CRIMINAL ATTEMPT

A COMPARITIVE ANALYSIS OF INDIA , UK AND US

CHAPTER – 1

INTRODUCTION

Criminal law punishes not only completed crimes but also conduct short of
completion of a crime. Criminal attempt falls in the category of inchoate crimes.
The law of attempt continues to be somewhat enigmatic and notorious for its
intricacies. The factors that contribute to the unusual state of the law at present are:
First, a lack of a precise legislative definition of the inchoate offence; Second,
mental and physical ingredients varying considerably with the nature of the
substantive offence attempted; and third the possibility of a 'broad' or 'narrow'
interpretation of the offence by the courts in view of the prevailing penal policy.1
The confusion arises, because courts are doing inconsistent things with similar fact
situations and also because courts are attempting to apply the same rule to utterly
dissimilar situations. 2The problem has eluded solution so far. Perhaps the principal
reason for this is that its history has been neglected. 3A brief historical survey of
the law of criminal attempt may thus be useful in the formulation of this problem.
4
The dangers threatening peace and safety in a society like that of sixteenth century
England must have prompted the court of Star Chamber to punish a large number
of potential harms, hoping to nip anticipated violence in the bud itself. Initially5,
the repression of attempts is to be found

1
B.B. Pandey, "An Attempt on Attempt" (1984) 2 SCC (four) 42.
2
Arnold T.W., "Attaempt in Criminal law", 40 Yale L.J. 53.
3
Hall, General Principles of Criminal Law 553 (2 nd Ed.). Prof. Hall explains social and psychological factors have
had great influence upon the law of criminal attempt, especially in determining the relevant harm or at least, what
was regarded as sufficiently harmful to warrant penalisation. The legal history also disclosed that there is an
irreducible element of experience in law that cannot be persuasively dissolved in logical analysis and which penal
theory must somehow take into account". Id . at 553.
4
For an analysis of the law of criminal attempt in historical perspective, See Hall, Id, at 553; Holdsworth, History of
English Law, vol. V., p. 200, Sayre, "Criminal Attempts" 41 Harvard Law Review, 821.
5
K.N. Chandrasekhjaran Pillai, General Principles of Criminal Law,[20Q?i) p. 199.

1
as an exercise of criminal policy6. In the measures adopted by the Star Chamber.
Th e English common law did not have any law of criminal attempt till the 18th
century7. The influence of the Star Chamber is evident on common law in this
regard8. The doctrine of attempt originated in England in Rex v. Scofield9, a case
of attempted arson and was finally formulated in Rex v. Higgins10, which
concerned solicitation11 to steal certain goods. In Scofield's case overt behaviour
was held to be a criminal attempt but the Higgins case went further in establishing
criminality on a lesser degree of overt behaviour viz., solicitation. These cases
provide an important clue to the necessity of development of the law of criminal
attempts, namely that the standard technique of 'assault plus aggravation', a species
of attempt, in common law could not be literally applied to check all kinds of
harm. This suggests that harmful tendencies of aggravated nature were to be made
punishable as criminal attempt and this remain s the underlying policy of the law
even today.

6
Kenny , Outlines of Criminal law, (17th Ed. by Turner) 89 "The Romans punished attempts to commit ordinary
crimes occasionally and by a smaller penalty but in atrocious crimes emphasis was laid on intent rather than on
actual harm." (Hall , id. At . 559).
7
Pollock & Maitland, History of English law, vol. 2 508, In (1784 the doctrine of criminal attempt originated in the
case of Rex v. Scofield (Perkins, Cases on Criminal Law & Procedure, p. 283).
8
Holdsworth, History of English law, vol. p. 201. Sayre, supra note 4, however, rejects the view that the Star
Chamber doctrine was taken over by the common law courts.
9
Rex v. Scofield, (1784) Cald. (387), Perkins, Cases on Criminal Law and Procedure, p. 283. In this case Lord
Mansfield observed: "When an act is done the law judges, not only of the act done, but of the intent with which it is
done, and, if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been
innocent, the intent being criminal, the act becomes criminal and punishable.
10
Rex v. Higgins, 102 E.R. 269 (1801).
11
Incitement, conspiracy and attempt were 'intermingled with each other till the 18th century, Kenny, supra note 6 at
87.

2
Recently, the apex court in Aman Kumar v. State of Haryana12 .explained the
necessity to punish the offence of attempt. It observed:13 An attempt is made
punishable, because every attempt, although it falls short of success, must create
alarm, which by itself is an injury, and the moral guilt of the offender is same as if
he had succeeded. Moral guilt must be united to injury in order to justify
punishment. As the injury is not as great as if the act had been committed, only
half the punishment is awarded. It further observed:14 The word "Attempt" is
nowhere defined, and must, therefore, be taken in its ordinary meaning. This is
exactly what the provisions of S. 511 require. The commission of a crime goes
through three processes viz., (i) conceiving an intention to commit a crime, (2)
preparation for its commission (3) and an attempt to commit it. Generally, the first
two stages are not punishable but once an act enters into the third stage criminal
liability arises. Thus an attempt to commit a crime forms part of a series of
acts.15The reason why the first two stages in the series, that of mental
determination and that of preparation are not punished is that they are too remote
from the completion of the crime whereas the stage of attempt takes the offender
very close to successful completion of the crime. The problem for the law to decide
is whether that stage when he ought to be punished has been reached. As to when a
preparation ceases and attempt begins is a difficult problem to solve. There is a
marked difference between preparation and attempt. 16 However, much will depend
upon the facts and circumstances of the case, but four different approaches have
been worked out with a view to laying down a uniform test of general applicability
to determine the dividing line between preparation and attempt. The Supreme
Court in State v. Mobd Yakubls tried to define attempt. justice Sarkaria
observed:17 What constitutes an attempt is mixed question of law and fact

12
(2004) 4 SCC 379.
13
Id. at 387, para 8 . See also Koppula Venkata Rao v. State of A.P., (2004) 3 SCC 502, para 8 at 605.
14
See also, id. at 387, para 9.
15
State v. Narayan Singh , AIR 1989 SC 1789. See also Aman Kumar v. State o/Haryana, (2004) 4 SCC 379.
16
Balai Chandra Biswas v. State ofW.B., (1994) 1 SCC 423 at 425.
17
Id. at 62.

3
depending largely upon the circumstances of a particular case. "Attempt" defies a
precise and exact definition. Broadly speaking , all crimes which consist of the
commission of affirmative acts are preceded by some covert or overt conduct
which may be divided into three stages. The first stage exists when the culprit first
entertains the idea or intention to commit an offence. In the second stage he makes
preparation to commit it. The third stage is reached when the culprit takes
deliberate overt act or step to commit the offence. Such overt act or step in order to
be 'criminal' need not be the penultimate act towards the commission of the
offence. It is sufficient if such acts were deliberately done, and manifest a clear
intention to commit the offence aimed, being reasonably proximate to the
consummation of the offence. Chinappa Reddy J also expounded the definition of
an attempt thus:18 In order to constitute an 'attempt' first, there must be an intention
to commit a particular offence, second, some act must have been done which
would necessarily have to be done towards the commission of the offence and,
third, such act must be proximate to the intended result. The measure of proximity
is not in relation to time and place but in relation to intention. It appears that justice
Chinappa Reddy's explanation goes well with the underlying philosophy of
punishment for attempt. He rightly gives emphasis on intention rather than
physical proximity of the act to the commission of the crime. Intention is the
direction of conduct towards the object chosen upon considering the motives which
suggest the choice.19 As regards the test for finding out whether a specific act was
done with necessary or requisite intention, the court held that the intention has to
be gathered from all circumstances, and not merely from the consequences that
ensue. The nature of the weapon used, manner in which it is used* motive for the
crime, severity of the blow, the part of the body where the injury is inflicted, are
some of the factors that may be taken into consideration to determine the
intention.20.

18
Id . at 66.
19
Aman Kumar v. State ofHaryana, supra note 13.
20
Harikisban v. Sukhbir Singh, AIR 1988 SC 2127 para 7 at 2130.

4
 CHAPTER – 2

The Indian Penal Code, besides, dealing with the law of criminal attempts in a
specific and general way,21 contemplates provisions to arrest criminality in
incipient stages too.22 The Code deals with attempt in three difficult ways viz. )

In some cases the commission of an offence and the attempt to commit it, are dealt
with in the same section, the extent of punishment being the same for both.23

(ii) The second way of dealing with attempts is exemplified by Ss. 307, 308, 393
Indian Penal Code. In these sections attempts for committing specific offences are
dealt with side by side with the offences themselves, but separate punishments are
provided for the attempts and for the offences.

(iii) The third mode is embodied in S. 511 which is a general provision designed
to cover cases falling outside the above two categories. The absence of the
definition of the attempt to commit offences made the courts in course of time to
evolve certain tests to determine whether the act in question amounts to attempt.

Proximity rule: The rule has been stated thus, "it seems that the act of the accused
is necessarily proximate if, though it is not the last act that he intended to do, it is
the last that it is legally necessary for him to do if the result desired by him is
afterwards brought about without further conduct on his part."24 The rule is a
combination of principles laid down in a numbe r of decided cases e.g. an act of
attempt must be sufficiently proximate to the crime intended,25 it should not be
remotely leading towards the commission of an offence,26 it must contribute an
antepenultimate act27 and that the act done should place the accused in a relation

21
S. 511, IPC.
22
Ss. 122, 126, IPC ; Ss. 233 , 234, 235, IPC; Possession of counterfeit coins, false weights and forged documents
etc.
23
E.g., Ss. 121 , 124-A, 161, 291. IPC.
24
Williams G., Criminal Law (General Part), 481.
25
Id. at 477 "It seems to be a question for the judge whether the act charged as the attempt satisfied this
requirements.”
26
Eagleton (1855) 169 E.R., at 835, See Hope v. Brown (1954) 1 W.L.R. 250, See Russell on Crimes, (11th Ed. by
Turner) p. 190.
27
Linneker (1906) 2 K.B. 99.

5
with his intended victim.28 The test of proximity at common law was expressed in
various ways. One way which gave attempts very narrow scope, was that of Lord
Diplock in Stonebouse , that only acts "immediately connected" with the offence
can be attempts. The liability in attempt is based on the overt act done by the
accused which falls short of the actual offence stage e.g. one may have fabricated a
false story of an accident with a view to claiming from the insurance company.
Where the accused were seen going towards the border with a tin case in their
hands and when they saw the nakabandi , they, immediately turned around and
ran away and were chased into the house of one of the accused where they were
found hiding the tin box in the heap of the wheat in the house, it was held that
these facts were sufficient to constitute the offence of attempting to smuggle
currency notes, it could not be said that the acts already done by the accused were
of harmless variety. The accused in Abhyanand Mishra v. State of Bihar applied to
the university for admission to appear at the M.A. examination as a private
candidate representing that he was a graduate and that he had been teaching in a
certain school. In support of his application he attached certain certificates
purporting to be from the head master of the school and Inspector of Schools. The
university authorities accepted the accused's statements and he was permitted to
appear in the examination. Subsequently, on receiving information and enquiry
thereafter the university found out that accused was neither a graduate nor a
teacher. Thereupon, he was held to be guilty under S. 429 read with S. 511, IPC. It
was observed by the court that preparation was complete when the accused
prepared the application for submission to the university and the moment he
dispatched it, he entered the realm of attempting to commit the offence of cheating.
The above principle of proximity was reaffirmed in Sudhir Kumar Mukherjee v.
State of WB,is by the Supreme Court. The defence of the accused was that at
best the act committed by the accused could be construed as preparation and that
the attempt to commit the offence had not taken place. In this case, the accused
person Sudhir Kumar Mukherjee, an employee of a firm had attempted, in
collusion with a limestone dealer, to show false delivery of limestone to his
company by forging the signatures of his superiors on the invoice, after which it

28
White, (1910) 2 K.B., 124; Linneke r, (1906) 2 K.B. 99, Vreones (1891) 1 Q.B. 360, See Emp. v. Raghunatb,
19410udh 3; Mac CRea 15 All. 173. In Robinson, (1915) 2 K.B. 342 the accused had only made preparations by
staging a fake robbery and had not placed himself in relation to the intended victim by not going further towards the
commission of fraud.

