Attempt in Nigerian Criminal Law: Understanding Section 4 of the Criminal Code
When Does Trying to Commit a Crime Become a Crime Itself?
What if someone tries to kill you but the gun jams? What if a thief breaks into your house but runs away before taking anything? What if someone plans to rob a bank but gets arrested while loading their getaway car?
In each case, the full crime wasn’t completed. But should the law wait until harm actually occurs before intervening? Nigerian criminal law says no. Through the offence of Attempt, the law punishes those who try to commit crimes, even if they fail.
This guide explains everything about attempt under Section 4 of the Criminal Code: what it is, when mere preparation crosses the line into criminal attempt, and how courts distinguish between thinking about a crime and actually trying to commit it.
1. What Is Attempt? Understanding Inchoate Offences
The Basic Concept
Attempt means you tried to commit a crime but didn’t complete it.
The word “inchoate” comes from Latin, meaning “unfinished” or “begun.”[^3] Attempt is an inchoate offence—you’re being punished for an incomplete crime.
Why Punish Incomplete Crimes?
Consider this powerful statement from the research materials:
“A person who tries to kill someone but for some reason fails is as morally guilty as someone who succeeds in killing, and possibly just as dangerous.”[^3]
The law recognizes several justifications for punishing attempts:
- Moral Culpability: Your intent was just as wicked
- Dangerousness: You’re a threat to society
- Prevention: The law can intervene before harm occurs
- Deterrence: Knowing attempts are punished deters criminal conduct
Example: Chike shoots at Ngozi intending to kill her, but misses. Ngozi is unharmed. Should Chike escape punishment because he’s a bad shot? No—his criminal intent and dangerous action warrant punishment.
2. Section 4 of the Criminal Code: The Statutory Definition
The Full Text (Simplified)
Section 4 defines when a person attempts to commit an offence. The key elements are:
A person attempts to commit an offence when:
- He intends to commit the offence, AND
- He begins to put that intention into execution by means adapted to its fulfillment, AND
- The intention is manifested by some overt act, BUT
- He does not fulfill his intention to the extent of committing the full offence[^3]
Let’s break down each element.
Element 1: Intention
You must intend to commit the specific offence.
What This Means:
- You have decided to commit the crime
- You have the required mens rea (guilty mind) for that offence
- This is not accidental or reckless—it’s purposeful
Example:
- ✅ Intention Present: You load a gun specifically intending to shoot and kill Adeyemi
- ❌ No Intention: You’re cleaning your gun and it accidentally discharges in Adeyemi’s direction (this might be negligence, but not attempted murder)
Element 2: Beginning Execution
You must begin to put the intention into execution.
This is where the law draws the critical line between:
- Preparation (not punishable)
- Attempt (punishable)
We’ll explore this crucial distinction in detail later.
Element 3: Overt Act
There must be some overt act that manifests your intention.
What “Overt” Means:
- Open, visible, observable
- Not just thoughts in your head
- Something you physically do in the external world
Example:
- ❌ Not Overt: Thinking “I’m going to rob that bank”
- ❌ Not Overt: Telling your friend “I’m planning to rob that bank”
- ✅ Overt: Loading a gun and walking toward the bank with a mask
Element 4: Non-Completion
You must not complete the full offence.
If you complete it, you’re guilty of the substantive crime (murder, theft, etc.), not attempt.
Example:
- If you shoot and kill someone → Murder (not attempted murder)
- If you shoot and miss → Attempted murder
3. The Critical Distinction: Preparation vs. Execution
This is the most important and difficult question in attempt law: When does preparation end and attempt begin?
