Attempt

Incomplete Offences

Attempt is a one of a number of so-called incomplete or “inchoate” offences. The term is misleading as the “incomplete” offences are themselves offences.

The three types of inchoate offence are attempting, conspiring, or inciting to undertake the principal offence. For example, attempted murder, incitement to theft, and conspiracy to cause malicious damage are each offences of themselves.

Basis of Attempt Offences

An attempt to commit an indictable offence is an offence in itself at common law. The attempted crime may be committed even though no offence is ultimately committed. It may even be impossible. The victim may suffer no injury or may not even be aware of the attempt.

At common law it was a misdemeanour to attempt to commit a crime. This applied regardless of whether the crime was one at common law or by statute.

Very many statutory offences now provide that an attempt to commit the offence is also an offence. A lesser penalty may be provided. Many such offences are indictable i.e., non-minor triable by a jury.

Murder is an offence at common law. Attempted murder was an offence at common law but is now provided for by statute.

Trial and Penalty

A person may be convicted of an attempt to commit the offence in a trial for the principal offence. This may arise where it is determined that the attempted steps exist beyond reasonable doubt but there is a reasonable doubt as to the accused having committed the principal offence.

At common law, the court determined the penalty for attempt. In cases where statutes provide for the offence of attempting the principal offence, the maximum penalty may be laid down by law.

An attempt to commit an arrestable offence (i.e., one potentially carrying five or more years imprisonment) is itself an arrestable offence, for the purpose of criminal procedure rules.

Acts Required

There must be some act constituting the attempt. The act or acts must go beyond mere preparation. The must be some steps towards commission of the crime.

Intention by itself is not enough. This position reflects the principle that criminal law does not penalise intention of itself.

A distinction is drawn between preparatory acts and acts that go a substantial distance towards the commission of the principal crime itself. There may be a thin line between the two.

Steps must not be too remote. They must be sufficiently proximate. Whether this is the case will depend on the circumstances. In the usual manner, inferences may be made from facts which are proven.

Steps Taken

Not all acts aimed at committing the substantive event constitute the offence. A remote act would not be sufficient. An act immediately connected with the offence may  be sufficient in some cases. In other circumstances it may be held that the steps are too remote and that there has been insufficient steps or movement towards commission of the principal crime.

The Irish courts take the view that the steps taken must be sufficiently close with the complete offence or so-called proximate to it. Generally, the accused must have come close or even very close to committing the crime.

The steps taken must go beyond mere preparation. There must be movement towards the commission of the crime itself. There must be a connection between the moves and steps taken and the crime. If there is remote connection only between the steps taken and the offence is insufficient for attempt.

An step may be proximate if it is part of  series of steps intended to result cumulatively  in the crime. The completion or attempted completion of one of a series of acts intended by the accused to result in the offence may suffice as an attempt to commit the offence even though the completed act unless followed by others, would not result in the offence.

Steps by way of an attempt undertaken outside the jurisdiction to commit an offence within the jurisdiction constitute an offence. This is the case even though the committing the principal offence outside the jurisdiction would not usually be subject to the State’s jurisdiction

Intent and Attempt

There must be an intention to perpetrate the complete offence. This is the case even if the complete offence could be constituted by recklessness.

Cases have emphasised that  a mere desire or non-specific intention is insufficient. The mens rea or guilty mind for the principal offence may not be enough if there is no specific intent to commit that crime

The intent must be to commit the principal offence itself. Where the crime is based exclusively on negligence or recklessness   an attempt to commit it will not be possible as there will not be required specific intent.

Intention is required in relation to the completion of the offence. As with other offences, the intention may be inferred from the circumstances.

If there is no reasonable explanation for any other inference, then the accused is found to have the requisite intent and may be convicted of an attempt to commit the offence concerned. Evident recklessness as to the circumstances, may be sufficient in some cases to establish intent

Attempt Issues

A person may be convicted of an attempt to commit a crime even though he changed his mind after having formed the requisite intent and undertaking the relevant steps towards commission of the crime.

If a person comes sufficiently close or proximate to committing an offence but then abandons the attempt, this is not of itself be a defence to the attempt. Where the accused was apprehended before he could complete the crime in circumstances where  steps have been taken towards execution it may be held that there was sufficient steps, even though further steps and execution  were stopped by arrest or apprehension.

A person may be convicted of an attempt to commit an offence, even where the commission of an offence is not possible. For example, where, the impossibility relates to the method employed, which may be deficient to achieve the relevant result, he may be convicted. Therefore, in a case where a person attempted to poison with a dose that was not, in fact, sufficient, he was convicted of attempted murder.

In some cases attempting the impossible may be a defence.; e.g. murdering a deceased person or where the person wrongfully believes something to be a crime, where it is not.  Attempting a crime constituted by negligence or recklessness may not be capable of having the requisite intent.