6
would be presented for payment. At the time when he was caught, he had himself
not signed the challan evidencing receipt of the goods. However, based on the
ratio of Abhayanand Mishra, the Supreme Court held that the very fact that a
challan, had been prepared and that the initials of the clerk concerned had been
obtained by the accused on the challan, showed that the definite step had been
taken by the accused in committing the offence of cheating. The court held that
while it was true that the accused had not himself affixed his signature and stamp
on the challan, which was necessary for the supplier to claim payment for supply
of limestone from the company, the acts of the accused had crossed the stage of
preparation into the realm of attempt. The accused was, therefore, convicted for the
offence of cheating under S. 420 read with S. 511, IPC. Thus, "Attempt" is the
direct movement towards the commission after preparations are made. The
dividing line between a mere preparation and an attempt is sometimes thin and has
to be decided on the facts of each case.29 There is a greater degree of determination
in attempt as compared with preparation.30 What is necessary to prove for an
offence of attempt is that the accused has gone beyond the stage of preparation.
31
Attempt to commit an offence can be said to begin when the preparations are
complete and the culprit commences to do something with the intention of
committing the offence and which is a step towards the commission of the offence.
The moment he commences to do an act with the necessary intention, he
commences his attempt to commit the offence.32 An attempt to commit a crime is
to be distinguished from an intention to commit it and from preparation made for
its commission. Mere intention to commit an offence, not followed by any act,
cannot constitute an offence. The will is not to be taken for the deed unless there be
some external act which shows that progress has been made in the direction of it,
or towards maturing and effecting it. Intention is the direction of the conduct
towards the object chosen upon considering the motives which suggest the choice.
33
Preparation consists in devising or arranging the means or measures necessary
for the commission of the offence. It differs widely from attempt. Preparation to
commit an offence is punishable only when the preparation is to commit offences
under S. 122 (waging war against the Government of India) and S. 399
29
Supra note 19.
30
Ibid.
31
Madan Lal v. State of jammu &Kashmir, (1997) 7 SCC 677 at 689.
32
Koppula VenkatRao supra note 14.
33
Ibid

7
(Preparation to commit decoity ).34 In order that a person may be convicted of an
attempt to commit a crime, he must be shown, first, to have had an intention to
commit the offence, and secondly, to have done an act which constitutes the actus
reus of a criminal attempt. The sufficiency of the actus reus is a question of law
which had led to difficulty because of the necessity of distinguishing between acts
which are merely preparatory to the commission of a crime, and those which are
sufficiently proximate to it to amount to an attempt to commit it.35 The difficulty
associated with the determination of 'attempt' has made the courts to evolve what is
called locuspenitentae. (ii) Doctrine of Locus Penitentae: A person attempting an
offence may abandon it at some stage before completion though initially he had the
intention. Abandonment is a defence if further action is freely and voluntarily
abandoned before the act is put in process of final execution. The Supreme Court
taking recourse of this doctrine ordered acquittal of the driver and helper of a truck
convicted of attempting to smuggle paddy out of Punjab in Malkiat Singh v. State
of Punjab. In this case, the accused driver and cleaner were intercepted at
Samalkha barrier post in Punjab, which, is about 14 miles from the Punjab-Delhi
border, driving a truck containing 75 bags of paddy. They, along with others, were
charged with the offence of attempting to export paddy in violation of the Punjab
(Export) Control Order 1959. The Supreme Court acquitted the accused
observing:36 The test for determining whether the act of the appellants constituted
an attempt or preparation, is whether the overt acts already done are such that if the
offender changes his mind, and does not proceed further in its progress, the acts
already done would be completely harmless. A different view, however, has been
followed by the Supreme Court in the years following the ruling in Malkiat Singh
case. S. 7 of the Essential Commodities Act (EC Act) provided that an offence
under S. 7 of the EC Act would be held to be committed, only when a person
intentionally contravenes any order made under S. 3 of the Act, prohibiting exports
of fertilizers. S. 7 providing for penalties was amended by Parliament in 1967 (as
consequence of the ruling in Nathulal,) to stipulate that if any person contravenes,
whether knowingly, intentionally or otherwise, any order made under S. 3, then he
would be liable for punishment. This implied that any contravention of the rules,
even at the stage of preparation, would be considered as an attempt to commit the

34
Id . at 606
35
Malkiat Singh v. State of Punjab, AIR 1970 SC 713
36
Id. At 715, para 4.

8
offence. The changed law came to be considered by the Supreme Court in the case
of State of MP v. Narayan Singh.37 The issue in the instant case was whether the
lorry and cleaner of two lorries carrying fertilizer without license, and intercepted
on the highway between Madhya Pradesh and Maharashtra would be liable for
contravention of the Fertilizers (Movement Control) Order, 1973 read with Ss. 3
and 7 of the EC Act, 1955 for attempting to smuggle fertilizers. The trial court
acquitted the accused in both cases, on the ground that the prosecution had failed to
prove that the accused were attempting to smuggle fertilizers . Since the high
court refused to intervene, the State approached the Supreme Court. The court held
that it was not a case of mere preparation, viz., the respondents trying to procure
fertilizer bags from someone or trying to engage a lorry for taking these bags to
Maharashtra. It is difficult to say that the respondents were taking the lorries with
the fertilizer bags in them for innocuous purposes or for the mere thrill or
amusement and that they would have stopped well ahead of the border and taken
back the lorries and fertihzer bags to the initial place of dispatch or to some other
place in Madhya Pradesh State itself. Therefore, these were clearly cases of
attempted unlawful export of the fertilizer bags and not cases of mere preparation
alone. If facts and circumstances prove that an attempt had been made to smuggle
out the currency, the contention of distance and possibility of his returning back or
changing of mind cannot be taken into account.38 Where the accused's truck
carrying smuggled bajra was intercepted fifty yards away from the Punjab border,
it was held that the giving of necessary thought to change of mind cannot be lost
sight of but in the instant case it could hardly be conceived that the accused
petitioner could have in a span of two to four seconds or within a distance of fifty
yards changed his mind not to take his truck across the border. It was said if the
theory of change of mind is pressed to illogical ends there would hardly be left any
field for the penal clause of attempt to cover the distance between preparation and
actual commission.39 (iii) Equivocality Test: Suggests that an act is proximate if,
and only, if it indicates beyond reasonable doubt what is the end towards which it
is directed.40 The actus reus of an attempt to commit a specific crime is constituted
when the accused person does an act which is a step towards the commission of

37
AIR 1989 SC 1789; 1989 Cri LJ 2106.
38
Hazara Singh v. Union of India, (1973) 3 SCC 401
39
54. Darbara Singh v. State ofHaryana, 1980 Cri LJ 1157
40
Supra note 28 at 483.

9
that specific crime and the doing of such act cannot reasonably be regarded as
having any other purpose than the commission of that specific crime."41 In other
words, acts must be unequivocally referable to the commission of crimes and must
speak for themselves. 42This theory has found its application in courts in
Newzealand. Prof. Williams, however, is of the opinion that a strict application of
the test would acquit many undoubted criminals. Intention followed by preparation
is not sufficient to constitute an attempt. But intention and then preparation must
be followed by an act towards the commission of crime.43 The act must reveal with
reasonable certainty in conjunction with other facts and circumstances an intention
to commit the particular offence. The Supreme Court has explained that in cases of
attempt to commit murder by fire arms, the act amounting to an attempt to commit
murder is bound to be the only and the last act to be done by the culprit. Till he
fires he does not do any act towards the commission of the offence and once he
fires, and something happens to prevent the shot taking effect, the offence of
attempt to commit murder is made out.44 In another case, a government stockist
removed eighty bags of rice from the godown of which he was incharge and
concealed them in a room with a view to sell them, and appropriate the sale
proceeds to himself , but before he could do so the matter was detected. It was held
by the apex court that an attempt to commit an offence was an act, or series of acts,
which led inevitably to the commission of the offence, unless something, which the
doer of the act or acts neither foresaw nor intended, happened to prevent this. An
act done towards the commission of an offence which does not lead inevitably to
the commission of the offence unless it is followed and perhaps, preceded by
other acts is merely an act of preparation.

(iv) Social Danger Test: The seriousness of the crime attempted has been one of
the criteria in deciding the liability in cases of attempt. If the facts and
circumstances of a case lead to the inference that the resultant consequences woul
d have been grave, the crime of attempt is complete. In fact it is the apprehension
of social danger which the particular crime is calculated to excite, that determines
liability for an attempt. The test is very similar to the rule enunciated by Prof.
Williams with the difference that here the consequences of circumstances and the

41
Turner, Modern Approach to Criminal Law p. 279
42
Turner, "Attempts to Commit Crimes" in ibid. (Ed. Davis) p. 280; Salmond, Jurisprudence (6th ed.) p. 346
43
Asgarali Pradhania v. Emperor, AIR 1933 Cal 893
44
Om Prakash v. State of Punjab, AIR 1961 SC 1781. See also Hazari Singh v. Union of India, AIR 1973 SC 62

10
gravity thereof are inferred from the totality of facts whereas in the latter case a
mer e fragment of an action, if it is a final link in the chain of penultimate acts,
makes a person liable of criminal attempt. 45 As crimes against women are crimes
against society in such cases courts, generally, have taken a strict view.46 It would
be incorrect t o say that the courts have decided cases with strict reference to one
rule or the other. The above tests have been extracted from the decided cases in the
common law system. In cases of attempt the main difficulty arises in drawing a
dividing line between the stages of preparation and attempt and it need be
examined, if, any one or more of the above tests suggested can serve a useful
guide in determining the above problem .

45
The decisions in Reg. v. Ramsaran, 4 N.W.P. 46 and Reg. v. RiasatAli, (1881) 7 Cal. 352 can be explained with
the help of rule (iv) and rule (i) respectively. See also Chittaranjan Chaudhry v. State of Bihar, (1987) 2 SCC 104.

11
 CHAPTER – 3
The general principles relating to criminal attempts have been laid down in S. 511,
Indian Penal Code, which runs as follows: Whoeve r attempts t o commit an
offence punishabl e by this Cod e with imprisonment for life or imprisonment, or
to cause such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express provision is made
by this Code for the punishment of such attempt, be punished with imprisonment
of any description provided for the offence, for a term which may extend to one
half of the imprisonment for life or, as the case may be, one half of the longest
term of imprisonment provided for that offence or with such fine as is provided for
the offence or with both. An attempt on the part of the accused is sine qua non for
the offence under S. 51l.47 There is difference of opinion in regard to the language
and scope of this section. One view is that certain words in the section seem
redundant because the very essence of the idea of an attempt being something done
towards the commission of the act attempted to be done, the words "and in such
attempt does any act towards the commission of the offence" seem
superfluous.48This view gains strength from the fact that in dealing with attempts
in the two other modes mentioned above no such qualifying words are used. But
there is scarcely any evidence to show that the Indian Penal Code 'intended to deal
with a different and more limited class of attempts in S. 5ll'.49 It appears that the
courts in India have been labouring under a confusion with respect to the exact
scope of S. 511 Indian Penal Code, that is, whether or not S. 511, Indian Penal
Code, is wide enough to include all kinds of attempts punishable under the Code,
including attempts to murder, specifically provided in S. 307, Indian Penal Code or
whether these sections are exclusive of each other. There are, however, conflicting
and diverse opinions of different High Courts on this point. (i) According to the
Allahabad High Court, S. 511 does not apply to attempts to commit murder which
are fully and exclusively provided for by S. 307.