Understanding the Three Stages
The case of R v. Unakanjo (1933) provides a clear framework. Every crime progresses through three stages:[^3]
| Stage | Description | Example | Punishable? |
|---|---|---|---|
| 1. Intention | Conceived in the mind | “I’ve decided to forge money” | ❌ No |
| 2. Preparation | Arranging means/measures | “I’m buying a printing machine to forge money” | ❌ Usually no* |
| 3. Attempt | Putting intention into execution | “I’m printing the fake notes now” | ✅ Yes |
*Some preparations are criminalized specifically by statute (e.g., preparation for forgery under Chapter 45, preparation with explosives under Section 514)[^3]
The Unakanjo Case Itself
Facts: The accused wrote a letter inquiring about purchasing a printing machine for the purpose of forgery. However, he did not post the letter.[^3]
Issue: Was this attempt?
Court’s Decision: No. The court held this was not even a “firm intention” manifested by an overt act. It remained preparation.[^3]
Lesson: Writing a letter but not sending it shows you’re still planning, not yet executing.
4. Legal Tests for Distinguishing Preparation from Attempt
Courts have developed several tests to determine whether you’ve crossed the line.
Test 1: The Proximity Test (R v. Eagleton, 1855)
The Rule: Acts “remotely leading” to the commission of an offence are preparation. Acts “immediately connected” with it are attempt.[^3]
What This Means: Ask yourself—how close is this act to completing the crime?
Example:
- Remote (Preparation): Buying a crowbar you’ll use to break into a house
- Proximate (Attempt): Using that crowbar to pry open a window
Test 2: The Equivocality Test (Turner’s Test)
This test asks: Do the accused’s actions indicate “beyond reasonable doubt what was the end to which they were directed“?[^3]
The Film Analogy
Professor Turner proposed this thought experiment:[^3]
Imagine the accused’s actions are captured on film. You stop the film at the moment of arrest. You show this film to an audience, but you tell them nothing about the accused’s intent.
Question: From the actions alone, can the audience identify only one reasonable conclusion about what the accused was trying to do?
- If yes → It’s an attempt (the actions are unequivocal)
- If no → It’s preparation (the actions are ambiguous)
Example 1: You see someone with a crowbar near a window at 2am.
- Question: Are they trying to break in, or are they a homeowner who lost their keys?
- Answer: Ambiguous (could be either) → Preparation
Example 2: You see someone smashing a window with a crowbar at 2am, reaching inside.
- Question: What are they trying to do?
- Answer: Obviously breaking in (unequivocal) → Attempt
5. Preparation Cases: Where the Line Was Not Crossed
Let’s examine cases where courts found the accused had not yet attempted the crime.
Case 1: R v. Robinson (1915) – The Fake Burglary
Facts:
- Robinson was a jeweler with insurance
- He faked a burglary at his shop
- He tied himself up and hid his stock
- He was arrested before making a claim to his insurance company[^3]
Charge: Attempted obtaining by false pretences
Issue: Had he attempted the fraud?
Court’s Decision: Not guilty of attempt.
Reasoning: The act of making the false claim to the underwriters was the core of the offence. Until he actually communicated his false claim, his actions were merely preparatory. The proximity test was not satisfied—he hadn’t gotten close enough to completing the fraud.[^3]
Lesson: Preparation can be elaborate and detailed, but until you take the penultimate step toward commission, it’s not attempt.
Case 2: R v. Offiong (1936) – The Unwanted Advances
Facts:
- The accused entered a woman’s room
- He undressed
- He caught hold of her[^3]
Charge: Attempted rape
Court’s Decision: Not guilty of attempt.
Reasoning: These acts indicated “desire” and “preparation” but fell short of execution of the rape itself.[^3]
Lesson: Even physically invasive preparation may not constitute attempt if the final act of commission hasn’t begun.
Note: This case is from 1936 and reflects older legal thinking. Modern courts might analyze this differently, especially given evolving understanding of sexual violence.
Case 3: Comer v. Bloomfield (1970) – The Insurance Inquiry
Facts: The accused wrote to insurers asking if a claim could be made for a “stolen” van.[^3]
Court’s Decision: Not attempt. Writing to inquire was not sufficiently proximate to making an actual fraudulent claim.
Lesson: Preliminary inquiries, even if suspicious, don’t cross into attempt.
