This article on ‘Determining attempt as an inchoate crime’ is written by Nilanjana Banerjee and aims to focus on ‘attempt’ as an inchoate crime and different aspects related to it. I. Introduction Commission of crime requires several stages and elements. It starts from planning – plotting, preparing and finally making attempts. The attempt to commit a crime, if… Read More »

This article on ‘Determining attempt as an inchoate crime’ is written by Nilanjana Banerjee and aims to focus on ‘attempt’ as an inchoate crime and different aspects related to it. I. Introduction Commission of crime requires several stages and elements. It starts from planning – plotting, preparing and finally making attempts. The attempt to commit a crime, if successful can result in crimes as set out in code. The attempts if unsuccessful can result in crimes...

This article on ‘Determining attempt as an inchoate crime’ is written by Nilanjana Banerjee and aims to focus on ‘attempt’ as an inchoate crime and different aspects related to it.

I. Introduction

Commission of crime requires several stages and elements. It starts from planning – plotting, preparing and finally making attempts. The attempt to commit a crime, if successful can result in crimes as set out in code. The attempts if unsuccessful can result in crimes sometimes and at times does not result in any crime.

Generally, crimes are finished acts that are made punishable by law but an attempt to commit a crime can also be punished if they satisfy certain elements. Such categories of incomplete acts leading to crimes are called inchoate crimes. There are several tests that determine whether an attempt classifies as a crime.

II. Inchoate crime

In layman’s terms, ‘inchoate’ means incipient or just begun. Therefore inchoate crimes mean such crimes which have just begun i.e. in their early stages. It can also be that the offender has attempted to commit the crime but failed to finish it or it can be an agreement to commit a criminal act or even instigating others to do so. The former is the inchoate crime of criminal conspiracy while the latter is called solicitation.

The unfinished acts lead to a crime that is different from what it would have been if the act had been finished. The reason for incorporating unfinished acts as a crime is to punish the individual who attempted to do a crime and also prevent him from committing any crime further. There are chances that the person who could not complete a crime, may attempt to commit the criminal act all over again.

III. Attempt as a Crime – General view

In early English laws, an attempt was not considered any crime, but as time passed and law evolved, an attempt started to be considered as a crime. The first case of attempt was Rex v. Scofield[1]. In this case, the servant tried to burn down his master’s house but was unsuccessful in his attempt. He was convicted for his unsuccessful attempt to burn down the house.

Thereafter attempt was again convicted in the case of Rex v. Higgins. In this case, the court convicted the attempt to commit theft and laid down the firm base and established the attempt as a crime.

In contemporary times, most states criminalise the attempt to commit a crime but the issue is that the term ‘attempt’ has been left undefined in most of the courts and thus, left at the discretion of the courts.

Texas Penal Code says that there are two types of attempts recognised as crimes general attempt and specific attempt. The statutes concerning general attempts have laid down elements in such a way that they can apply to any criminal offence, yet there are several states which do not criminalise attempts in a codified statute and consider it a common-law crime.

1. Criminal act for attempt

The criminal act element required for an attempt varies from state to state. But there is one thing in common with every state criminalising attempt. That common thing is mere plotting and planning is not any criminal offence in itself. Mere preparation of any crime is not considered enough to be constituted as a crime. Basically, the attempt is determined by how close the person was, to complete the criminal act. In most of the statutes, the attempt is very loosely defined which keeps room for flexibility in several criminal cases.

2. Criminal intent

The criminal intent required to satisfy any act as the attempt is specific intent or purposely committing a crime. There is no concept of reckless or negligent attempt which means, if the prosecution fails to prove that there was specific intent or the act is proved as a negligent act, then it can operate as a defence to ‘attempt’ as a crime but, it should be proven beyond a reasonable doubt.

IV. Determining Attempt as Crime

There are four tests that determine an attempt as a crime-

  1. Proximity Test – This test measures the offender’s progress in attempt to commit a crime. It determines how close the offender was in completing the offense. The test measures the distance between preparation and successful commission of act. What is to be focussed is amount of work left to be done and not what has been done already.

Example– Suppose Matthew wanted to poison his neighbour’s dog as it barks all along. For that purpose, Matthew bought some poison. Then he coated some meat on it and then threw it over the fence on neighbourhood’s side. But the dog and neighbour were out of station that night.

Next morning Matthew felt bad for his act so he jumped off the fence to see the dog’s condition. He found that the piece of meat was untouched. In this course of action, he had committed the attempt to do a criminal act, as per the proximity test as he has taken every possible step for killing the dog.