47
Satvir Singh v. State of Punjab,{20Q\) 8 SCC 633 at 640
48
Huda, The Principles of Law of Crimes in British India p. 50. But according to Ratanlal The Law of Crimes (19th
Ed.) p. 1332, these are the vital words.
49
Huda, id. at 50 (T.L.L.) See also Raju, The Penal Code (1st Ed.) p. 1439.

12
(ii) The Bombay High Court has, however, held otherwise in a case71 which has
been doubted in a later case. The former chief court of Punjab had laid down that
S. 511 was in terms much wider than S. 307.

(iii) Raju is of the view that S. 307 is exhaustive and not narrower than S. 511, so
far as attempts to commit murder are concerned. But S. 511 applies to attempt to
commit offences and also to attempt to cause an offence to be committed. Mayne's
view is that cases not covered by S. 307 will be covered by S. 511 as held in
Cassidy's case.

Shri K.L. Ratan76 and Dr. Hari Singh Gour are of the view that there is clear
distinction between S. 307 and S. 511 of the Indian Penal Code. The attempt to
commit murder under S. 307, IPC, was distinguished from intent to commit it or
preparation for its commission by the apex court in Sagayam v. State of Karnataka.
The court held that to justify conviction under S. 307 IPC, it is not essential that
bodily injury capable of causing death should have been inflicted. An attempt in
order to be criminal need not be the penultimate act forboding death. It is
sufficient in law if there is present an intent coupled with some overt act in
execution thereof, such act being proximate to the crime interned and if the attempt
has gone so far that it would have been complete but for the extraneous
intervention which frustrated its consummation. An attempt to commit crime must
be distinguished from intent to commit it or preparation of its commission.

The Supreme Court in State of Marahashtra v. Balram Bama Patil,50 had

occasion to consider a case involving assault of a group belonging to one political
party by a group belonging to another party at the time of elections. The Bombay
High Court had acquitted a few of the accused of an offence under S. 307, IPC, on
the ground that the accused had only caused simple injuries. The Supreme Court

50
AIR 1983 SC 305

13
differed on this aspect and held:51 It is not necessary that the injury actually caused
to the victim of the assault should be sufficient under ordinary circumstances to
cause the death of the person assaulted. What the court has to see is whether the
acts, irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in the section. An attempt in order to be criminal need
not be the penultimate act. It is sufficient in law if there is present an intent coupled
with some overt act in execution thereof. While confronted with a case under S.
304-B, the court observed that the very policy underlying S. 511 seems to be for
providing it as a residuary provision. The corollary, therefore, is that once an act is
expressly made punishable by the Code it stands lifted out of the purview of S.
511.52

51
Id. at 307, para 9
52
Supra note 68 .

14
 CHAPTER – 4

Another difficult area in the law relating to criminal attempts is that of impossible
attempts. It is true that the criminality of an attempt lies in intention, the mens rea,
but this mens rea must be evidenced by what the accused has actually done
towards the attainment of his ultimate objective.53 Thus the actus reus of attempt is
reached in such act of performance as first gives prima facie evidence of the mens
rea.54 But the difficulty arises when the actus reus of attempt ultimately does not
yield any harm owing to the absence of circumstances or owing to the
impossibility of the means chosen. Under English law, the view which formerly
prevailed was that a person cannot be held liable for an attempt to do the
impossible.55 However, this line of decisions was overruled in R. v. Brown and
finally in R. v. Rin wherein it was laid down that impossibility of performance
does not per Se render the attempt guiltless. Under S. 511 of Indian Penal Code
also "an attempt is .... possible, even when the offence attempted cannot be
committed ... It is possible to attempt to commit an impossible theft, and so offend
against the code."56 However, the courts have also held that impossible attempts
cannot be punished. The rule underlying the impossible attempts is inconsistent
with the elements of liability in criminal law. In fact the liability is fastened on the
intention, which becomes fully manifest in such cases. But if such attempts are not
brought within the purview of criminal law it will be difficult to discourage their
harmful tendencies. But there has been great controversy about the circumstances
in which impossibility will afford a defence and those in which it will not. Great
practical difficulty and much academic debate was caused by the decision of the

53
Supra note 6 (Turner 17th Ed. 92).
54
See Archbold's Pleadings 33rd Edn. 1954, 1489
55
In Collins (1864) 168 E.R. 1477, attempt to steal from empty pocket was not held to be an attempt; other cases are
R. v. M'Pherson, (1857), 7 Cox 281; R. v. Dodd, (1868), 18 L.T. (N.S.) 89.
56
Per Birdwood J in Q.E. v. Mangesb Jivaji , (1887) 11 Bom. 376, 381

15
Court of Appeal in Husseyn.57 Where the crime is impossible in the sense that the
intended result is not a crime at all but because of his ignorance or mistake of
criminal law, believes that it is. But in this condition crime is not committed. In
Taafe a person imported into UK certain packages which he believed to contain
foreign currency. He thought it was a crime to import foreign currency. But it was
not. He could not, on those facts, committed any offence or an attempt to commit
any offence. The intention to import foreign currency, believing it to be a crime,
though morally reprehensible, did not constitute the mens rea of any crime. The
impossibility test is applied in the case of legal and factual impossibility. A legal
impossibility is where the law, in spite of perpetrator's having done all that is
necessary to break the law, does not prohibit what he did. In other cases where the
completion of the crime is prevented by some extraneous factor the attempt is
called factual impossibility. Now in both cases attempt is made punishable. To
highlight this point reference may be made to R v Shivpuri . In this case, a person
was offered £1000, if on his return to UK he would receive a suitcase delivered to
him and distribute the drug packets contained therein. When after receiving the
said suitcase, the appellant was about to deliver drug packets, he was arrested. He
gave the Custom Officers a written statement confessing to having played his part
as recipient to a distributor of illegally imported drugs which he believed to be
heroin or cannabis. On analysis the substance was found to be snuff or similar
harmless vegetable matter. Subsequently in evidence he denied making any
admission or confession about drugs. He was tried on counts of attempting to be
knowingly concerned in dealing with and harbouring the controlled drug, namely
heroin the import of which was prohibited and thereafter found guilty. The
justification for the conviction given by the Court of Appeal was that the act was
more than preparatory to the commission of the actual offence. The facts were such
that the commission of the actual offence was impossible. By so ruling, the House
of Lords overruled an earlier decision, Anderton v. Ryan in which the House of
Lords acquitted a person charged with the attempt to handle stolen goods despite
her intention to commit the offence which was the necessary ingredient of attempt
under the Criminal Attempts Act, 1981. In fact under this Act what the court was
to look for was the intention while moving towards completion of crime
irrespective of the fact whether the intended crime was possible or impossible.

57
(1977) 67 Cr App Rep 13 in, [1978] Crim LR 219 and commentary

16
Overruling Anderton's case which ran counter to S. 1 of the Criminal Attempts
Act, 1981, the House of Lords found Shivpuri guilty of attempt as he thought it to
be crime though in fact it did not amount to crime. The attempt in IPC is based on
this same principle. It can thus, be definitely stated that the impossibility of a thing
will not absolve the criminal liability of the person committing the act. This
becomes evident from the illustration given under S. 511 of IPC which speaks of
the attempt to steal in the event of a person putting his hand in the empty pocket of
another, though theft of money from an empty pocket is impossible the person
trying the pocket of another commits the offence of attempt to commit theft. The
theoretical formation for imposing responsibility for attempt is provided for by
Prof. Glaniville Williams thus: The actus reus of attempt is of a most peculiar
kind. Most crimes specify their actus reus directly, they tell us what it is that we
must do or not to do. Criminal attempt is different; it specifies the actus reus
chiefly by reference to the crime attempted. It tells us that we must not seek to
trace a certain distance towards the commission of the actus reus of some other
crime. If the defendant is under some serious mistake, no part of what he does may
be the actus reus of another crime. So it may seem plausible to say that his
criminality exists only in his own mind. However, this conclusion, overlooks the
special features of criminal attempt. In an attempt, by hypothesis, the full crime has
not been committed, or need not be proved to have been committed. So, by
hypothesis, there need be no full actus reus of the complete crime. The actus reus is
that of the attempt, it is forbidden by reason of the law of attempt, and not by
reason of any other penal law. The problem of impossible attempts however
appears to defy solution and a close examination of the whole matter is, therefore,
called for. The Law Commission of India, proposed deletion of S. 511 and
insertion of a new Chapter VB entitled 'Of Attempt' consisting of the two Ss. 120C
and 120D after Chapter VA dealing with 'Criminal Conspiracy' with a view to
group inchoate crimes together. The proposed S. 120C gives a comprehensive
definition of attempt as shown below. 120C. Attempt. - A person attempts to
commit an offence punishable by this Code, when - (a) he, with the intention or
knowledge requisite for committing it does any act towards its commission; (b) the
act so done is closely connected with, and proximate to, the commission of the
offence; and (c) the act fails in its object because of facts not known to him or
because of circumstances beyond his control. 120 D . Punishment for attempt. –
Whoever is guilty of an attempt to commit an offence punishable by this Code
17
with imprisonment for life, or with imprisonment for a specified term, shall, where
no express provision is made by this Cod e for the punishment of such attempt, be
punished with imprisonment of any description provided for the offence, for a term
which may extend to one-half of the imprisonment for life, or as the case may be,
one-half which may extend to one-half of the imprisonment for life, or, as the case
may be, one-half of the longest term of imprisonment provided for that offence, or
with such fine as is provided for the offence, or with both. This proposal also
incorporates the proximity criterion. Perhaps it would add clarity if sub-clause
(b)is deleted and the rest retained as the definition. Whether the act is proximate
or not may be question of fact that could be decided by the courts. The Supreme
Court of India has also dealt with these aspects while determining the scope of Ss.
511 and 307 Indian Penal Code. Revision of our law on the lines of Criminal
Attempt Act, 1981 ma y help our courts resolve the conflicts and strengthen the
law of criminal attempts.

18
 CRIMINAL ATTEMPT IN UK
CRIMINAL ATTEMPTS ACT 1981
Criminal Attempts Act 1981 is an Act of the Parliament of the United
Kingdom. It applies to England and Wales and creates criminal offences pertaining
to attempting to commit crimes. It abolished the common law offence of attempt.

PROVISIONS OF THE ACT

Attempting to commit an offence
Section 1(1) of the Act creates the offence of attempt:
(1) If, with intent to commit an offence to which this section applies, a person does
an act which is more than merely preparatory to the commission of the offence, he
is guilty of attempting to commit the offence.
Section 1 applies to any indictable offence triable in England and Wales,
except conspiracy , Offences under sections 4 and 5 of the criminal law act 1967
. (which deal with assisting offenders and concealing information about crimes.
Section 1(2) reads:
(2) A person may be guilty of attempting to commit an offence to which this
section applies even though the facts are such that the commission of the offence is
impossible.
Section 1(3) states that a person is to be judged according to what the defendant
thought the facts of the case were at the time of the attempt, rather than what the
facts really were, in the event that the defendant was mistaken about what was
happening.

19
Section 2 states that rules regarding time limits for prosecuting, powers of arrest
and search, and so on, are the same for offences of attempting to commit an
offence as they are for the offence attempted.
Section 3 provides that where another Act creates an offence of attempting to
commit an offence under that Act, similar rules apply to that offence as the rules in
section 1 (unless the other Act specifically says otherwise).
Section 4 generally sets the penalties for attempting to commit an offence as the
same as the offence attempted. The only exception today is murder. which carries
a mandatory sentence of life imprisonment whereas section 4 makes the sentence
for attempted murder discretionary (up to a maximum of life imprisonment).
. Historically, offences under the Sexual Offences Act 1956 (repealed in 2004)
were exempt from section 4, and attempts to commit sexual offences sometimes
carried lower sentences than the completed offence. For example, rape was
punishable with life imprisonment, but attempted rape carried a maximum of 7
years, until the 1956 Act was amended by the Sexual Offences Act 1985.