6. Attempt Cases: Where the Line Was Crossed
Now let’s see cases where the accused did commit attempt.
Case 1: R v. Button (1900) – The Fraudulent Horse Race
Facts:
- Button entered a horse race under a false name
- Purpose: To get an unfair handicap advantage
- He won the race
- He was arrested before claiming the prize[^3]
Charge: Attempted obtaining by false pretences
Issue: Had he attempted the fraud by just running the race?
Court’s Decision: Guilty of attempt.
Reasoning:
- Unlike Robinson (who never contacted insurers), Button’s participation in the race was an execution of the fraud
- The act of running under a false name was “immediately connected” to obtaining the prize
- The only thing left was claiming the prize, but the fraudulent act was already complete[^3]
Comparison with Robinson:
| Case | What Accused Did | Was It Attempt? |
|---|---|---|
| Robinson | Set up fake burglary, tied himself up | ❌ No (never contacted insurers) |
| Button | Ran race under false name and won | ✅ Yes (fraudulent act completed) |
The key difference: Button’s participation in the race was itself the fraudulent act. Robinson’s staged burglary was just preparation for the fraudulent claim he never made.
Case 2: DPP v. Stonehouse (1977) – The Faked Death
Facts:
- John Stonehouse was a UK politician
- He faked his death by drowning in Miami
- Purpose: So his wife in England could claim insurance money
- His wife never actually made the claim
- He was arrested[^3]
Charge: Attempted fraud
Issue: Can you attempt a crime when the final act (wife claiming insurance) hasn’t occurred and is outside your control?
Court’s Decision: Guilty of attempt.
Reasoning:
- Faking his death was the final act he could personally perform to effect the fraud
- It was sufficiently proximate to the completed offence
- The fact that his wife would be the one to claim was irrelevant—his act was the essential fraudulent element[^3]
Lesson: The “last act” doctrine—once you’ve done everything you personally need to do to complete the crime, you’ve attempted it, even if the final result requires someone else’s participation.
Case 3: R v. Dognall (2003) – Attempted Rape
Facts:
- Dognall followed a woman
- He pulled her hair
- He explicitly stated his intent to rape her
- He was stopped before any sexual contact[^3]
Charge: Attempted rape
Court’s Decision: Guilty of attempt.
Reasoning:
- The court focused on the victim’s perception
- She was convinced she would be raped
- His acts went beyond preparation into execution
- The unequivocal nature of his conduct and statement left no doubt about his intent[^3]
Lesson: When the victim reasonably believes the crime is imminent and the accused has taken concrete steps toward commission, it’s attempt—even without direct physical contact toward the completed crime.
7. The Doctrine of Impossibility
Can you be guilty of attempting something that’s impossible?
Example Scenarios
- You try to steal from someone’s pocket, but the pocket is empty
- You try to kill someone who’s already dead
- You try to smuggle drugs, but the substance is actually harmless powder
Should these be attempts?
The Nigerian Position: Impossibility Is No Defence
Section 4 of the Criminal Code is explicit:[^3]
It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
What This Means: If you tried to commit a crime, you’re guilty of attempt even if—unknown to you—it was factually impossible to succeed.
Example: You try to pick an empty pocket. You intended theft and took steps toward it. The fact that there was nothing to steal doesn’t matter—you’re guilty of attempted theft.
The English Evolution: From Defence to No Defence
English law went through dramatic changes on this issue:
Pre-1981: Impossibility Was a Defence
If it was impossible to commit the crime, you couldn’t be convicted of attempt (based on Haughton v. Smith).
1985: Anderton v. Ryan – Brief Return to Defence
Facts: Ryan bought a VCR thinking it was stolen. It actually wasn’t stolen.
Decision: Not guilty of attempt. House of Lords held impossibility was a defence.[^3]
1987: Shivpuri – Overruling Ryan
This is the leading modern case.
