When Intent Falls Short: Should Attempted Crimes Carry the Same Weight as Completed Ones?
Crime, the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal law1.
Crime , is an act committed or omitted in violation of a public law, either forbidding or commanding it. Criminal law is the body of law that defines crimes, sets punishments, and regulates the prosecution of offenders by the state. It aims to maintain public order and safety by deterring and punishing unlawful behavior. Additionally, it seeks to rehabilitate offenders and provide justice for victims.
Ultimately, criminal law upholds societal norms and protects individuals from harm. The main elements to prove the commission of a crime is the Actus Reus and mens Rea, the physical element and the mental state of the accused respectively.
The successful execution of the crime is main distinguishing element between a crime and an attempt. Then the question arises, with the fact that the main element of a crime is not completed, should such an attempt be punishable? Should the law go in line with the Yoruba adage that says “ it is he who commits a crime that will be amputated?
I shall explore the aforementioned in this essay by presenting arguments for and against the motion for equal punishments for a completed crime and an attempt and I will offer a reasoned conclusion.
Understanding attempt and completed crime
It is an attempt to commit any offence2 . Attempt is one of species of inchoate offences punishable with mere intention.
An attempt is where a person tries to commit an offence but for some reasons fails to complete it. When a person, intending to commit an offence begins to put his intention into execution by means adapted to its fulfillment and manifests his intention by some avert act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence3. Not every act of the accused is capable of constituting an attempt for a crime. Attempt is classified as an offence which, though the offender only tries to commit that main offence without actually doing the act or completing it, yet attracts punishment as though it were full crime.
In Jegede v. State4 , the supreme court defines an attempt as “a situation where a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended, either through an intervening act or involuntary obstruction he is said to commit the attempt of the offence intended.
Also, in Commonwealth v. Eason , “an attempt is defined as an overt act done in pursuance of intent to do a specific thing, tending to the end but falling short of the complete accomplishment of it. What is the main aim of criminalising attempt?
Generally, the main of punishing a crime is to ensure that criminals pay the piper and serve as a deterrent to other upcoming criminals. This, from the aforementioned rationale for punishment, does this mean no one should be punished for having not completed an intended crime?
Hence, the aim of crime punishment must be seen to be more extensive than mere punishment but also prevention of crimes which is one of the salient reasons which gave birth to punishing attempt. For the prosecution to successfully prove an attempt there are three elements laid down by virtue of section 4 of the criminal code which provided a crystal clear distinction between a completed offence and an attempt. Here in are three major elements that are required for the offence of attempt to be established :
- Specific intent to commit a crime
- manifestation of such intention by some overt act
- Then failure to complete the commission of the crime.
It is to be noted that the Latin phrase “ Ingorantia Legum non excusat” which means, ignorance of the law is no excuse actually has an exception in case of attempt.
This, to prove an attempt the prosecution must prove the specific intent to commit that particular offence so that the accused must know the nature of what he is intending to do. The reverse is the case in a consummated crime where no specific intent is required to prove the commission of a crime.
In Iden v. State 5 , the court held that To constitute an attempt, the act must be immediately connected with the possible commission of the substantive offence. In other words, there must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence.
In Okafor V. State6, the court distinguished attempt from a mere preparation by stating that In order to constitute an attempt to commit an offence, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence.
It is also essential to mention the legal principles governing attempt, namely:
- Mens Rea
- Actus Reus
Mens Rea of attempt
Mens rea simply means a guilty mind. The principle is that the guilty mind instigates the guilty act or flows into the guilty act. Intent can be proved either positively where there is proof of the declared intent of the accused person or inferentially from the overt act by the accused.
Therefore, in law an accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not 7.
For an attempt, the prosecution must prove that the accused intended to commit the offence which he is alleged to have attempted.
Thus, since an accused must intend to commit an offence, he cannot be guilty of attempting to commit a crime which can be committed only recklessly or negligently. No man can be accused of attempted manslaughter by negligence8 that is, unintentional killing.
The Actus Reus of attempt
The question that arises here is, how far must the accused have gone in his plan before he can he can be said to be guilty of attempt? The test for the actus Reus for attempt varies by jurisdictions and in Nigeria, the courts have so far been content to describe each case on its merits.
Now to the topic of discussion, which is to canvas arguments for or against equal punishments for both attempt and a completed crime.