Other offences
The Act abolished the offence of "loitering with intent" under the Vagrancy Act
1824.
Section 9 creates a summary offence called "vehicle interference." This is
committed by interfering with a motor vehicle or trailer, or anything in the vehicle
or trailer, with intent to steal it or anything in it. It carries a maximum sentence of 3
months.

20
Attempts under the Criminal Attempts Act 1981
The matter in this essay is mainly concerned with the extent, if there is any, the
Criminal Attempts Act 1981 has explain and simplify the range of activity-
application and operation of the law of attempts in English criminal law. The
purpose of the essay though, is to explain if the ‘1981 Act’ has cause more
confusion or has make the law clear.
The issue of the application and operation of the law of attempts will be considered
in three stages. The first stage will analyse the requirements for an attempt to be
established under the common law. The second stage will analyse the introduction
of the new legislation operating attempts under the current law, and finally the
third stage will consider whether there are any problems in this area of the criminal
law together with criticisms of the law and possible changes.

COMMON LAW
"Until 1981 the common law flirted with various issues. One of these was the
‘equivocality test’ under which a defendant had to take sufficient steps towards the
crime for his actions clearly and unequivocally to indicate that his purpose was to
commit the crime."58 This was clearly in accordance with the ‘second order harm’
view and the objectivism theory. "If the defendant’s acts showed beyond
reasonable doubt the criminal end towards which they were directed then it could
be said to be an attempt".59
Rubicon test used in common law is the test, which "a person is not adjudged to be
beginning his attempt until he has ‘burnt his boats’ such that he cannot turn back.
Although this test is looser than the last act test, it nevertheless makes it difficult

58
Gary Scanlan and Christopher Ryan , An introduction to criminal law , 1 st edition , Financial Training
Publications Ltd ,1985, p.136.
59
ibid p .136.

21
for the law enforcement agencies to intervene when the defendant is on the ‘job’
but is not yet in a position to execute his plan, for example, because the intended
victim has not arrived at the time the arrest is made, or he has not entered the
building w. here the offence is to take place"60.
The test finally adopted by the common law established in Eagleton61 was the
proximity test. "The defendant’s actions had to be proximate to the completed
offence in the sense of being ‘immediately and not merely remotely, connected’
with the completed offence"62.
As Scanlan63 suggests, one of the difficulties associated with the old law on
criminal attempts was the question of how far the defendant would have to
progress towards the commission of the completed crime to be said that he had
committed the actus reus of attempt.

CRIMINAL ATTEMPTS ACT 1981

Today in England and Wales attempts are no longer governed by the common law
but by the Criminal Attempts Act 1981 but, as at common law, the dividing line is
to drawn between acts of preparation and acts of perpetration (being steps which
are more than merely preparatory and therefore attempts which a person may be
liable).
Initially the House of Lords were reluctant to interpret these acts of preparation and
acts of perpetration in manner that would produce the result intended by
Parliament. In Anderton v Ryan64, "the defendant had bought a video recorder for
£110, but later confessed to the police that she believed it to have been stolen
property when she bought it. The defendant was charged, inter alia, with
attempting to handle stolen goods, although the prosecution was unable to prove
that the video recorder had in fact been stolen property. The House of Lords
quashed the defendant’s conviction on the ground that she could not be guilty of
attempting to handle stolen goods unless such property was shown to have existed.
A majority of their Lordships refused to accept that the defendant’s belief that
goods were stolen was sufficient of itself to result in liability. Such a result may
have been the aim of the 1981 Act but their Lordships felt that Parliament would
60
William Wilson, Criminal Law, doctrine and theory , 1st edition, Longman 1998, p.540.
61
(1855) 19 JP,CCR
62
op cit 3 p.540
63
op cit 1 p.141
64
(1985) AC 560, HL

22
have to express its intentions more clearly before the courts would be willing to
impose liability solely on the basis of what the defendant had thought she was
doing, as opposed to what she was actually doing"65.
The effect of this decision was shorted-lived, however. Given the facts of R v
Shivpuri, "the House of Lords had little choice but to overrule its own previous
decision in Anderton v Ryan. Shivpuri, whilst in India, was paid £1000 to act as a
drug-carrier. He was required to collect package containing a consignment of drugs
which would be delivered to him in England, and distribute its contents according
to instructions which would be given to him. On collecting the package, the
defendant was arrested by police officers, and he confessed to them that he
believed its contents to be either heroin or cannabis. Further analysis revealed the
contents of the package not to be drugs. The defendant’s appeal to the House of
Lords against his conviction to be knowingly concerned in dealing with and
harbouring a controlled drug was dismissed. It was held that s.1 of the Act was to
be interpreted as requiring the defendant to be judged on the facts as he believed
them to be. On this basis the defendant had taken that he believed to be more than
merely preparatory in dealing with a controlled drug"66
The decision effectively overrules Haughton v Smith and gives effect to s.1 of the
1981 Act in the manner intended by Parliament. Section 1 of the Criminal
Attempts Act 1981 says: "if, with intent to commit an offence to which this section
applies, a person does an act which is more than merely preparatory to the
commission of the offence, he is guilty of attempting to commit the offence"67.
Nevertheless, a number of interesting possibilities opens up, such as the defendant
who commits attempted unlawful intercourse with a girl aged 17, believing her to
be only 14.
In the Haughton v Smith case "a lorry-load of stolen meat travelling from
Liverpool to London was repossessed by the police, and thereby ceased to be
stolen property for the purposes of handling stolen goods under s.22 of the Theft
Act 1968. The lorry was allowed to continue south, where it was met by the
defendants who had intended to unload the meat. The defendants were charged
with attempting to handle stolen goods, but the House of Lords held that the
defendants could not be guilty of attempting to commit the crime which, in the
circumstances, was impossible to carry out"68

65
Card, Cross and Jones, Criminal Law, 14th edition, Butterworths 1998, p.568
66
ibid p.568
67
P.R Glaze brook, Statutes on Criminal Law, 12th edition, Black stones 2000.
68
Michael J Allen, Elliot & Wood’s cases and materials on Criminal Law, 8 th edition, Sweet & Maxwell 2000,
p.499.

23
Before the 1981 Act there were differences on whether there was on these facts an
attempt to handle, but now the answer should be clear.
"All legal systems seem to agree that impossible attempts are punishable if the
behaviour itself produces apprehension or generates apprehension in the mind of
an ideal observer. For example, if someone shoots into the bed where her intended
victim usually sleeps, the courts readily impose liability for attempted murder. It
also follows that pulling the trigger on an adventitiously unloaded gun with the
intent to kill should be a proper basis for liability."
"As Professor Hart points out, the notion of attempt, unlike the notion of killing or
stealing does not always require that the object in question should exist; it need
require only that the offender believed that it did or might exist"69
"The target of controversy in the theory of attempts is not these cases of manifest
danger but rather the range of cases where the action itself is totally innocent on its
face. These are the cases typified by purchasing talcum powder (thinking that it is
heroin), putting sugar in an enemy’s coffee (thinking that it is cyanide), or
administering a harmless substance to a pregnant (thinking that it is an
abortifacient). If these innocuous actions are criminal, it is only because the actor
entertains certain thoughts: he wants to engage in an action that would clearly be
criminal, if the facts were, as he believed them to be".

CONCLUSION
"The principal provisions of the Criminal Attempts Act 1981, which it is suggested
that it has make the law clear from the common law, are:
(a) the definition of the mens rea"70, clearly means that the prosecution must prove
that the accused intended the result, defined in the actus reus of the full offence (s.1
(1) of the Act).
(b) "The establishment of a new test of the actus reus" which is defined in s.1 of
the 1981 Act as doing ‘an act which is more than merely preparatory to the
commission of the offence’. "It need not be a dangerous act. It is the mens rea,
which converts the act into a crime. I may be driving my car towards to you. Only
if the jurors know that I intent to run you down, can they convict of an offence. By
s. 4(3) of the Act, the question whether the accused committed an attempt is for the
jury, provided that there is sufficient evidence in law to support that finding: that
is, the judge can rule that the act may but it is for the jury to determine that it was
69
G. Williams, ‘The Lords..., or quis sust odiet ip sos cu stodes’ (1986) 45 CLJ 33 at p.35.
70
Michael Jefferson, criminal law, 4th edition, Financial Times Pitman Publishing 1999, p.352

24
so. The judge cannot instruct the jury that a situation amounts to a ‘more than
merely preparatory act’. However, he/she may tell the jury that there is no evidence
what the accused has done that amounts to a more than merely preparatory act, and
the issue can be withdrawn from the jury as it happens in Campbell [1991] Crim.
L. R 268. On the facts the accused was not guilty of attempted robbery even
though he had reconnoitered a sub post office he had intended to rob and he had
an imitation gun and a threatening note. He was arrested near to the office door. He
said he was going back to his motorcycle, having decided not rob. Presumably he
would not on this approach have been guilty until he had crossed the threshold of
the sub post office"71.
As Simister suggests that’s not a helpful decision in the prevention of crime. If
the facts had been left to the jury a conviction may well have been secured, and
presumably he could have been convicted of a different attempted crime, attempted
burglary for he had performed a more than merely preparatory action his way
towards entering the building as a trespasser with intent to steal. The Court of
Appeal said those cases had to be decided case-by-case approach, which is not a
help to the juries".
(c) "The abolition of the defence of impossibility, reversing Haughton v Smith".
"Haughton v Smith and DPP v Smith were taken to laid down a rule that a person
was not guilty of attempt or conspiracy respectively where the facts were such that
it was impossible to commit the full offence. For instance, if the accused put his
hand into a pocket, having made up his mind to steal, he was not guilty of
attempted theft if there was nothing in the pocket. Though this statement of law,
which has been simplified for present purposes, had its defenders, most
commentators thought it ridiculous, and the Law Commission and Parliament
agreed. After, all the accused had demonstrated an intent to break the law. The law
is now stated in the s.1 (2) of the Criminal Attempts Act 1981: ... a person may be
guilty of attempting of committing an offence to which this section applies even
though the facts are such that the commission of the offence is impossible"
(d) "The abolition of ‘sus’ (suspected loitering with intent to commit an arrestable
offence) and the creation of an offence of interference with vehicles".
"Section 9 of the Criminal Attempts Act 1981 repealed s. 4 of the Vagrancy Act
1824, as amended, which contained the offence which came to be known as ‘sus’.
This crime had acquired a bad reputation because it was alleged that the police had
used it selectively. In place of ‘sus’ there was instituted the crime of interference
with vehicles in s.9 of the 1981 Act. Besides being narrower and more acceptable
71
Simister A.P and Sullivan GR, Criminal Law, theory and doctrine, Hurt Publications 2000, p.294

