UNIVERSITY OF CAPE COAST

FACULTY OF LAW

CRIMINAL LAW 1

INCHOATE OFFENCES

GROUP 9
 INTRODUCTION

 Inchoate offence describes the category of offences that precede the

commission of a substantive offence.
 Thus, it is an offence to
 share criminal ideas with another and to agree to the commission of a
crime;
 contribute to the commission of any offence or
 make unsuccessful effort at committing a crime.
 There are 4 types of inchoate offences known under our criminal

jurisprudence, namely:

 attempt

 preparation

 conspiracy

 abetment
 CRIMINAL ATTEMPT - MEANING
 LaFave Scott say “The crime of attempt … consists of (1) an intent to do an act or to bring
about certain consequences which would in law amount to a crime and (2) an act in
furtherance of that intent which, as it is most commonly put, goes beyond mere
preparation.” (Ref. Criminal Law, 2nd ed (1986).

 Kingdom C J in R v Ajani (1936) 3 WACA 3 quoted the definition of attempt as follows:

“When a person intending to commit an offence, begins to put his intention into execution by
means adopted by its fulfilment, and manifests his intention by some overt act, but does not
fulfil his intention to such an extent as to commit the offence he is said to attempt to commit
the offence”
 ATTEMPT UNDER ACT 29
 Attempt is defined under section 18 (1) of the Criminal Offences Act, (1960) (Act 29).
 From the definition, it is clear that an attempt under Act 29 is complete when the train of
events culminating in the successful commission of the offence is at such a stage as to make it
an unavoidable conclusion what the purpose was, in embarking upon the particular course of
conduct.
 Proximate steps was taken as should have enabled one to succeed in his criminal objectives
had it not been for the following:
(1) the imperfection or other conditions of the means, (2) the circumstances under which they
were used (3) any circumstances affecting the person against whom, or the thing in respect of
which, the crime is intended or to be committed, or (4) the absence of that person or thing.

See; Duah v The Republic [1963] 2 GLR 385 SC; The Republic v Darko [1971] 2 GLR 227
 OTHER ESSENTIAL FEATURES

 The contemplated act need not be consummated;

 Some incidental offences can be committed in an attempt to commit an

offence See section 18(3)

 Criminal attempt also requires the concurrence of both mens rea and actus

reus.
 MENS REA OF CRIMINAL ATTEMPT

 Mens rea may be evidenced by external physical conduct on the part of the

party Involved.

 Impossibility of performance is no answer to the charge. See R v Ring

 A voluntary abandonment of a plan to commit an offence or a change of heart

is no answer to the charge if what the accused has done in the meantime

constitutes an attempt. See R v Lankford.

 ACTUS REUS OF CRIMINAL ATTEMPT
 The actus reus is the step taken by the accused person towards the commission
of the offence.
 How far must an accused person go in order to be guilty of criminal
attempt?
 The Act and the common law offers no definite guide.
 There are competing theories which serve as a guide in the determination of
actus reus.
 PUNISHMENT FOR CRIMINAL ATTEMPT

 Section 18 (2) provides that a person who attempts to commit a crime shall

be deemed guilty of an attempt and is punishable in the same manner as if

the crime had been committed except as otherwise expressly provided by

the Act.

 Section 18 (4) - Defences, exemptions or justifications or other extenuating

circumstances apply for a person charged with attempt.

 PREPARATION

 Section 19 of Act 29 deals with preparation for committing certain crimes.

 Preparation is made an offence in itself where the intended activity either

endangers life or involves dangerous equipment for committing crime which

is inherently dangerous or for committing forgery or any felony.

 PREPARATION (cont.)

 To prove the offence of preparation, it should be established that the person prepares, or

supplies, or has in his possession, custody, or control, or the custody or control of any other

person on behalf of the accused person:

 Any instrument,

 Materials, or

 Means,

 with intent that the instrument, material or means may be used in committing an offence in

which life is likely to be endangered, or forgery, or felony.

 PUNISHMENT FOR PREPARATION

 Section 19 provides that a person convicted for preparation is liable to be

punished as if the person has attempted to commit the offence.

 This means that punishment for preparation to commit an offence is the same

as attempt to commit that offence.

 CONSPIRACY - DEFINITION

 The common law defines conspiracy as an agreement by two or more persons to do or

cause to be done what is unlawful.

 The Common Law definition is in sync with the current formulation of the Ghanaian law

on conspiracy.

 The old section 23 (1) of the Criminal Offences Act defines conspiracy thus:

“Where two or more persons agree or act together with a common purpose for or in

committing or abetting a criminal offence, whether with or without a previous concert or

deliberation, each of them commits a conspiracy to commit or abet the criminal offence.”
 INGREDIENTS OF CONSPIRACY - OLD LAW

 It involves at least two persons plurality of minds.

 There must be an agreement to act together for a common purpose and/or,

 acting together with a common unlawful purpose.

 CONSPIRACY - NEW FORMULATION

 That the Revised Edition Act, (1998) Act 562 has led to a redefinition of conspiracy in

section 23 (1) of Act 29 as follows:

“Where two or more persons agree to act together with a common purpose for or in

committing or abetting a criminal offence, whether with or without a previous concert or

deliberation, each of them commits a conspiracy to commit or abet the criminal offence.”
 CONSPIRACY - NEW FORMULATION (cont.)