Arguments For
Firstly, it is essential to reiterate that for both offences there is something in common and that is the mens Rea of the offence. A person who attempted murder and have manifested the acts up to a reasonable and substantial extent but could not consummate the act itself probably due to an external force or from himself had intended to do the same act as someone as someone who eventually consummated the act.
One of the strongest arguments for equal punishment is that offenders who commit the same crime with the same intent (mens rea) should be held equally accountable. The principle of mens rea, or “guilty mind,” is a fundamental concept in criminal law that determines an individual’s level of culpability. Both offenders still acted with full criminal intent.
For instance, a person who shoots at another with the intention to kill but misses is no less guilty in terms of intent than someone whose shot is fatal. A failed attempt does not determine the culpability of an individual. The mere nurturing of a specific intention to commit such a crime makes such a person in the same shoe with the person who consummated the crime.
Further more, it is important to pay a visit to the African traditional criminal justice system likewise the Shariah law which makes the public punishment of some offences mandatory. Public punishment of offences embodies the value to serve as deterrence to others who are planning or likely to commit such offence.
The essence of crime prevention would be jeopardised if someone who has attempted to commit a crime goes scot free just the actual actus Reus of the offence has not been consummated. Equal punishment for the actual crime and attempt to commit such a crime will make it known to the citizens that their mere attempt to commit a crime will be punished as though they committed such an offence thereby elucidates any attempt to commit an offence by other citizens.
Now, If we should follow the perspective that crimes should be punished and not an attempt to commit a crime then every criminal will believe in luck. Criminal attempts are popularly abated due to external forces and in such a situation attemptors will believe then have luck on their side. Luck should not determine justice.
Arguments against equal punishment for attempt and a true crime
If attempt is punished equally as a completed crime does that not eliminate the principle of non- maleficent, that is do no harm? How does theaw that seeks to protect the citizens’ interest now be a source of harm to the citizens?
A crime is not a crime until it causes a damage to another. An attempt has not in anyway result into any harm. A person who has not inflicted harm on another should not be subjected to harm merely because such a person had attempted to do so. Punishing a completed crime equally as an attempt jeopardise the proportionality principle which states that punishment should be proportional to the harm caused.
Sometimes problems do not require swords and spears to be solved, some problems can be solved by applying ethical principles. The law should aim to give people hope and not make them so stubborn. Imposing a lesser punishment for attempt has a great social value that has been overlooked by many.
A person who knows that if he is caught on the attempt he already made he would be punished as though he has completed such a crime will most likely proceed to just consummate such an offence. The law should serve e rehabilitatitive purpose to citizens and not a retributive purpose.
In conclusion, the debate over whether an attempted crime should be punished the same as a completed crime is a legal and philosophical battleground where justice, morality, and deterrence collide. On one side, the argument for equal punishment rests on the principle that intent and effort to commit harm are just as culpable as the harm itself, and justice should not be left to the whims of chance. On the other hand, the harm principle, legal proportionality, and the potential for desistance suggest that punishment should reflect the actual consequences of the crime.
Ultimately, the law must balance fairness with deterrence. While an attempt may not always cause tangible harm, the risk posed by individuals willing to cross the threshold of criminality cannot be ignored. A rigid, one-size-fits-all approach may fail to account for nuances in different cases.
Instead, a system that recognizes the seriousness of an attempt while maintaining proportionality in sentencing—perhaps through judicial discretion—strikes a more just balance. After all, the difference between an attempted and completed crime is often a matter of luck, but justice should never be left to chance.
1 britannica.com/topic/crime-law
2 ACJA, 224,
3 S. 4 CC Law Cap 28, LFN 2004.
4 (2001) 14 NWLR (Pt. 733) 264
5 (1994) 8 NWLR (Pt. 365) 719
6 (2016) 4 NWLR (Pt. 1502) 248
7 Olaiya V. State (2018) 10 NWLR (Pt. 1626) 1
8 R V. Ejikeme (1944) 10 W.A.C.A. 252.
About Author
Sharafadeen Muhsinah Wuraola is a driven and ambitious law student with demonstrated interest in leadership and policy making. She is an ardent legal researcher and writer whom through years of participation in internships, volunteerism and extra-curricular activities is experienced and equipped to take on tasks from numerous areas of law and finance. She can be reached via: [email protected].