25
than ‘sus’, it got rid of a troublesome difficulty in the law. If a person was seen
tampering with a car door, with which offence was he charged? Attempted of the
car contrary to s.1 of the Theft Act 1968 would fail if he pleaded that he was going
to joy-ride under s.12 of that Act; what about if the accused contend that he wanted
to steal the contents, not the car itself . Section 9 remedies the difficulty: (1) a
person is guilty of the offence of vehicles interference if he interferes with a motor
vehicle or trailer or with anything carried in or on the motor vehicle or trailer with
the intention that any offence specified in ss (2) below shall be committed by
himself or some other person. The offences mentioned in subsection 1 above are:
(a) theft of the motor vehicle or trailer or part of it. (b) theft of anything carried in
or on the motor vehicle or trailer, and, (c) an offence under s.12 of the Theft Act
1968 (taking and driving away without consent); and, if it is shown that a person
accused of an offence under this section intended that one of these offences should
be committed, it is immaterial that it cannot be shown which it was".
From the above it is apparently that the law of attempts in English criminal law has
been slightly changed for the good of every civilian in this country, although the
present Act has not reach the perfect level.
The Criminal Attempts Act is the law but s. 1(1) of the Act does not really help the
judge and the lawyer to say exactly where the line between acts of mere
preparation and punishable perpetration is to be drawn in any given case. For
example Tony was tried of attempted burglary of a house when he was caught by
the owner trying to enter the premises by illegal means (truing to insert a tool into
the door lock). Bearing in mind the s.1 (1) of the Criminal Attempts Act 1981 at
what point has Tony in the imaginary case above taken the step, which is more
than merely preparatory? When he buys the housebreaking tools? When he
photographs the house? When he arrives in the street where the house is situated?
When he enters Alex’s property? When he takes his tool from his pockets? Or,
when he inserts a tool into the door lock? Where is the line to be drawn72?
Generally, what it in fact achieved was a wholesale replacement of the common
law with a new statutory offence of attempt.
The limited approach taken from the s.1 of the Criminal Attempts Act 1981 to the
meaning of more than ‘merely preparatory’ has unfortunate implications for efforts
at crime prevention and protecting the public. The police can still lawfully arrest
anyone behaving as the defendant did in Campbell, for example, on the basis that
they have reasonable grounds for believing, that she/he is about to commit an
offence (arrestable), but it appears in order to secure a conviction for attempt in
72
Gary Scanlan and Christopher Ryan, An intro to criminal law, 1st edition, Financial Training Publications Ltd
1985, p.134

26
such circumstances, they would have to hold back until that person has actually
entered the post office and approached the counter before arresting him/her.
Clearly this may mean putting post office and other staff, the general public and
police officers, at unnecessary risk73.
DEFINING MENS REA IN CRIMINAL ATTEMPTS

It is just as important to punish those who embark upon acts that, if successful,
would lead to the commission of an offence and potential harm, as it is to punish
those who actually succeed. This is the purpose and justification for the availability
of inchoate liability. The question however, is the ambit of such liability, an issue
which both the Court of Appeal and Law Commission have recently considered in
relation to criminal attempts.
Criminal Attempts Act 1981
Attempted criminal liability is governed by the Criminal Attempts Act 1981, which
was based on the recommendations of the Law Commission Report (1980 No 102)
and to address in part the House of Lords decision in Haughton v. Smith [1975] AC
476. Section 1(1A) provides that to be guilty of attempt, the offender must “with
intent” do “an act which is more than merely preparatory” to committing the
intended offence, even if this (s.1(2)) becomes impossible.
Section 1(4) limits the application of attempts to offences that can only be tried “as
an indictable offence” thereby excluding summary only offences.

Nevertheless, in R. v. Nelson [2013] EWCA Crim 30, the Court of Appeal ruled
that whilst common assault which includes battery (see Lynsey [1995] 2 Cr App R
667) are summary offences (s.39 CJA 1988). If s.40 of the Criminal Justice Act
1988 applies (linked summary to indictable offence), then attempted battery
becomes an offence that is triable as an indictable offence, (in the instance case,
s.47 assault).
Other restrictions include that in law it is not an offence to attempt to either
conspire or be an accessory and since the February 1, 2010 (s.177 of the Coroners
& Justice Act 2009), to attempt to encourage or assist a suicide (s.2(1) of the
Suicide Act 1961 (see R. v. S [2005] EWCA Crim 819). The reason for these
restrictions is that to criminalize such attempts would unjustly extend the
boundaries of liability to conduct that precedes secondary liability and would make
the criminal law speculative and uncertain.

73
Elliot Catherine and Frances Quinn, criminal law, 2nd edition, Longman 1998, p.172

27
A Specific Intent Crime and Attempted Criminal Property Offences
Section 1(1) is clear unless, and only if, a specific intent to commit an offence is
proved, can a conviction be secured. A reckless state of mind is not sufficient
(see Millard [1987] Crim LR 393). Nevertheless, this must then be read in
conjunction with s.1(3) which extends the meaning of intent to include a situation
where if the offender believed certain facts existed, then his intention will be
construed accordingly. However, the legal position between an attempt and a
complete crime capable of being committed with a different and lesser culpable
mind, is less clear and was addressed recently by the Court of Appeal in R. v. Pace
& Rogers[2014] EWCA Cri 186, in relation to attempted criminal property
offences contained in s.327 to 340 of the Proceeds of Crime Act 2002 (permitted
by s.340(11)(b)). Whilst the actus reus is different to each of the three all-
embracing offences, the mens reaconsisting of “knows or suspects” that illicit
criminal property is involved (ie, stolen goods), remains the same(s.340(3b)).
However, these offences undoubtedly overlap with the offence of handling stolen
goods in s.22 of the Theft Act 1968, but given the mens rea for handling is “knows
or believes”, this has tempted the prosecution to charging a criminal property
offence instead of handling when there are obvious evidential difficulties in
establishing a believing mind as opposed to a lesser suspicious mind.
Given the rise in the value of raw materials, the scrap metal industry is a lucrative
outlet for stolen goods. A problem fully recognized by Parliament (Scrap Metal
Dealers Act 2013) and the police, with dedicated investigation teams and a
countrywide crackdown. One such operation by the Thames Valley Police using
covert surveillance lead to the appellants in Pace and Rogersbeing convicted of
attempting to conceal, disguise or convert suspected criminal property (a s.327
offence, by agreeing and processing the goods), namely purportedly stolen power
cable and lead flashing sold to them by undercover officers.
Both appealed against their convictions on the basis that the Judge had misdirected
the jury that suspicion was a sufficient mens rea in attempting to commit the
offence. In quashing the convictions, the Court of Appeal in the judgment of
Davies LJ ruled “that as a matter of ordinary language”, the expression “with intent
to commit an offence” contained in s.1(1) “connotes an intent to commit all the
elements of the offence and that there is “no sufficient bases, whether linguistic or
purposive, for construing otherwise.” As with attempted murder, so too with
attempting to convert criminal property, the offender must have a specific intent,
regardless of whether a lesser mental element proves the substantive offence.

28
Accordingly, the prosecution must, as required by s.1(1), prove that the offender
had the necessary intent to deal with illegal property, Whilst this can include a
belief under s.1(3), suspicion is only relevant to proving the substantive offence,
not that of attempting it. The Court of Appeal by analogy found support alongside
statutory conspiracy and the decision in Saik [2007] 1 AC 18, and that whilst the
decision in R. v. Khan [1990] 91 Cr App R 29, for attempted rape was arguably
different, the statutory position cannot be altered whatever conflict arises with the
substantive offence.
Likewise, unless the prosecution can prove that the property in question is actually
proceeds of a crime (s.340(3)(a) amounts to a benefit derived from criminal
conduct), then no substantive offence can be committed (see R. v. Montilla [2004]
1 WLR 3141).Whilst it is possible to attempt the impossible, if the property (as in
the instance case) is not in fact stolen, then unless there is clear evidence of an
intent to commit the offence with at least a belief that it is criminal property, then
there is no attempt. As the court put it in Millard [1987] Crim LR 393, there is
nothing illogical within the context of some offences, for it to be “easier to prove
the substantive offence than the attempt”.
Whilst this may impact on those cases that are still pending and future
prosecutions, the Court of Appeal rightly acknowledged the availability of other
offences such as attempted handling stolen goods, (a more appropriate charge in
the author’s view), and whilst this is more burdensome in terms of proving a belief,
evidence of turning a blind eye to the true status of the goods (see R. v.
Forsyth [1997] 2 Cr App R 299), goes some way to inferring such a belief.

Attempted Murder and GBH with Intent

Similar difficulties arise with the distinction between murder, attempted murder
and GBH with intent. A conviction for murder is capable on a lesser intent to cause
GBH, than it is for attempting it which requires an ulterior intent to kill (see R. v.
Whybrow 35 Cr App R 141). The justification for such a rule was authoritatively
confirmed in R. v. Cunningham [1982] AC 566 on grounds of public policy and
that a defendant should not be permitted to escape a conviction for murder if the
evidence shows that death occurred as a direct result of their assault intended to
result in GBH. But if no death occurs and the offender intended to do really serious
harm, then this amounts to a s.18 offence, not attempted murder. In the strict sense
this is potentially illogical but is justified both in terms of policy and practice.
Similarly, in R. v. Grant [2014] EWCA Crim 143, the Court of Appeal ruled that
the formation of intent to kill for attempted murder also encapsulates an intention
to do really serious injury. The two intents are not in law or policy as the appellant

29
had contended “mutually exclusive” or inconsistent with each other and therefore
he and two secondary offenders had rightly been convicted of, firstly attempted
murder of the intended victim, and secondly, s.18 GBH to two other victims who
he had not intended to kill but who he had wounded when he missed his intended
target.
Section 18 is widely drafted and encompasses GBH “to any person” and thus the
two unintended victims of an intended killing were properly indicted as separate
free standing counts. Although not cited to the Court, support can be found in R. v.
Morrison[2003] EWCA Crim 1722, in which Lord Woolf had stated “that there
can be no intention to kill someone without the intention also to cause GBH” and
therefore a count of attempted murder can include an allegation of attempted GBH
with intent.
Likewise, in R. v. Kerr [2011] NCIA 20, in which the Court of Appeal of NI ruled
that the appellant’s conviction for three attempted murders was not inconsistent
with his conviction for attempted arson of a wheelie bin placed against the
complainant’s property. It was not bad for duplicity for the prosecution to include a
related arson charge as a separate count, rather than a lesser alternative in order to
properly reflect the appellant’s overall offending behaviour.

Attempted Rape and Intentional Penetration

The Sexual Offences Act 2003 significantly reformed the offence of rape in s.1
with a new offence of assault by penetration in s.2 and finally sexual assault in s.3.
All three offences are closely linked evidentially and clearly overlap. To be
convicted of rape the prosecution must prove intentional penile penetration, a lack
of consent on the part of the complainant and that the defendant did not reasonably
believe she was consenting. For sexual assault, there must be evidence of sexual
touching which can include penetration (s.79(8) SOA 2003). Accordingly, before
the final act of rape, a sexual assault may first take place, but if the act of penile
penetration does not take place, does this amount to an attempted rape or a sexual
assault?
At first glance the mens rea for rape of unreasonable belief is a lesser state of
mind, than that which would be required for attempted rape of intent under s.1 of
the Criminal Attempts Act 1981. However, the Court of Appeal in R. v.
Khan [1990] All ER 783, resolved this potential problem by distinguishing the
offence result with that of the circumstances in which it is committed.
Accordingly, it must be proved that the defendant intended the result of penile
penetration albeit unsuccessful, and in such circumstances that the complainant
was not consenting and he had no belief that she was. Further support is found

30
in Attorney-Gen Ref (No 3 of 1992) [1994] 2 All ER 121, in which Lord Taylor
stated obiter that the decision in Khan “accords with common sense and does no
violence to the words of the statute”.

In terms of mens rea no difficulties in fact arise between actual rape and attempted
rape, since the need for intentional penetration applies to both offences, the only
real different is the issue of actual penetration. A point highlighted by the Court of
Appeal in Pace & Rogers when distinguishing the Khan decision on the bases that
although the appellants were unsuccessful, the fact that no criminal property could
exist in law (as it was not stolen), meant no offence existed.
Whilst a jury is entitled to draw relevant inferences from the surrounding facts
(see R. v. Jabber [2006] EWCA Crim 2694), to convict of attempted rape, there
must be sufficient evidence to enable a jury to be sure of some further fact that
proves the offence. Whilst this is a question of fact for the jury, each case will need
to be carefully managed by the trial judge to ensure there is a case to answer.
To provide some guidance, the Court of Appeal in Attorney- General’s Ref (No 1
of 1992) 96 Cr App R 298, ruled that to prove intent does not require the
prosecution to adduce evidence of almost physical penetration, but the intentional
inference can be drawn from the wider surrounding facts, in order to distinguish
from what might be a violent robbery, theft, assault or harassment Auld LJ adopted
the same reasoning in R. v. Patnaik [1999], when his Lordship observed that if
there was sufficient evidence to enable a jury to infer the necessary intent and
preparatory act, then whether or not this amounts to attempted rape should be a
matter for them. What is clear is that the sufficiency test does not necessitate proof
that the defendant had started to remove his or the victim’s clothing or commit
sexual assault (in this case the defendant had grabbed the complainant late at night,
pinned her to the floor and stated “if you keep quiet, I won’t rape you”).

