Commentary First Group of Parts – Discipline Criminal conduct Section 44: Trial of section 42 offence of attempt
124.This section provides for the manner in which it is to be determined, at the trial of a charge of attempt contrary to section 42, whether the defendant’s act was an attempt as distinct from mere preparation for the commission of an offence. If there is sufficient evidence to justify a finding that the act was an attempt, it is a question of fact—and therefore, in a trial by the Court Martial, for the members of the court other than the judge advocate—whether the act was an attempt. The section is in similar terms to section 4(3) of the Criminal Attempts Act 1981. Section 39(8) makes corresponding provision for the trial of a charge of attempt under that section.