Withdrawal from Attempt in Norwegian Criminal Law

Introduction: Cessation of Criminal Liability Upon Withdrawal

In Norwegian criminal law, an offender who has commenced a criminal act but not completed it can, under certain conditions, achieve immunity by withdrawing from the attempt. The Penal Code § 50 regulates when and how withdrawal from an attempt can result in the cessation of already incurred criminal liability.

Withdrawal from an attempt is not merely a theoretical legal concept but has practical significance in the judiciary. The provision gives the offender an incentive to cease the criminal act and acknowledges that one who voluntarily refrains from completing a crime demonstrates a less fixed criminal intent.

Conditions for Withdrawal

In order for the rule on withdrawal to be applicable, the following conditions must be met:

1. The offender must have commenced a punishable attempt
   Withdrawal is only relevant when the act has surpassed the threshold for non-punishable preparation and qualifies as a punishable attempt under the Penal Code § 49. If the act is merely at the preparation stage, there is no criminal liability that can be nullified.

2. The crime must not be completed
   Withdrawal is excluded when the crime is completed. Here, at most, there can be a reduction in penalty under § 59, not full immunity. This is particularly significant in:

   • Crimes described as acts of attempting ("he who seeks to...")

   • Cases where the crime is consummated immediately upon taking (e.g., theft)

   • Violations of the Road Traffic Act § 22 (driving under the influence) where "attempting to drive" is equated with driving

Incomplete and Complete Attempt

The law distinguishes between two types of attempt and sets different requirements for withdrawal in each case:

Incomplete Attempt

An attempt is deemed incomplete when the offender still has something remaining to do before the crime is completed. Examples:

• The offender has opened the cash drawer to steal but has not yet taken the money

• The offender has assaulted a woman to rape her but has not yet achieved his objective

• The offender has ordered drugs, but delivery and payment have not occurred

In the case of an incomplete attempt, it is only required that the offender "of his own free will ... refrains from the criminal activity." It is sufficient that he voluntarily gives up proceeding with the act - no positive preventive action is required.

Requirement of Voluntariness

The withdrawal must be "of his own free will." This means that the offender must abandon the attempt even though he believes it would have been possible to complete the crime. Withdrawal is not voluntary if it is due to:

• The arrival of the police or others

• The realization that the act cannot be accomplished with the available means

It is not required that the withdrawal is due to remorse. Withdrawal can also be motivated by:

• Fear of detection

• Realization that the benefit is less than expected

• Insight that the difficulties are greater than anticipated

Complete Attempt

An attempt is considered complete when the offender has done everything he deemed necessary, without the result having yet occurred. This can be due to:

• The attempt having failed (shots missing the target)

• A chain of events being initiated that has not yet concluded (e.g., an arson event with delayed effect)

A complete attempt is only possible in crimes where completion involves a consequence separate from the criminal activity itself. In crimes like theft, rape, and document forgery, the attempt remains incomplete until the crime is consummated.

In the case of a complete attempt, it is not sufficient for the offender to remain passive. Here it is required that he actively "prevents the consequence, the occurrence of which would complete the crime." This is a requirement for a positive preventive action.

Requirements for Prevention and Knowledge of Discovery

For immunity in the case of a complete attempt, the following conditions apply:

1. The offender must actually succeed in preventing the consequence

2. The prevention must occur "before he yet knows that the criminal activity has been discovered"

It is not necessary for the offender himself to be identified, but it must be discovered that there is a crime. It is the offender's knowledge at the time of prevention that is decisive - not whether the act has actually been discovered.

Withdrawal in Concert

When several individuals have acted together in a crime, the question of immunity due to withdrawal is decided individually for each participant. This can result in some becoming immune while others are punished.

For aiding and abetting, the following principles apply:

• For an accomplice to achieve immunity, it is not sufficient to just passively withdrawal

• The one who has provided a psychological contribution to the crime must actively counteract it, for example, by making it clear to the principal offender that he will not participate

• In the case of physical assistance, the accomplice must neutralize his contribution (e.g., take back lent tools)

• The instigator must prevent the crime from execution to achieve immunity

Qualified Attempt

In so-called qualified attempts - where the attempt act simultaneously constitutes another completed crime - only the penalty for the attempt falls away due to withdrawal. The penalty for the completed crime remains.

Examples:

• One who breaks in to steal but leaves the place without taking anything, becomes immune from the attempted theft, but can be punished for completed burglary (§ 147)

• One who abandons an attempted rape can be punished for the violence (§ 228) and coercion (§ 222) already committed

• One who stabs someone with the intent to kill but subsequently ensures the victim receives help so that life is saved, can be punished for bodily harm but not for attempted murder

Procedural Matters

Withdrawal from an attempt is a subsequent ground for immunity that sheds light on the offender's subjective guilt. The question of immunity due to withdrawal thus pertains to the question of guilt, not the question of penalty.

In a Court of Appeal case with a jury, the jury must answer no to the question of guilt if it finds that there is immunity due to withdrawal.

Justification for the Rule

The rule on immunity due to withdrawal is justified by several considerations:

1. Individual Preventive Considerations:
   The one who withdraws shows that he does not have a fixed criminal intent.

2. Incentive to Withdraw:
   The promise of immunity can give the offender a positive motive to withdraw and prevent harm.

3. Societal Considerations:
   It is beneficial for society that initiated crimes are not completed and that harmful effects are averted.

Summary

Withdrawal from an attempt is an important criminal law concept that balances several considerations: On one hand, the desire to punish commenced criminal acts, and on the other hand, the desire to give the offender an incentive to withdraw the act and prevent harm.

The rules are designed in a way that distinguishes between different stages in the commission of a crime and imposes stricter requirements for withdrawal the closer the act is to completion. This reflects that the closer the offender is to completion, the greater the need for an active reversal action to demonstrate that the criminal intent has been abandoned.