# Attempt, Desistance and Participation

Law I · Foundations of Criminal Law and the Theory of the Offence · https://tryals.app/learn/law-i/attempt-desistance-and-participation

## The Road to the Offence

The *iter criminis* describes the path from initial thought to exhausted consequence.

| Stage | Treatment |
|---|---|
| **Deciding to offend** | Not punishable. Thoughts do not offend |
| **Preparatory acts** | Not punishable, unless expressly provided by law |
| **Attempt** | Punishable |
| **Completion** | Punishable |
| **Exhaustion** | Adds nothing to criminal liability |

Three preparatory acts are punishable when the law expressly states:

- **Conspiracy**: two or more agree to commit an offence and resolve to execute it.
- **Proposal**: a person resolved to offend invites others to participate.
- **Provocation**: inciting an offence publicly; if the offence follows, it is punished as **induction**.

### Attempt and Desistance

Under the Code, an attempt requires beginning execution directly by external acts.

- **Unfinished attempt**: only part of the execution acts are performed.
- **Finished attempt**: all execution acts are performed, but the result does not occur.
- **Apt attempt**: the means and object could produce the result.
- **Inapt attempt**: the means cannot produce the result, yet remains generally punishable.
- **Unreal attempt**: superstitious means; never punishable.

Article 62 lowers the penalty for an attempt by **one or two degrees**.

**Desistance** exempts a person who **voluntarily** prevents completion. Stopping because the police arrived is not voluntary.

### Who Commits the Offence

Article 27 sets liability for principals and secondary parties.

- **Article** **28** defines **authors** as those who commit the act directly, jointly, or through an instrument. It also includes direct inducers and necessary cooperators.
- Article 29 defines **accomplices** as those who assist without falling under Article 28. Article **63** reduces their penalty by one degree.

Courts rely on **control of the act** to identify the true author.

### Accessoriness of Participation

Participation is strictly **accessory**. Secondary liability requires a principal act that is typical and unlawful.

> **Common pitfall:** Inducers are not automatically cleared if the principal is acquitted. If the principal lacks culpability, the inducer remains liable. If the principal's act was **justified**, no unlawful act exists, and the inducer is cleared.

## Practice questions

9 of this lesson's 14 practice questions, with answers. The full set is in the app.

### 1. Arrange the steps by which a court fixes the penalty for an accomplice in an attempted offence, in order.

**Answer:**

1. Take the penalty the law fixes for the completed offence committed by the author
2. Apply the reduction the Code requires for the degree of execution reached
3. Apply the reduction the Code requires for the degree of participation
4. Adjust within the resulting range for mitigating and aggravating circumstances

**Why:** The order is fixed by the Code and it changes the answer. Reductions by degree are applied to the range, and applying them in a different order, or applying circumstances first and reducing afterwards, produces a different final range from the same facts. This is one of the few places in the general part where the arithmetic is genuinely mechanical.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/arrange-the-steps-by-which-a-court-fixes-the-penalty-for-an

### 2. A firm resolution to commit an offence, unaccompanied by any external act, is punishable as a preparatory act.

**Answer:** False

**Why:** **False.** Deciding to offend is not punishable at all: *cogitationis poenam nemo patitur*. Even the preparatory acts that are external — conspiracy, proposal, provocation — are punishable only in the cases the law expressly provides, so the criminal law joins the road late and joins it only where the legislator has said so in advance.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/a-firm-resolution-to-commit-an-offence-unaccompanied-by-any-external

### 3. Why is an attempt punished less severely than the completed offence?

A. The graduated reduction lets the court distinguish an attempt near completion from one barely begun
B. The legal good has not been harmed, only endangered
C. The penalty is reduced by one or two degrees according to the danger and the degree of execution reached
D. The attempt is punished less because the intention was weaker

**Answer:** A. The graduated reduction lets the court distinguish an attempt near completion from one barely begun; B. The legal good has not been harmed, only endangered; C. The penalty is reduced by one or two degrees according to the danger and the degree of execution reached