In contrast, however, the Court of Appeal in quashing the appellant’s rape

conviction and substituting this for sexual assault, held in R. v. Ferriter [2012]
EWCA Crim 2211, that whilst there was “ample material” (the appellant had
confronted a female barmaid, both landed on the floor, he tried to remove her
trousers, she managed to escape, the appellant then stole alcohol and money), of a
sexual intention as opposed to a robbery, this was not “capable of justifying the
conclusion which pointed to an intent to commit rape” rather than some other
sexual act (see also R. v. Beaney [2010] EWCA Crim 2551) .

31
Attempted Criminal Damage: A Basic Intent Crime?
Basic criminal damage in s.1(1) of the Criminal Damage Act 1971, is a
straightforward offence containing two differing culpable states of mind of either
intentionally (purposely) or recklessly (foresees) damaging property. This ensures
that the offence is widely applied to capture all acts of unlawful vandalism. In
contrast to rape however, according to the Court of Appeal in R. v. Millard [1986]
Crim LR 393 to attempt to commit criminal damage is stricter and requires
statutory proof of a specific intent. The lessor form of reckless damage cannot be
implied or expressly included into attempting it with intent. To rule otherwise
would be contrary to the plain wording of the 1981 Act that limits liability to those
only intending to fulfil their criminal aim.
However, in relation to the aggravated form of criminal damage, the issue of
attempts is less straightforward. In Attorney-Gen Ref (No 3 of 1992) [1994] 2 All
ER 121, the defendants had thrown a petrol bomb at occupants in car, but missed
and exploded against a wall. On the basis that there was no actual damage, they
were charged with attempted aggravated criminal damage (s.1(2) offence). The
Court of Appeal in the judgment of Lord Taylor applying the decision in Khan
ruled that the trial Judge was wrong to rule that there must be a direct intent to
endanger life.
What is necessary, is that it is proved that the defendant intended to damage
property (in this case the car), and that the consequences of that intended but
unsuccessful damage was such that the defendant had recklessly endangered the
life of another, will suffice. The court determined that “there is no need for a
graver mental state than is required for the full offence”. To rule otherwise would
potentially make it impossible to prove the aggravated element in such situations
(throwing a petrol bomb) the offender would only be liable for attempted basic
criminal damage, an outcome that is logically inconceivable.

Conclusion

There are bound to be conceptual difficulties, especially when the primary offence
32
embraces different states of mind and its commission includes both result and
circumstance outcomes. Nevertheless, none of this can alter the plain meaning of
intent in the imposition of attempted criminal liability.

CRIMINAL ATTEMPT IN US

Introduction
For good reason, attempts to commit crimes are themselves crimes in every
mature legal system. A bungled robbery, a missed shot, a beating that fails to kill
despite the perpetrator’s best effort, a would-be rape fought off by the intended
victim, a smuggling stopped at the border, and many more failed efforts besides
possess the marks of wrongful conduct to which the state should respond with
criminal penalties. And yet courts and commentators have consistently failed to
explicitly offer a coherent theory of this fundamental area of criminal law. Struck
by the difficulty of discovering—and the darkness surrounding—principled
solutions to adjudicatory problems about attempts, Jerome Hall wrote in 1940:
Whoever has speculated on criminal attempt will agree that the problem is as
fascinating as it is intricate. At every least step it intrigues and cajoles; like la belle
dame sans merci, when solution seems just within reach, it eludes the zealous
pursuer, leaving him to despair ever of enjoying the sweet fruit of
discovery.74Despair no longer. This Article offers a framework for thinking about
attempts that solves important problems of adjudication—problems to which we
currently lack principled solutions despite the great frequency with which
defendants charged with criminal attempts appear in courtrooms. The simple
intuitive appeal of the idea that attempts are to be punished belies the complexity
and confusion that surround their adjudication. Some cases are black and white, to
be sure, but a startling percentage are not. We have a much less clear idea than we
need of what, exactly, we have criminalized in criminalizing attempt. It is therefore
often very difficult to tell if a particular defendant has committed a criminal
attempt; the courts do not know exactly what they are looking for. This confusion

74
Jerome Hall , Criminal Attempt—A Study of Foundations of Criminal Liability, 49 YALE L.J. 789, 789 (1940).

33
manifests itself, for instance, in the many and various descriptions of the
conditions that must be met in order for the defendant’s conduct to constitute more
than “mere preparation,” several of which are metaphorical (“direct movement
towards” completion, for instance). But it also comes up in many other places,
often in contexts in which the problems seem, at first glance, to be more tractable
than courts have actually found them to be. Consider three well-known problems.
First, the problem of specifying the line between solicitation and attempt: Ronald
Decker paid Wayne Holston $5000 to kill Decker’s sister. When Holston asked
Decker if he was sure this is what he wanted, Decker replied, “I am absolutely,
positively, 100 percent sure, that I want to go through with it. I’ve never been so
sure of anything in my entire life.”75 Unfortunately for Decker, Holston was not a
hitman but an undercover cop. Decker clearly solicited murder, a crime for which
he could be sentenced for up to nine years in prison in California, where he
lived.76But did Decker attempt murder? If so, he could be sentenced to life in
prison. When does asking someone to commit a crime amount to attempting it?
The court in Decker noted that a long string of decisions in California use the term
“slight acts” to refer to conduct in furtherance of a criminal intention that suffices
for attempt of the intended crime. Reasoning that since Decker made a down
payment, he engaged in such “slight acts,” the court convicted Decker of attempted
murder. But, of course, the question of whether an act is “slight” or less than slight
(whatever that might mean) is no easier to answer than the question of whether
Decker tried to kill his sister. The justices’ problem was that while they were
convinced that Decker tried to kill his sister, they were powerless to explain why
that was true, and so they used a bit of entirely uninformative legal terminology to
hide their confusion. Second, the problem of so-called “impossibility”: the
defendant in United States v. Crow had multiple conversations in an Internet
chatroom with someone going by the name of “StephieFL.”77 During the course of
their conversations, StephieFL claimed to be a thirteen-year-old girl. In fact, the
messages were written by an undercover (adult) police officer. Crow was charged
with attempting sexual exploitation of a minor because he tried to convince
StephieFL to send him sexually explicit photographs of herself. The completed
offense requires a showing that the person exploited is indeed a minor. Did Crow

75
People v . Decker, 157 P .3d 1017, 1019 (Cal . 2007 ).
76
CAL. PENAL CODE § 653 f(b) (West 2012).
77
United States v. Crow, 164 F.3d 229 (5th Cir. 1999).

34
attempt sexual exploitation of a minor, or does the fact that it was an adult he was
actually in contact with show that he did not? After all, given that Crow was
chatting with an adult, there was no chance at all that his conduct would succeed in
sexually exploiting a minor. Under which conditions do the circumstantial
elements of the completed crime need to be in place for the attempted crime? And
what mental state need the attempter have with respect to those elements when
they are absent? On appeal, Crow noted that the jurors had not been instructed that
for guilt they must find that the person Crow was attempting to sexually exploit
was in fact a minor As this is an essential element of the completed crime of
sexual exploitation of a minor, Crow claimed that it was also an essential element
of the attempt, and so the trial verdict could not stand. Crow was raising a general
question to which an answer is required: do circumstantial elements of completed
crimes need to be in place for attempts of those crimes (and if not, why not)? But
the court, having no idea how to answer this question, did not even try to give a
reason for its answer, simply asserting that Crow’s argument failed. The judges’
problem was that they were quite certain that Crow was trying to sexually exploit a
child in the sense of relevance to criminal responsibility. What they were ill
equipped to explain was how that is consistent with the fact that the only person
Crow was trying to sexually exploit, namely the one he was chatting with, was an
adult. The result is that the court lacked the tools it needed to explain why it
decided the case as it did.

The source of an attempt’s criminality: the criminality of

completion
A. The Transfer Principle
The confusion in the courts can potentially be remedied by an account of
what, exactly, the crime of attempt is. If we know exactly what it is to
attempt, then we can check to see whether someone like Decker or Crow or
Taylor did indeed attempt the crimes they were charged with attempting.
Theorists of attempt who have tried to give such accounts are typically
divided between the “subjectivists” and the “objectivists.” Struck by the fact
that attempts are often harmless—the bullet misses, the child is not
abducted, no drugs cross the border—subjectivists conclude that it must be
35
that attempts are properly punished thanks to their mens rea elements. From
this point of view, attempts are thought crimes. The fundamental challenge
for subjectivists, then, is to explain why it is not monstrous for a liberal
society to punish attempts. The task of meeting this challenge is typically
undertaken by offering an explanation for how the mental states involved in
attempt differ from other thoughts that it would be monstrous to punish (for
example, they involve resolute intention of a sort that is not idle, but is
manifested in action). Objectivists, by contrast, start with the thought that if
attempts were thought crimes, then it would be monstrous to punish them,
and so it must be that attempts are properly punished thanks to the conduct
that they involve; the emphasis is on actus reus rather than mens rea. The
challenge for objectivists is therefore to explain what it is about the conduct
involved in attempt thanks to which it is punishable despite its harmlessness
(for instance, it risks harm, is “proximate” to harm, or would result in harm
if not prevented). Neither subjectivists nor objectivists have taken seriously
the idea that to attempt is to try. Trying, like all the forms of action that
statutes criminalize, consists of mental states and conduct. So the fact that
trying involves these two parts does not distinguish trying from any other
form of action. Neither subjectivists nor objectivists have tried to explain the
criminalization of attempt through appeal to what distinguishes trying from
other forms of conduct. This simple fact suggests a middle way worthy of
exploration. Perhaps attempts are crimes because of the peculiar thing they
are, namely tryings, and not because they involve something else (bad
thoughts, bad conduct) that there are independent grounds for criminalizing.
As a first step toward developing this admittedly abstract idea, consider
something important that we find in ordinary morality. The father tells the
child not to jump on the sofa; no ice cream if she does. Moments later, the
child is charging toward the sofa with the intention of jumping on it. The
father stops her and says, “That’s just what I told you not to do!” Imagine
that the precocious child replies, “No, you told me not to jump on the sofa,
you didn’t tell me not to try to jump on the sofa. But all I managed to do was
try.” She speaks the simple truth. But she still would deserve to lose out on
ice cream. In promising to penalize completion, we also, just like that,
promise to penalize attempt. And so it is in the law: typically,
criminalization of attempts is accomplished automatically through the
36
 criminalization of completion. There is an ordinary notion of trying that we
take to be worthy of censure by the state whenever completion is worthy of
such censure. It can seem as though we need not say what it is to attempt, for
all that needs to be said is said already in describing completion. In this
respect, the logic of the law mirrors the logic of everyday morality. The
point can be made in a different way. Imagine that you are asked why it is a
crime to attempt murder. In answer you will cite those features of completed
murder that make it worthy of criminalization. Chances are, you won’t say a
word about attempt at all. What this implies is that we take the features of a
form of completed action in virtue of which it is properly considered a crime
to somehow transfer to the attempt. We criminalize attempts under the
following principle, which I will call “The Transfer Principle”: if a form of
conduct is legitimately criminalized, then so are attempts to engage in that
form of conduct. Under the Transfer Principle, the criminality of the
completed crime spreads only to attempts to perform that crime. The
criminality of attempted battery derives from the criminality of battery and
not from the criminality of, say, theft. The Transfer Principle supports
criminalizing an attempt, then, only if a description that applies to the
attempt—words that correctly describe what is attempted—is also an apt
description of a kind of conduct that is legitimately criminalized thanks to
the fact that it meets that description. So the Transfer Principle has an
important implication, which tells us where we should start in thinking about
attempt. Determining what is properly criminalized as an attempt requires
determining what ordinary notion of trying is implicated in the Transfer
Principle. In what sense of the term “try” is trying to jump on the couch
implicated in the proscription against jumping on it? Or, to put the question
in the legal context, in what sense of the term “try” is trying to commit a
crime implicated in the proscription against committing it? In short, we need
to know the necessary and sufficient conditions for trying in the way that
inherits criminality from that which one is trying to do.