Facts:
- Shivpuri believed he was smuggling heroin
- The substance was actually vegetable leaves (not illegal)
- He was arrested[^3]
Charge: Attempted importation of prohibited drugs
Issue: Can you attempt to import illegal drugs when the substance isn’t actually drugs?
House of Lords Decision: Guilty of attempt.
Reasoning:
- The House of Lords overruled Anderton v. Ryan (decided just 1 year earlier!)
- If the accused intends to commit the offence
- And does acts more than merely preparatory
- He is guilty regardless of factual impossibility[^3]
Lord Bridge’s Test:
- Did the accused intend to commit the offence?
- Did he do acts more than merely preparatory?
- If yes to both → Guilty, even if completion was factually impossible
Factual vs. Legal Impossibility
There’s one exception: Legal impossibility remains a defence.
Factual Impossibility (No Defence)
The crime is possible, but unknown circumstances make it impossible in this instance.
Examples:
- Trying to steal from an empty pocket (theft is a crime, pocket just happens to be empty)
- Trying to kill someone already dead (murder is a crime, victim just happens to be dead)
Legal Impossibility (Valid Defence)
What you’re trying to do isn’t actually a crime at all.
Leading Case: Taaffe (1984)
Facts:
- Taaffe imported currency into England
- He believed it was illegal to import currency
- It was not actually illegal to import currency[^3]
Decision: Not guilty of attempt.
Reasoning: You can’t attempt to commit a non-existent offence. If the law doesn’t prohibit what you’re trying to do, there’s no crime to attempt.[^3]
8. Practical Examples: Analyzing Real Scenarios
Scenario 1: The Bank Robbery Plan
Day 1: Chinedu decides to rob Unity Bank
- Stage: Intention
- Punishable? No (just thoughts)
Day 5: Chinedu buys a toy gun that looks real
- Stage: Preparation
- Punishable? No (buying legal items for future illegal use)
Day 10: Chinedu drives to the bank, parks across the street, and watches the security patterns for an hour
- Stage: Still preparation (reconnaissance)
- Punishable? No (could have innocent explanations)
Day 15: Chinedu enters the bank wearing a mask, holding the toy gun, and approaches the counter
- Stage: ATTEMPT
- Punishable? ✅ Yes – This is unequivocal and immediately connected to robbery
Scenario 2: The Poisoning Case
Scenario A: Amina buys rat poison and brings it home
- Stage: Preparation
- Punishable? No (ambiguous purpose—could be for rats)
Scenario B: Amina puts poison in a cup but hasn’t given it to anyone yet
- Stage: ATTEMPT (immediate proximity to the act)
- Punishable? ✅ Yes
Scenario C: Amina hands the poisoned cup to her husband, but he spills it before drinking
- Stage: ATTEMPT (all acts of execution complete, just didn’t succeed)
- Punishable? ✅ Yes
Equivocality Test:
- Scenario A: Ambiguous (could be killing rats or killing person)
- Scenarios B & C: Unequivocal (clearly trying to poison a person)
Scenario 3: The Impossible Theft
Facts: Ojo reaches into Kemi’s handbag intending to steal her phone. Unknown to him, Kemi’s bag is empty—she left her phone at home.
Analysis Using Nigerian Law:
- Did Ojo intend to steal? Yes
- Did he begin execution? Yes (reached into bag)
- Was it manifested by overt act? Yes (physical reaching)
- Was completion impossible? Yes (nothing to steal)
Result: Under Section 4, the impossibility is immaterial. Ojo is guilty of attempted theft.
9. Defences and Special Situations
Voluntary Withdrawal
Question: What if you change your mind?
General Rule: Once you’ve crossed from preparation into attempt, voluntary withdrawal is not a defence in Nigeria.
Example: You enter a house to steal, but feel guilty and leave without taking anything. You’ve still committed attempted theft—the attempt was complete when you entered with intent.
Contrast: If you’re still in preparation phase and stop, no crime (but proving you stopped before attempting is difficult).
Attempting to Aid and Abet
Can you attempt to aid someone else’s crime?