  1. Res Ipsa Loquitor Test– The phrase ‘ipsa loquitor’ means the thing speaks for itself. It is also known as un-equivocality test. It aims to determine that when the defendant stopped making progress towards actual commission of crime, whether it was clear that defendant had no other purpose that committing that specific crime. In this test, facts of each case have to be analysed separately.

Example– Suppose Harry wants to kill his brother John for the insurance policy. Harry contacted a hit man for that purpose paid him to kill John. But the hit man apparently had police contacts with police and everything was revealed. The state where all of this happened recognised the test of Res Ipsa Loquitor. By the test, whatever steps Harry was taken, makes it clear that he had no other intent than killing his brother J ohn. Therefore, he can be convicted.

  1. Probable Desistance Test – This test measures how much the wrong doer has progressed in commission of the crime rather than measuring how much is left to finish the commission of crime. As per this test, a defendant commits attempt when a certain line is crossed and beyond that line, he or she will not desist until and unless some outside force interrupts the course of action.

Example– Suppose Matthew wanted to steal a ruby from a jewellery store where he works. He told one of his friends about the plan. Then (after the shop is closed) at night he went to the shop, opened the gate, turn off the safety alarm, switches off the camera. Then he bends down to open the locker where ruby is kept. But just then light goes on, police points the gun at him.

As per probable desistance test, he has committed a crime because the series of acts he has done shows that he had stealing away in his mind. Moreover, there was no going back in what he was doing until any external agency desisting him.

  1. Substantial Steps test – This test was laid down by Model Penal Code to simplify the complicated testing process and prevent arbitrary application of the test. Chances of conviction under this test is higher as what other tests consider to be preparatory, this test considered it to be substantial attempt.

There are two parts to it. Firstly, the defendant must take substantial step towards committing of a crime. While, the second part is that defendant’s action must be corroborative with his criminal intention. Moreover, Model Penal Code has laid down seven instances which can be considered as substantial steps provided they corroborate with offender’s intention.

These seven examples are – lying in wait; enticing the victim to go to the crime spot; unlawfully entering there, where crime is to be committed; possessing materials which aid in commission; possessing or fabricating materials to be used in crimes and also soliciting an agent to commit the crime.

Example– Suppose Kevin wants to rob the van delivering cash to the bank. For that, since last two months, he has been noticing the time of arrival of the van. He plans everything and writes everything in his diary. He even hides a weapon, thereafter goes to the crime spot and hides behind bushes. As soon as the van arrives, he took out his weapon and went near the van. But the security guards stopped him.

As per the substantial steps test, Kevin has taken substantial steps like possessing weapon, waiting in the spot, planning the whole act. Therefore he can be convicted.

V. Defences Available

There are two significant defences available, other than failure to prove criminal act and criminal intent. Those two defences are legal impossibility and voluntary abandonment.

  1. Legal Impossibility– Two types of impossibility are there i.e. factual and legal. It is legal impossibility which acts as defence in attempt. In legal impossibility, the doer believes that the act he or she does is illegal but actually that is not. Example– Matthew and Melissa wanted to kill their neighbour’s dog. For that, Melissa went to a shop to buy poison. She believed that to buy poison, one must be at least 21 years old but the age limit is 18 years only. In the first shop, she was asked to produce her identity card, so she went away. But in second shop, no such card was demanded. Therefore she bought it. This will act as legal impossibility because she believed her act was illegal when it was not.
  2. Voluntary Abandonment – In this the defendant himself abandons the plan to commit the crime. This defence has two parts, first the defendant must a change of heart and it should not be motivated by possibility of detection. Secondly, the abandonment should be a complete and absolute one. It should not be mere postponement.[2] For example as mentioned in the previous defence, suppose, Melissa changes her mind about giving poison and talks to Matthew. Even Matthew decides to destroy the poison. In this both of them have voluntarily abandoned the commission the crime. Therefore they are no more convicted under attempt.

VI. Conclusion

Inchoate Crimes are different from the general notion of crime as these sets of crimes intend to punish wrong doer for their unfinished act. But not all unfinished acts can be punished. Only those crimes that have reached the stage of attempt are to be convicted under ‘attempt’.

Merely plotting, planning and making preparations is not enough, there has to be an attempt. It is difficult to ascertain which act is attempt and to simplify this task, four tests are laid down- proximity test, res ipsa loquitor test, probable desistance test and substantial steps test. There are two defences available to ‘attempt’, one is voluntary abandonment and another is legal impossibility. This was all about ‘attempt’ as inchoate crimes.


References

[1] Cald. 397 (1784)

[2] Model Penal Code, s. 5.01 (4), (1962).


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 2021-09-01T09:07:22+05:30
Nilanjana Banerjee

Nilanjana Banerjee

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