence did not support specific intent; she directed D be acquitted
  • The AG referred the case for opinion whether recklessness is sufficient

Held (Court of Appeal)

  • Appeal dismissed – the appropriate mens rea for attempted aggravated arson is intention to damage property and recklessness as to the endangerment of life

Schiemann J

The ‘missing element test’

  • “One way of analysing the situation is to say that a defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence and did his best, as far as he could, to supply what was missing from the offence.”

Current case

  • The prosecution must prove that the defendant intended to supply missing physical elements of the completed offence
  • The endangerment of life is not a physical element of the substantive offence but a pure mental element since it is not necessary to show that anybody’s life has been endangered; it suffices that the defendant had unjustifiably foreseen the risk of such endangerment
  • Hence, intention to damage property and intent or recklessness to endangerment of life


  • Matthew Dyson states that under this “missing element” test, D would be liable for an attempt where he was reckless about external elements that have come about (if recklessness suffices for the complete offence), but intends any that have not occurred. This might even mean D is liable where he was reckless about consequences which had occurred and intended (missing) circumstances, though such situations will be rare
Inchoate Liability Cases