Example: You try to help your friend rob a bank by serving as lookout, but the robbery never happens.
Analysis: This raises complex questions about inchoate liability for inchoate offences. Nigerian law doesn’t provide clear guidance, but generally, attempting to aid an uncompleted crime is difficult to prosecute.
Multiple Attempts
Can you be charged with multiple attempts?
Example: You try to kill someone three times—poison fails, shooting misses, knife attack is stopped.
Answer: These could be:
- Three separate charges of attempted murder, or
- One charge with evidence of multiple attempts showing determination
10. Comparing Nigerian and English Law
Key Similarities
| Aspect | Both Jurisdictions |
|---|---|
| Mens Rea | Must intend to commit the offence |
| Actus Reus | Must take steps beyond preparation |
| Impossibility | Factual impossibility is no defence |
| Legal Impossibility | Remains a valid defence |
Key Differences
| Aspect | Nigeria (Section 4) | England (Criminal Attempts Act 1981) |
|---|---|---|
| Test | Intention + execution + overt act + non-completion | Act “more than merely preparatory” (Section 1(1))[^3] |
| Language | “Begin to put intention into execution” | “More than merely preparatory” |
| Strictness | Four-part test | Simpler “more than merely preparatory” test |
The English test is sometimes seen as more flexible, focusing on whether the act goes beyond mere preparation, while Nigeria’s test has four distinct requirements.
11. Punishment for Attempt
General Principle
The punishment for attempt is typically less severe than for the completed offence.
Logic: While morally culpable, the attempter didn’t actually cause the harm.
Statutory Framework (Criminal Code)
Different sections specify punishment for attempt of different crimes:
- Attempted murder: Varies, but severe (often up to life imprisonment)
- Attempted theft: Lower punishment than completed theft
- Attempted robbery: Lower punishment than completed robbery
Always check the specific statute for the completed offence to determine attempt punishment.
Conclusion: The Law’s Preventative Function
The offence of attempt represents criminal law at its most preventative. Rather than waiting for harm to occur, the law intervenes when someone crosses the line from planning to execution.
The Core Principles
- Intention is essential: You must intend to commit the specific crime
- Acts speak louder than thoughts: There must be an overt act in execution
- Preparation is generally not enough: You must move beyond planning into doing
- The tests help draw the line: Proximity, equivocality, and immediacy tests guide courts
- Impossibility doesn’t help: If you tried to do it, you’re guilty even if success was impossible
- Completion would eliminate attempt: If you succeed, it’s the substantive offence
The Practical Takeaway
Understanding attempt law helps you recognize when the law can intervene:
- For prosecutors: Knowing when evidence shows attempt rather than just preparation
- For defence lawyers: Arguing actions remained in preparation phase
- For students: Understanding how criminal law addresses inchoate liability
- For society: Appreciating how law prevents harm before it occurs
As the law recognizes, a failed killer is still a killer in intent and action—the law’s intervention at the attempt stage may save lives.
Related Topics
- Legal Reasoning in Judicial Process
- Legal Reasoning and Approach to Problems
- Sources of Law in Nigeria
- Aspects of Law: Understanding Legal Classifications
References
[^3]: The sources for this article are derived from the lecture materials on Attempt, with reference to Section 4 of the Nigerian Criminal Code. Case law analysis includes R v. Unakanjo (1933), R v. Eagleton (1855), R v. Robinson (1915), R v. Offiong (1936), Comer v. Bloomfield (1970), R v. Button (1900), DPP v. Stonehouse (1977), R v. Dognall (2003), Anderton v. Ryan (1985), Shivpuri (1987), and Taaffe (1984). Comparative analysis references Section 1(1) of the English Criminal Attempts Act 1981. The proximity test derives from R v. Eagleton, and the equivocality test from Professor Turner’s formulation.
This article is part of the LPI 301 Criminal Law series for law students. It is designed as a comprehensive study resource and should not be considered legal advice for specific situations. Always consult a qualified legal practitioner for advice on your particular circumstances.
