Attempts in Norwegian Criminal Law - from Preparation to Execution

Introduction: The Three Stages in Realizing a Criminal Intent

In Norwegian criminal law, there is a distinction between three stages in realizing a criminal intent:

1. The Preparation That Is Free from Punishment

2. The Punishable Attempt

3. The Completed Crime

The general rule is that attempts at crimes are punishable but are punished more leniently than completed crimes (Penal Code §§ 49 and 51). However, attempts at misdemeanors are not punishable (§ 49, 2nd paragraph). For crimes, the boundary between attempt and completion primarily affects the severity of the penalty, while for misdemeanors, it is decisive for the punishability itself.

Penal Code § 49 defines an attempt as follows: "A Punishable Attempt occurs when a Crime is not completed, but an Act has been taken whereby its Execution was intended to be commenced." This definition marks the boundary both upwards towards the completed crime and downwards towards the preparation that is not punishable.

The Boundary Between Attempt and Completed Crime

The boundary between attempt and completed crime is, in principle, simple to draw: The crime is completed when all that is required by the specific penal provision is present. What is necessary depends on the description in the penal provision.

For example:

• In provisions targeting the causation of a harmful result, the crime is not completed until the result has occurred as an adequate consequence of the act

• In the case of danger crimes, it is required that a risk has occurred as an adequate consequence of the act

• Where the penal provision describes the mode of action, the time of completion depends on the expressions used by the law

Some penal provisions are formulated such that the violation is completed already with an attempt, for example, § 98: "Whoever attempts to cause or contribute to changing the state constitution by unlawful means." In such cases, there is no question of distinguishing between attempt and completed violation.

The Boundary Between Attempt and Preparatory Action

The boundary between punishable attempt and preparation that is not punishable is more complicated. For an action to be considered a punishable attempt, the execution of the crime must be "intended to be commenced" according to § 49.

The decisive factor is whether the action, when viewed in context with the criminal activity and in light of all attendant circumstances, shows that the perpetrator is now directly moving towards a criminal goal. The perpetrator’s conduct must show that the time of preparations and considerations is over and that he is now proceeding to action.

This means that:

1. There must be an intention of completion by the perpetrator

2. The completion should, according to the perpetrator’s assumptions, occur in reasonably immediate connection with the action taken

Obtaining tools, making agreements with other participants, or conducting investigations at the scene are preparatory actions free from punishment. Also, a promise or offer to commit a crime is generally considered only as a preparatory action.

In assessing how far the perpetrator must have come to be punishable for an attempt, emphasis is placed on the psychological difference between the action already taken and the one remaining. The decisive factor is whether the action has reached a point where it is natural to say that the execution of the crime has begun.

Unserviceable Attempt

A particular question is whether the attempt must have resulted in an objective danger of a completed legal violation to be punishable, or whether the perpetrator’s subjective beliefs are entirely decisive. This concerns the issue of the so-called unserviceable attempt.

There is a distinction between:

• Attempt using an unserviceable means (e.g., attempted murder with a substance that is actually harmless)

• Attempt against an unserviceable object (e.g., attempted theft from an empty pocket)

In Norwegian law, it is clear that even unserviceable attempts are punishable. This follows from the Penal Code’s expression "intended to be commenced" in § 49, which establishes a subjective attempt principle. The decisive factor is not whether the action was objectively capable of completing the crime, but whether the perpetrator believed it was.

Examples from case law:

• A man who tried to open a money box by hitting it with a roof tile was convicted of attempted aggravated theft even though the method was unserviceable (Rt. 1932 p. 1034)

• A driver was convicted of attempted drunk driving even though the car was stuck in the gravel and could not drive (Rt. 1971 p. 416)

• A person who kept and forwarded a package he believed contained drugs, but which actually contained caffeine, was convicted of attempted drug crime (Rt. 1993 p. 916)

Traditionally, acts resulting from pure superstition, such as attempting to take someone’s life through prayers or curses, are exempted from attempted punishment.

Preparatory Actions as Independent Crimes

Although preparatory actions are generally free from punishment, the legislature has in certain cases made such actions independent crimes (delictum sui generis). It is particularly preparatory actions that have a particularly dangerous character, and which also outwardly bear the mark of a criminal purpose, that are given such a special status.

Examples:

• Entering into an agreement to commit certain serious crimes (§§ 94, 104, 147 a, 159, 162 c, 223, 225, 233 a and 269)

• Acquiring firearms, explosives, or other means to commit crimes (e.g., §§ 161, 177 and 269 no. 2)

• In the case of forgery, not only the use of forged documents (§ 183) but also the forgery itself (§ 185) and preparation for document forgery (§ 186) are separate crimes

Once an act is made an independent crime, it is judged in every way as any other crime, and there may be question of an attempt at this act.

Subjective Conditions for Attempt Punishment

For attempt punishment, intent is required. This is evident from the definition of an attempt in § 49, which uses the expression "intended to be commenced." Attempt at negligent crimes is not punishable.

The law does not require intent, only ordinary intention. The attempt and the completed crime are therefore identical on the subjective side; the difference lies in the objective.

The Penalty for Attempted Actions

Attempts must be punished more leniently than the completed crime (§ 51). This is not merely a discretion for the court but a mandate. This means that:

1. The maximum penalty set by the penal provision for the crime cannot be applied to an attempted action

2. A lesser penalty than would have been appropriate if the crime had been completed must be imposed

The law also allows for a reduction of the penalty below the usual minimum and to a milder type of punishment (§ 51, 1st paragraph, 2nd sentence).

In some cases, the legislature has determined that the attempt should be punished the same as the completed crime (e.g., § 100), or that it can be punished the same (§§ 148 and 151 a, 3rd paragraph).

Qualified Attempt

Often, an attempt at a crime is simultaneously a completed lesser crime (qualified attempt):

• Attempted murder can be a completed bodily injury

• Attempted rape can be a completed bodily offense and coercion

• Attempted burglary theft can be a completed burglary

In these cases, there may be doubt whether one should convict for both the attempt and the lesser, completed crime, or whether one should suffice with conviction for the attempt. Case law is not consistent in this area. If there is only a conviction for attempt, the penalty cannot, in any case, be set below the minimum for the crime that is completed in connection with the attempt.

Comparison with Other Nordic Countries

The law of attempts shows significant differences between the Nordic countries:

• Denmark goes far towards attempt punishment: Preparatory actions are also judged there as punishable attempt, and the law does not say, as with us, that attempts must be punished more leniently than completed crimes, only that it can happen

• On the other hand, Sweden has no general rule of punishment for attempts; the attempt can only be punished where the specific penal provision expressly states it. Unserviceable attempt is usually punishable under Swedish law

Conclusion

The law of attempts in Norwegian criminal law balances between the consideration of the punishability of the criminal intent that has manifested in action and the consideration that the action has not led to the harm which the penal provision primarily seeks to prevent. The system with three stages - unpunishable preparation, punishable attempt, and completed crime - gives the courts the opportunity to nuance criminal responsibility according to how far the criminal plan has come in its realization.