B. The Wide and Narrow Senses of “Try”

We might think this problem is easy to solve: just appeal to our ordinary
notion of trying. We could then assess whether particular legal doctrines

37
 concerning attempt sort defendants as they ought to do, by seeing whether
our ordinary notion of trying sorts them in the same way. However, things
are not so simple. There are several “ordinary” notions of trying. In fact, a
quick glance at ordinary usage of the term “try” suggests that there are at
least two senses of the ordinary term that are different from the sense of
relevance to the law. And this leaves us wondering in what ordinary sense
trying is implicitly prohibited whenever we prohibit completion. We can see
that these two ordinary conceptions of trying are inadequate to our task by
seeing that trying, in those conceptions, sits uneasily with the Transfer
Principle. Under one ordinary usage of the term “try,” what might be called
the “wide” sense of the term, anything that would be true of the person’s act
were he to succeed in doing as he intends is part of what he is trying to do.78
We particularly find this usage in cases of mistake. But to see this, start with
an example that does not involve mistake. Consider someone who is paid a
sum to carry a pound of white powder into the United States from abroad.
He is quite certain that the powder is cocaine, but he is not motivated by that
fact. So long as he gets paid, he does not care if the stuff is cocaine, or
heroin, or talcum. Is this person trying to smuggle cocaine? Or to put the
same question another way, does the phrase “to smuggle cocaine” correctly
describe what this per is trying to do? In the wide sense of “try,” this is an
attempted cocaine smuggling not because of the person’s state of
knowledge, but because the stuff is actually cocaine. It is an attempt to
smuggle cocaine because if the intended smuggling had come to pass, it
would have been a smuggling of cocaine; and this counterfactual is true
because the stuff is actually cocaine. In this respect, the wide sense of trying
yields a result that is appropriate to the criminal law. Conduct like that of
this hypothetical person is of the sort implicitly prohibited as an attempt to
smuggle cocaine when cocaine smuggling is prohibited; the Transfer
Principle applies, and the wide sense of trying supports that result. So far so
good. But the wide sense of “try” does not capture what we are after, as we
can see from considering other kinds of cases, particularly those involving
mistakes. In the wide sense, a person who tries to take a suitcase that he

78
In his classic 1957 article, J.C. Smith claims that what I am calling the wide sense of trying is the sense of
relevance to the criminal law of attempts. See Smith, supra note 20. For the reasons explained below, Smith is
mistaken .

38
 reasonably but falsely believes to be his own has attempted theft. Imagine,
for instance, that the suitcase looks exactly like his and happens to have his
luggage tag, with his name on it, attached to it. He reaches for the suitcase,
acting on an intention to take it, and is stopped by the suitcase’s true owner,
who explains that the luggage tags were switched by mistake by the airline
employees. It’s a simple mistake. Is it an attempted theft in the sense of
relevance to criminal law? Of course not. But it counts as such under the
wide sense of “try,” since the following is true: were this person to have
succeeded in taking the suitcase, he would have taken something that was
not his own. The problem here is not only conflict with intuition about what
should be criminal. We can see this in part by noticing that, had the person
in the example just given been charged with the crime of attempted theft, he
would have been able to cite the fact that he did not know the suitcase was
not his in his defense, and such a defense would have succeeded. Such a
person would never, for this reason, be convicted of attempted theft. The
problem is that under the wide sense of trying, such a person would be
speaking falsely were he to say, in his defense, “I wasn’t trying to take
someone else’s property.” A person can respond to an accusation either by
showing that he did not do what he is accused of having done, or by showing
that, although he did it, he is not rightly punished for it (because it is
justified, for instance, or because he was insane when he did it). In the
example just described, the first sort of response is appropriate, but it is
denied to the defendant under the wide sense of trying; under the wide sense
of trying, the defendant was trying to take someone else’s property. The
problem is that such a person ought not to be understood as needing to
account for his behavior in light of the fact that completed theft is a crime;
he did not attempt theft in the sense in which the criminality of completed
theft transfers, and so he can admit that those who attempt theft need to
account for their behavior and simply deny that he is among them.

C. Taking Stock

39
 We are seeking an account of the kind of trying that is of relevance to the
criminal law of attempts. Our first step was to discover the Transfer
Principle, which arises naturally from the observation that in ordinary life
the prohibition of completion brings with it, intrinsically, the prohibition of
some welldefined, although not explicitly defined, class of failed efforts to
engage in the prohibited act. The same is true in the criminal law. Criminal
attempts are all and only those failed efforts that are implicitly criminalized
when we criminalize completion. We then started to look for the necessary
and sufficient conditions for membership in that class. We found that neither
the “wide” nor the “narrow” sense of trying provided us with an adequate
account of those conditions. This leaves us, then, with a question: if it is
neither the “wide” nor the “narrow” sense, what sense of trying is of
relevance to the criminal law? The answer will be offered in Part III of this
Article. Before we provide the answer, we need to take a detour into the
study of the nature of intention. To see the need for it, notice that both the
“wide” and the “narrow” senses of trying take intention to be crucial to
trying. Part of what it is to try is to intend. The two senses of trying grant
different roles to intention in determining what a person is trying to do, but,
still, intention is in both cases crucial to trying. In fact, this is no accident,
for in any ordinary sense of trying, intention is essential. To identify a third
ordinary sense of trying, we need to identify a third possible role for
intention to play in establishing what a person is trying to do. But to do that,
we need to know more about what an intention is. So, progress on the
problem of specifying the kind of trying that inherits its criminality from
success—the kind of trying that matters to criminal law—starts with
reflection on the nature of intention.

40
2014 New Jersey Revised Statutes
Title 2C - THE NEW JERSEY CODE OF CRIMINAL JUSTICE
Section 2C:5-1 - Criminal attempt
2C:5-1. Criminal attempt

a. Definition of attempt. A person is guilty of an attempt to commit a crime if,

acting with the kind of culpability otherwise required for commission of the crime,
he:

(1) Purposely engages in conduct which would constitute the crime if the attendant
circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing such result without further conduct on his
part; or

(3) Purposely does or omits to do anything which, under the circumstances as a

reasonable person would believe them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commission of
the crime.

b. Conduct which may be held substantial step under subsection a. (3). Conduct
shall not be held to constitute a substantial step under subsection a. (3) of this
section unless it is strongly corroborative of the actor's criminal purpose.

c. Conduct designed to aid another in commission of a crime. A person who

engages in conduct designed to aid another to commit a crime which would

41
establish his complicity under section 2C:2-6 if the crime were committed by such
other person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such other person.

d. Renunciation of criminal purpose. When the actor's conduct would otherwise

constitute an attempt under subsection a. (2) or (3) of this section, it is an
affirmative defense which he must prove by a preponderance of the evidence that
he abandoned his effort to commit the crime or otherwise prevented its
commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not,
however, affect the liability of an accomplice who did not join in such
abandonment or prevention.

Within the meaning of this chapter, renunciation of criminal purpose is not

voluntary if it is motivated, in whole or in part, by circumstances, not present or
apparent at the inception of the actor's course of conduct, which increase the
probability of detection or apprehension or which make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar objective
or victim. Renunciation is also not complete if mere abandonment is insufficient to
accomplish avoidance of the offense in which case the defendant must have taken
further and affirmative steps that prevented the commission thereof.

42
2010 Georgia Code
TITLE 16 - CRIMES AND OFFENSES
CHAPTER 4 - CRIMINAL ATTEMPT, CONSPIRACY, AND
SOLICITATION
§ 16-4-6 - Penalties for criminal attempt

(a) A person convicted of the offense of criminal attempt to commit a crime

punishable by death or by life imprisonment shall be punished by
imprisonment for not less than one year nor more than 30 years.

(b) A person convicted of the offense of criminal attempt to commit a

felony, other than a felony punishable by death or life imprisonment, shall
be punished by imprisonment for not less than one year nor more than one-
half the maximum period of time for which he or she could have been
sentenced if he or she had been convicted of the crime attempted, by one-
half the maximum fine to which he or she could have been subjected if he or
she had been convicted of the crime attempted, or both.

(c) A person convicted of the offense of criminal attempt to commit a

misdemeanor shall be punished as for a misdemeanor.

43
Attempt: An Overview of Federal Criminal Law
Introduction
Attempt is a crime of general application in every state in the Union, and is largely
defined by statute in most. The same cannot be said of federal law. There is no
generally applicable federal attempt statute.79 In fact, it is not a federal crime to
attempt to commit most federal offenses. Here and there, Congress has made a
separate crime of conduct that might otherwise have been considered attempt.
Possession of counterfeiting equipment and solicitation of a bribe are two
examples that come to mind More often, Congress has outlawed the attempt to
commit a particular crime, such as attempted murder, or the attempt to commit one
of a particular block of crimes, such as the attempt to violate the controlled
substance laws. In those instances, the statute simply outlaws attempt, sets the
penalties, and implicitly delegates to the courts the task of developing the federal
law of attempt on a case by case basis. Over the years, proposals have surfaced that
would establish attempt as a federal crime of general application and in some
instances would codify federal common law of attempt.80 Thus far, however,
Congress has preferred to expand the number of federal attempt offenses on a
much more selective basis.

Background
Attempt was not recognized as a crime of general application until the 19th
century. Before then, attempt had evolved as part of the common law development
of a few other specific offenses. The vagaries of these individual threads frustrated
79
United States v. Hite , 769 F.3d 1154, 1162 (D.C.Cir. 2014).
80
E.g., H.R. 1823 (112th Cong.); H.R. 1772 (111th Cong.); H.R. 4128 (110th Cong.); S. 735 (107th Cong.); S. 413
(106th Cong.); S. 171 (105th Cong.).

44
early efforts to weave them into a cohesive body of law. At mid-20th century, the
Model Penal Code suggested a basic framework that has greatly influenced the
development of both state and federal law.

The Model Penal Code grouped attempt with conspiracy and solicitation as
“inchoate” crimes of general application. It addressed a number of questions that
had until then divided commentators, courts, and legislators.

A majority of the states use the Model Penal Code approach as a guide, but deviate
with some regularity.81 The same might be said of the approach of the National
Commission established to recommend revision of federal criminal law shortly
after the Model Penal Code was approved.82 The National Commission
recommended a revision of title 18 of the United States Code that included a series
of “offenses of general applicability”—attempt, facilitation, solicitation,
conspiracy, and regulatory offenses.83 In spite of efforts that persisted for more
than a decade, Congress never enacted the National Commission’s recommended
revision of title 18. It did, however, continue to outlaw a growing number of
attempts to commit specific federal offenses. In doing so, it rarely did more than
outlaw an attempt to commit a particular substantive crime and set its punishment.
Beyond that, development of the federal law of attempt has been the work of the
federal courts.