 The operative words in the section 23 (1) are “agreement to act” and that without the

agreement there cannot be an offence of conspiracy to commit the offence.”

 The essence of the changes brought about by the work of the Statute Law Review

Commissioner is that, under the new formulation, a person could no longer be guilty of

conspiracy in the absence of any agreement, whereas under the old formulation a person

could be guilty of conspiracy in the absence of any prior agreement.

 See Yirenkyi v The Republic [2016] 99 GMJ 1

 PLURALITY OF MINDS

 There must be two or more persons.

 This can be met by natural and/or artificial persons.

 One person only cannot be guilty of conspiracy.

 Note that one person only can be guilty of conspiracy where the allegation is

that his co -conspirators are persons unknown or persons not otherwise

amenable to justice.
 PLURALITY OF MINDS (cont.)

 Husband and wife are treated as one person under English law See R v Mawji

[1957] AC 126 and so cannot conspire under English law. See Criminal Law Act

(1977) S. 2

 If husband and wife together with other persons, all of them can be convicted of

criminal conspiracy. See Shaw v DPP [1962] AC 220.

 The situation is different under Ghanaian law husband and wife can conspire

because the Act makes reference generally to ‘two or more persons’.

 AGREEMENT

 The agreement is the actus reus of the offence of conspiracy.

 The minds must be ad idem.

 In the Azametsi v The Republic [1974] 1 GLR 228 CA, the agreement

was referable to a particular time and place.

 In State v Otchere ors [1963] 2 GLR 463 several meetings were held by

the parties in Ghana and Togo.

 CONSPIRACY AND JURISDICTION

 Being an inchoate offence, conspiracy can be committed in respect of any

substantive offence. The court that has jurisdiction to try the substantive offence

also has the jurisdiction to try the inchoate offence. - Section 24 (2).

 See Republic v Military Tribunal Ex parte Ofosu Amaah (No.2) [1973] 2

GLR 445.
 PUNISHMENT FOR CONSPIRACY

 The punishment for a conspiracy to commit an offence is the same as for the

substantive offence, if the offence is actually committed.

 Where the offence is not committed, the punishment is the same as if the person

had abetted offence. See sec 24 (1) of Act 29.

 ABETMENT

 Sometimes, a person may be solely responsible for the commission of a crime

but at times, more than one person may be guilty of complicity in the crime.

 The crime of abetment is committed when a person renders assistance to

another for the purpose of committing a crime.

 ABETMENT

 Two categories of actors

 Principal and

 Accessory

 The principal is the one who committed the actus reus of the offence.

 All persons associated with the commission of an offence and who share the

same mental state are accessories to the crime, or accomplices to the

 ABETMENT UNDER COMMON LAW
 The English law recognises four (4) parties to a crime:
 A principal in the first degree is the person who actually commits the offence either by his
own act or omission or through the agency of an innocent party.
 A principal in the second degree aids and abets the actual offender. He is present to ensure
that the actual offender accomplishes the criminal purpose.
 An accessory before the fact instigates, procures or incites the actual offender to commit the
crime, while he is absent.
 An accessory after the fact assists the criminal after the commission of the crime like a
person who harbours a criminal under our law.
 ABETMENT UNDER ACT 29

 Ghanaian law of abetment is a fusion of accessories before the fact an principals in the

second degree by classifying all of them together as abettors.

 Under Act 29 the category of accessory after the fact has been abolished.

 there is no accessorial liability where an act of assistance is done after the crime has

been completed. See COP v Sarpey Nyamekye [1962] GLR 756 SC.

 Note that a person who becomes involved after the offence has been committed may be

guilty of other offences under Act 29 but not abetment E.g. Harbouring a criminal,

dishonestly receiving etc.

 ABETMENT UNDER ACT 29 (cont.)

 Section 20 (1) of Act 29 provides the definition of an abettor.

 There is a long list of acts that could render one an accessory to a Crime.

 Once a person shares the mens rea of the offence, “no act is harmless if done

to further the object of the criminal enterprise”

 ABETMENT UNDER ACT 29 (cont.)
Some acts that may render a person culpable of abetment are: To
 instigate
 Command
 Counsel
 Procure
 Aid
 Encourage
 Facilitate
 Promote
 CONSEQUENCES OF ABETMENT

 If a crime is committed in pursuance or during the continuance of the

abetment, the abettor is guilty of the crime.

See

Section 20 (2) of Act 29

R v Dunnington [1984] 1 All ER 676

R v Creamer [1966] 1 QB 72
 PUNISHMENT FOR ABETMENT

 Punishment – S. 20 (3)(a)&(b)

 Life imprisonment if crime is punishable by death.

 In any other case punishment is the same as the substantive offence.

 An abettor may be tried before, with, or after a person abetted, and although the

person abetted is dead or is otherwise not amenable to justice.

 Iddi v The Republic [1980 ] GLR 623

 See: Sections 20 (5), (6), (7).

 LIABILITY FOR JOINT ENTERPRISE

 An abettor is answerable for acts done in pursuance to the joint enterprise

including acts incidental to the achievement of the joint enterprise.

 See: section 21 1 of Act 29

 Teye alias Bardjo ors v the Republic [1974] 2 GLR 438 CA.
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