Inchoate Offences

Week 9
Samuel Kofi Nartey

1
Introduction
• ‘Inchoate’ literally means ‘at an early stage’, ‘incomplete’ or ‘undeveloped’.
• Inchoate offences are designed to allow for liability to be imposed on those who have
taken some steps towards the commission of an offence (whether the crime would
have been committed by them personally or by someone else).
• It allows the law enforcement agencies to intervene at an early stage and make arrests
before a substantive crime has occurred, thus making a significant contribution
towards public safety.
• Sometimes, it is difficult to determine at which point the accused has committed an
inchoate offence, especially in a democracy, where freedom of speech is guaranteed.
• The criminal law has to strike the appropriate balance between the individual’s right
to free speech and society’s interest in ensuring that those who make agreements with
or encourage others to commit crimes are punished.
• Where no substantive offence has been committed, obtaining sufficient evidence that
an attempt or a conspiracy has actually occurred can be difficult.
2
Introduction
• Inchoate offences refers to those offences where person has not actually committed a
‘substantive’ crime, such as murder, rape, stealing or robbery, but has done one of the
following three things:
ØMade an attempt to do so(i.e. the person has tried to commit the crime but has
failed, for some reason, to complete it);
Øentered into a conspiracy with at least one other person to do so (i.e. the person
has entered into an agreement that a criminal offence will be committed);
Øassisted or encouraged someone else to commit a crime.
Østarted preparation towards the commission of a crime.
• They are inchoate because the accused person may not have performed the actus
reus elements with the requisite mens rea?
• Although we need both mens rea and actus reus, criminal liability does not depend upon
the completion of the full offence. A person who encourages or assists, conspires, or
attempts to commit an offence can be held criminally liable under the principle
of inchoate liability.
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Attempt
• A person may be guilty of attempting to commit a particular offence where he
does not complete the full offence, but has taken sufficient steps for his conduct to
be classed as criminal by law.
• Section 18, of Act 29 provides: “A person who attempts to commit a criminal
offence shall not be acquitted on the ground that the criminal offence could not be
committed according to the intent:
(a) by reason of the imperfection or other condition of the means, or
(b) by reason of the circumstances under which they are used, or
(c) by reason of the circumstances affecting the person against whom, or the
thing in respect of which the crime is intended to be committed or
(d) by reason of the absence of that person or thing.
• The accused is being punished because he has formed the requisite mens rea and his
act would have occasioned a crime but for any of the factors above.
• See illustrations in section 18
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Attempt
• A person may be guilty of attempting to commit a particular offence where he
does not complete the full offence, but has taken sufficient steps for his conduct to
be classified as criminal by the law.
• The mens rea of an attempt requires an intention to commit the full offence or a
substantive offence.
• The accused must intend the act which constitutes more than preparatory steps
and he must intend all of the elements of the full offence – R v Pace [2014]
EWCA Crim 186. For example, the mens rea for attempt to cause harm is an
intention to commit harm; and the mens rea for attempted murder is an intention to
kill.
• In R v Whybrow (1951) 35 Cr App R 141, the accused connected the soap
dish in the bathroom to the mains so that his wife suffered an electric shock whilst
in the bath. He was charged with the attempted murder of his wife. The court
held that the mens rea for this offence was an intention to kill, and an intention to
merely cause harm would not be sufficient.
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Attempt
• In Dua v. State [1963] 2 GLR 385, in a fight on new year’s eve, the appellant
fought with his wife over some money and told her wife he would kill her whether
or not he got the money. He attacked her with a knife, wounding her seriously.
During summing up, the trial judge’s direction to assessors was that in attempted
murder, the prosecution needed to prove all the elements of murder except death.
The prosecution will only have to prove that the victim nearly died. On appeal, the
judge’s direction to the jury was held to be bad. The court held that the
principal ingredient of the offence of attempted murder is the intent
to kill. This is because harm is not always a necessary ingredient in the offence of
attempted murder. Harm is only evidence of an intention to kill, for where there
is evidence of what the accused actually did and the degree of force used by him
the jury are entitled to presume, unless there is evidence to the contrary, that the
accused intended the consequences that would naturally follow from the exercise
of the degree of force proved by the prosecution.

6
Attempt
• There are instances where the facts suggest that the accused can be charged with
attempt to commit two offences under different provisions. Since the elements for
the substantive offence are different, a failure of the prosecution to successfully
prosecute the accused in one offence will not necessarily imply the conviction of
the accused in another attempted offence.
• “where the prosecution had a choice in laying a charge against an accused person
and chose to proceed under a particular one, they could not succeed if the
evidence led did not support the one chosen”. – R v. Darko [1971] 2 GLR 227
• This is because the mens rea required for the two attempted offences may be
different. The mens rea to support a charge of attempted murder is an intent to
cause unlawful harm which results in death. Whilst for causing harm, the attempt
must aim at causing unlawful harm only.
• Consider sections 153 and 154 of Act 30