Definition
Attempt may once have required little more than an evil heart. Th substantial step:
“A person is guilty of an attempt to commit a crime, if acting with the kind of
culpability otherwise required for commission of the crime, he ... purposely does or
omits to do anything that, under the circumstances as he believes them to be, is an
act or omission constituting a substantial step in a course of conduct planned to
culminate in his commission of the crime.” The Model Penal Code then provided
several examples of what might constitute a “substantial step”—lying in wait,
luring the victim, gathering the necessary implements to commit the offense, and

81
For a discussion of some of the diversity of state law see, Cahill, Attempt by Omission, 94 IOWA LAW
REVIEW. 1207 .
82
Public Law 89-801, 80 Stat. 1516 (1966), created the National Commission on Reform of Federal Criminal Laws.
83
FINAL REPORT OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS: A
PROPOSED NEW FEDERAL CRIMINAL CODE (TITLE 18, UNITED STATES CODE)(Final Report), Ch. 10
(1971).

45
the like. The National Commission recommended a similar definition: “A person is
guilty of criminal attempt if, acting with the kind of culpability otherwise required
for commission of a crime, he intentionally engages in conduct which, in fact,
constitutes a substantial step toward commission of the crime.” Rather than
mention the type of conduct that might constitute a substantial step, the
Commission defined it: “A substantial step is any conduct which is strongly
corroborative of the firmness of the actor’s intent to complete the commission of
the crime.” Most of the states follow the same path and define attempt as intent
coupled to an overt act or some substantial step towards the completion of the
substantive offense. Only rarely does a state include examples of substantial step
conduct.

Intent and a Substantial Step

The federal courts are in accord and have said, “As was true at common law, the
mere intent to violate a federal criminal statute is not punishable as an attempt
unless it is also accompanied by significant conduct,” that is, unless accompanied
by “an overt act qualifying as a substantial step toward completion” of the
underlying offense. The courts seem to have encountered little difficulty in
identifying the requisite intent standard. In fact, they rarely do more than note that
the defendant must be shown to have intended to commit the underlying offenses.
What constitutes a substantial step is a little more difficult to discern. It is said that
a substantial step is more than mere preparation. A substantial step is action
strongly or unequivocally corroborative of the individual’s intent to commit the
underlying offense. It is action which if uninterrupted will result in the commission
of that offense, although it need not be the penultimate act necessary for
completion of the underlying offense. Furthermore, the point at which preliminary
action becomes a substantial step is fact specific; action that constitutes a
substantial step under some circumstances and with respect to some underlying
offenses may not qualify under other circumstances and with respect to other
offenses. It is difficult to read the cases and not find that the views of Oliver
Wendell Holmes continue to hold sway: the line between mere preparation and
attempt is drawn where the shadow of the substantive offense begins. The line
between preparation and attempt is closest to preparation where the harm and the
opprobrium associated with the predicate offense are greatest. Since conviction for
attempt does not require commission of the predicate offense, conviction for
46
attempt does not necessitate proof of every element of the predicate offense, 84or
any element of the predicate offense for that matter. Recall that the only elements
of the crime of attempt are intent to commit the predicate offense and a substantial
step in that direction. Nevertheless, a court will sometimes demand proof of one or
more of the elements of a predicate offense in order to avoid sweeping application
of an attempt provision. For instance, the Third Circuit has held that “acting ‘under
color of official right’ is a required element of an extortion Hobbs Act offense,
inchoate or substantive,” apparently for that very reason.

Defenses
Impossibility
Defendants charged with attempt have often offered one of two defenses—
impossibility and abandonment. Rarely have they prevailed. The defense of
impossibility is a defense of mistake, either a mistake of law or a mistake of fact.
Legal impossibility exists when “the actions which the defendant performs or sets
in motion, even if fully carried out as he desires, would not constitute a crime. The
traditional view is that legal impossibility is a defense to the charge of attempt—
that is, if the competed offense would not be a crime, neither is a prosecution for
attempt permitted.” Factual impossibility exists when “the objective of the
defendant is proscribed by criminal law but a circumstance unknown to the actor
prevents him from bringing about that objective.”85 Since the completed offense
would be a crime if circumstances were as the defendant believed them to be,
prosecution for attempt is traditionally permitted. Unfortunately, as the courts
have observed, “the distinction between legal impossibility and factual
impossibility [is] elusive.”86 Moreover, “the distinction ... is largely a matter of
semantics, for every case of legal impossibility can reasonably be characterized as
a factual impossibility.” 87 Thus, shooting a stuffed deer when intending to shoot
a deer out of season is offered as an example of legal impossibility. Yet, shooting
into the pillows of an empty bed when intending to kill its presumed occupant is

84
United States v. Pires, 642 F.3d 1, 6 (1st Cir . 2011); United States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011).
85
United States v. Rehak, 589 F.3d 965, 971 (8th Cir. 2009).
86
United States v. Manzo, 636 F .3d at 67.
87
7 United States v. Tykarsky, 446 F.3d at 465-66.

47
considered an example of factual impossibility. The Model Penal Code avoided
the problem by defining attempt to include instances when the defendant acted
with the intent to commit the predicate offense and “engage[d] in conduct that
would constitute the crime if the attendant circumstances were as he believe[d]
them to be.” Under the National Commission’s Final Report, “[f]actual or legal
impossibility of committing the crime is not a defense if the crime could have been
committed had the attendant circumstances been as the actor believed them to be.”
Several states have also specifically refused to recognize an impossibility defense
of any kind. They have sometimes conceded the possible vitality of legal
impossibility as a defense, but generally have judged the cases before them to
involve no more than unavailing factual impossibility. In a few instances, they
have found it unnecessary to enter the quagmire, and concluded instead that
Congress intended to eliminate legal impossibility with respect to attempts to
commit a particular crime.

Abandonment
The Model Penal Code recognized an abandonment or renunciation defense . A
defendant, however, could not claim the defense if his withdrawal was merely a
postponement or was occasioned by the appearance of circumstances that made
success less likely. The revised federal criminal code recommended by the
National Commission contained similar provisions. Some states recognize an
abandonment or renunciation defense; the federal courts do not. Admittedly, a
defendant cannot be charged with attempt if he has abandoned his pursuit of the
substantive offense at the mere preparation stage. Yet, this is for want of an
element of the offense of attempt—a substantial step—rather than because of the
availability of an affirmative abandonment defense. Although the federal courts
have recognized an affirmative voluntary withdrawal defense in the case of
conspiracy, the other principal inchoate offense,88 they have declined to recognize
a comparable defense to a charge of attempt.

88
United States v. Williams, 605 F.3d 556, 569 (8th Cir. 2010); United States v. Gonzalez, 596 F.3d 1228, 1234
(10th Cir. 2010); United States v. Eppolito, 543 F.3d 25, 29 (2d Cir. 2008).

48
Sentencing
The Model Penal Code and the National Commission’s Final Report both imposed
the same sanctions for attempt as for the predicate offense as a general rule.
However, both set the penalties for the most serious offenses at a class below that
of the predicate offense, and both permitted the sentencing court to impose a
reduced sentence in cases when the attempt failed to come dangerously close to the
attempted predicate offense. The states set the penalties for attempt in one of two
ways. Some set sanctions at a fraction of, or a class below, that of the substantive
offense, with exceptions for specific offenses in some instances; others set the
penalty at the same level as the crime attempted, again with exceptions for
particular offenses in some states.

Most federal attempt crimes carry the same penalties as the substantive offense.
The Sentencing Guidelines, which greatly influence federal sentencing beneath the
maximum penalties set by statute, reflect the equivalent sentencing prospective.
Except for certain terrorism, drug trafficking, assault, and tampering offenses,
however, the Guidelines recommend slightly lower sentences for defendants who
have yet to take all the steps required of them for commission of the predicate
offense.

Relation to Other Offenses

The relation of attempt to the predicate offense is another of the interesting
features of the law of attempt. It raises those questions which the Model Penal
Code and the National Commission sought to address. May a defendant be charged
with attempt even if he has not completed the underlying offense? May a defendant
be charged with attempt even if he has also committed the underlying offense?
May a defendant be convicted for both attempt and commission of the underlying
offense? May a defendant be charged with attempting to attempt an offense? May a
defendant be charged with conspiracy to attempt or attempt to conspire? May a
defendant be charged with aiding and abetting an attempt or with attempting to aid
and abet?

49
Relation to the Predicate Offense
A defendant need not complete the predicate offense to be guilty of attempt. On
the other hand, some 19th century courts held that a defendant could not be
convicted of attempt if the evidence indicated that he had in fact committed the
predicate offense. This is no longer the case in federal court—if it ever was. In
federal law, “[n]either common sense nor precedent supports success as a defense
to a charge of attempt.” The Double Jeopardy Clause ordinarily precludes
conviction for both the substantive offense and the attempt to commit it. The
clause prohibits both dual prosecutions and dual punishment for the same offense.
Punishment for both a principal and a lesser included offense constitutes such dual
punishment, and attempt ordinarily constitutes a lesser included offense of the
substantive crime. Instances where the federal law literally appears to create an
attempt to attempt offense present an intriguing question of interpretation.
Occasionally, a federal statute will call for equivalent punishment for attempt to
commit any of a series of offenses proscribed in other statutes, even though the
other statutes already proscribe attempt. For example, 18 U.S.C. 1349 declares that
any attempt to violate any of the provisions of chapter 63 of title 18 of the United
States Code “shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt.” 63 Within
chapter are sections that make it a crime to attempt to commit bank fraud, health
care fraud, and securities fraud. There may be some dispute over whether
provisions like those of Section 1349 are intended to outlaw attempts to commit an
attempt or simply to reiterate a determination to punish equally the substantive
offenses and attempts to commit them.

Relation to Other General Provisions

Conspiracy
The Model Penal Code and National Commission resolved attempt to attempt and
conspiracy to attempt questions by banning dual application. Crimes of general
application would not have applied to other crimes of general application. A few

50
states have comparable provisions. The federal code does not. The attempting to
conspire or conspiring to attempt questions do not offer as many issues of unsettled
interpretation as the attempt to attempt questions, for several reasons. First, the
courts have had more occasion to address them. For instance, it is already clearly
established that a defendant may be simultaneously prosecuted for conspiracy to
commit and for attempt to commit the same substantive offense. Second, as a
particular matter, conspiracies to attempt a particular crime are relatively
uncommon; most individuals conspire to accomplish, not to attempt. Third, in a
sense, attempting to conspire is already a separate crime, or alternatively, is a
separate basis for criminal liability. Solicitation is essentially an invitation to
conspire, and solicitation to commit a crime of violence is a separate federal
offense. Moreover, an attempt that takes the form of counseling, commanding,
inducing, procuring or aiding and abetting another to commit a federal crime is
already a separate basis for criminal liability. Fourth, a component of the general
conspiracy statute allows simultaneous prosecution of conspiracy and a substantive
offense without having to addressing the conspire to attempt quandary. The
conspiracy statute outlaws two kinds of conspiracies: conspiracy to violate a
federal criminal statute and conspiracy to defraud the United States. Conspiracy to
defraud the United States is a separate crime, one that need not otherwise involve
the violation of a federal criminal statute. Consequently, when attempt or words of
attempt appear as elements in a substantive criminal provision, conspiracy to
attempt issues can be avoided by recourse to a conspiracy to defraud charge. For
example, the principal federal bribery statute outlaws attempted public corruption.
The offense occurs though no tainted official act has yet been performed or
foregone. It is enough that the official has sought or been offered a bribe with the
intent of corrupting the performance of his duties. Bribery conspiracy charges
appear generally to have been prosecuted, along with bribery, as conspiracy to
defraud rather than conspiracy to violate the bribery statute.

51
Aiding and Abetting

Unlike attempt, aiding and abetting is not a separate offense; it is an alternative

basis for liability for the substantive offense. Anyone who aids, abets, counsels,
commands, induces, or procures the commission of a federal crime by another is as
guilty as if he committed it himself. Aiding and abetting requires proof of
intentional assistance in the commission of a crime by another. When attempt is a
federal crime, the cases suggest that a defendant may be punished for aiding and
abetting the attempt and that a defendant may be punished by attempting to aid and
abet the substantive offense.

52