Four, five or seven years. That is the minimum sentence in Canada for attempted murder with a gun, depending on prior convictions and any link to organised crime. The maximum for the offence under Section 239 of the Criminal Code is life.
The bottom line: attempted murder is one of the most serious charges a prosecutor can bring, even though nobody dies. What follows is how the law draws that line in a few jurisdictions.
Intent plus action
In English law, the offence combines two things: preparing to commit an unlawful killing, and having a specific intention to cause a person’s death. Preparation on its own is not enough. The Criminal Attempts Act 1981 says the conduct must be “more than merely preparatory”. It carries a maximum of life imprisonment, the same as the mandatory sentence for murder.
Threats do not settle it either. A defendant may threaten death, but that may not prove an intention to kill unless the words come with relevant action, such as finding a weapon and using it seriously, or carrying out a serious and sustained physical attack without one.
The standard of intent is higher than for murder itself. Murder in English law can rest on an intention to kill or to cause grievous bodily harm. Attempted murder depends on an intention to kill, plus an overt act towards homicide. That makes it hard to prove, and a lesser charge under the Offences against the Person Act 1861 is often preferred. In R v Morrison, the Court of Appeal confirmed that attempting to cause grievous bodily harm is a valid alternative verdict, so a jury is not left with an all-or-nothing choice.
Defences and the Scottish approach
Duress and necessity are not available as defences. The statutory defence of marital coercion, on the face of the statute, is available to a wife.
Scotland treats attempted murder as a common law crime, identical to murder except that the victim has not died. Intent can be inferred from the circumstances. A person can also be guilty through “wicked recklessness”, judged objectively. As with every common law offence there, the maximum punishment is life imprisonment.