**Why:** The fourth gets the mental element backwards. The intention in an attempt is the full intention of the completed offence, that is what makes it an attempt at all. What is missing is the harm to the legal good, which is why the reduction is graduated by how close the conduct came and how dangerous it was.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/why-is-an-attempt-punished-less-severely-than-the-completed-offence

### 4. Match each form of intervention to what defines it.

**Answer:**

- Sole author → Carries out the act personally and alone
- Co-author → Carries out the act jointly with others, sharing control of the event
- Indirect author → Carries out the act through another person used as an instrument
- Inducer → Directly moves another to commit the offence, and is considered an author
- Necessary cooperator → Contributes an act without which the offence would not have been done
- Accomplice → Cooperates by prior or simultaneous acts falling short of the above

**Why:** The last pair is the one that decides real cases. An accomplice and a necessary cooperator both contribute without controlling the event, and the difference, whether the contribution was indispensable, carries a full degree of penalty. Courts approach it by asking whether the contribution was a scarce good the others could not readily have obtained elsewhere.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/match-each-form-of-intervention-to-what-defines-it

### 5. Under Article 63 of the Criminal Code, by how many degrees is an accomplice's penalty reduced below that of the author?

**Answer:** 1

**Why:** **One degree**, and it is fixed rather than discretionary. Contrast the attempt reduction, which is by one **or two** degrees at the court's appreciation. The difference is deliberate: how far an attempt got is a matter of degree that the court must weigh, whereas being an accomplice rather than an author is a binary classification.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/under-article-63-of-the-criminal-code-by-how-many-degrees-is-an

### 6. Participation in crime is strictly accessory to the principal deed rather than an independent wrong. What follows from this principle when the main perpetrator acts under a recognised legal justification?

A. The secondary party is convicted only if they exercised functional control
B. The secondary party receives a penalty reduced by one degree under the Code
C. The secondary party avoids liability because no unlawful act took place
D. The secondary party remains fully liable if they acted with clear intent

**Answer:** C. The secondary party avoids liability because no unlawful act took place

**Why:** Secondary liability requires an act that is both typical and unlawful. If justification negates wrongfulness, no baseline offence exists to attach secondary liability to. Culpability defects in the principal leave liability intact, but lack of unlawfulness clears all secondary participants.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/participation-in-crime-is-strictly-accessory-to-the-principal-deed

### 7. Article 28 treats the inducer and the necessary cooperator as authors for the purposes of the penalty, although neither carries out the act personally.

**Answer:** True

**Why:** **True**, and the wording repays attention. Article 28 first defines authors — alone, jointly, or through another as an instrument — and then says that inducers and necessary cooperators *shall also be considered* authors. They are participants assimilated to authors for punishment, which is why the doctrine still analyses them as participation and the Code still punishes them as authorship.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/article-28-treats-the-inducer-and-the-necessary-cooperator-as-authors

### 8. Sort each act by how the criminal law treats it.

**Answer:**

- Not punishable at all: Agreeing together to rob a shop, Wishing rival harm
- Punishable only where the law expressly provides: Forming plan to rob, Broadcasting to incite
- Punishable as an attempt: Forcing a door to rob, Reaching in till before seized

**Why:** The boundary between the second and third columns is the beginning of execution, and it is where most of the litigation happens. Forcing the door is the start of executing the robbery; agreeing to commit it is not, however firmly it was agreed, which is why the second column exists only for the specific offences the legislator has singled out.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/sort-each-act-by-how-the-criminal-law-treats-it

### 9. Arrange the events of this case in the order they occurred.

**Answer:**

1. A decides to rob a shop
2. A and B agree to carry out the robbery together
3. A buys a mask and a crowbar
4. A forces the shop door at night
5. A is seized inside before taking anything

**Why:** Laying the case out in time shows how much of it the criminal law ignores. The first and third events are not punishable, deciding is not an act, and buying a mask and a crowbar is preparation of a kind the law does not single out. The second is punishable only if conspiracy is expressly provided for this offence, and only the last two are the attempt.

Page: https://tryals.app/practice/law-i/attempt-desistance-and-participation/arrange-the-events-of-this-case-in-the-order-they-occurred