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Attempt
• The Actus Reus requires that the accused must have taken an irrevocable step
toward the commission of the offence i.e. a point of no return for the
accused in the commission of the crime.
• The accused has the actus reus of an attempt if he takes steps that are more than
merely preparatory towards the commission of an offence – State v Obeng &
Ors [1967] GLR 91
• In DPP v Stonehouse [1978] AC 55, the House of Lords applied the ‘last act’
test. Under this test, the accused will have committed an attempt if he has
performed the last act required of him for the commission of the substantive
offence. Lord Diplock stated that ‘the offender must have crossed the
Rubicon and burnt his boats’.
• In R v Campbell (1991) 93 Cr App R 350, Watkins LJ stated that “it would
be unwise of a court to lay down hard and fast rules as to when, in
varying circumstances, an attempt has begun. The matter has to be
decided on a case by case basis as the issue arises”.
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Attempt
• In Obeng, the respondents gave letters to a prison officer to be given to someone
outside the prison. Before, the officer could leave his post, he was summoned, and
the letters were found on him. The accused was charged with attempting to
smuggle the said letter out of prison. It was held that acts amounting
merely to preparation had to be distinguished from those amounting
to attempt. The essence of the offence of attempt to smuggle things
out of prison was the conveyance out of prison and for the offence to
be constituted it did not really matter whether the thing conveyed was
obtained from a prisoner or not. An attempt to convey the letter out of
prison would have been constituted as soon as officer while carrying
the letters made a move towards the exit of the prison and it would
not have mattered the slightest whether this was before or after his
closing time.
• See also R v. Odo (1938) 4 WACA 71 , R v Gullefer [1990] 1 WLR 1063

9
Attempt
• In R v Jones [1990] 1 WLR 1057, the accused was married but had a girlfriend with
whom he had an affair. She ended her connection with the accused and began seeing
another man. Angered by this, the accused went in search of his mistress's new lover
(the victim) carrying a shotgun. The victim drove his child to school. The accused went
into the rear seat as soon as the daughter got out of the vehicle. He was donning a crash
helmet and overalls. The accused instructed the victim to drive to a specific area, and
when the vehicle came to a halt, he loaded the shotgun, brought it out, aimed it at the
victim, and stated, "You are not going to like this.” There was struggle and the victim's
neck was bound with a piece of cord by the accused. However, the victim was able to
flee. The court of appeal in affirming the decision of the trial court held “that when
determining whether a charge of attempted murder should be withdrawn from the jury
the trial judge had to decide whether there was evidence from which a reasonable jury,
properly directed, could conclude that the appellant had done acts which were more
than preparatory to the offence of murder and that evidence that the appellant
had got into the victim's car, had taken out a loaded gun and had pointed it
at the victim with the intention of killing him, was sufficient for the charge
of attempted murder to have been properly left to the jury”
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Attempt
• From Obeng, we also deduce the following:
ØWhere the accused voluntarily abandons the venture (criminal act), any test based
on the last act dependent on himself breaks down the attempt. i.e. voluntary
acceptance. This is however, inconsistent with the illustration 1 in section 18.
ØWhere the accused has done everything dependent upon himself and the
commission of the full offence is frustrated by some intervention beyond his
control, the act must amount to an attempt.
ØActs remotely leading towards the commission of the offence are not to be
considered as attempts to commit it; but acts immediately connected with it are.
• The prosecution must therefore prove the following elements for Attempt:
Øintent to commit a crime.
Øovert act that constitutes a substantial step toward committing the crime and
Øfailure to complete the crime
• However, even if a person believes he is committing an offence but what he attempt is
not an offence, then even though he believes that what he is doing is a crime, what he
is actually doing is not illegal. See R v Taaffe [1984] AC 539 11
Attempt
• Impossibility is no defence to an attempt. An accused will be guilty of an attempted
offence, even where commission of the full substantive offence was impossible. This
applies whether the impossibility is due to inadequate means, factual impossibility, or
legal impossibility.
• In R v Shivpuri [1987] AC 1, the appellant was convicted for attempting to import
substances suspected to be heroine. Evidence from the prosecution was that at several
police interviews he admitted having drugs and under caution he typed his own
confession statement and stated that he thought the package contained drugs. In a later
interview he stated that he very deeply suspected that the substance was heroin. Analysis
proved it to be merely vegetable material akin to snuff. He later denied making any
admissions about drugs and denied that the typed statement amounted to a confession
because from testing the substance he knew that it was not drugs. He was found guilty
on both counts. On appeal, it was held that the actus reus of the statutory
offence of attempt required an act which was more than merely
preparatory to the commission of an offence and which the accused did
with the intention of committing an offence, notwithstanding that the
commission of the actual offence was, on the true facts impossible. 12
Attempt
• “What turns what would otherwise, from the point of view of the criminal law, be an
innocent act into a crime is the intent of the actor to commit an offence” – Lord Bridge.
• Do you think there has been an attempt in the following scenarios:
ØSaddick approaches the back door of a house he intends to steal. As he takes
hold of the door handle, the lights go on inside the house and Saddick escapes.
ØMarian arms herself with a gun and enters a bank, intending to commit
robbery. The police arrest him before she approaches a cashier.
ØIntending to kill Tetteh, Adjoa places arsenic in a cup of tea which she then
hands to him. However, before Tetteh can drink the tea, Irene takes the cup
away.
ØMary goes to meet Afia and takes a gun with her, intending to kill Afia. As
Mary takes the gun out of her bag and raises it, Afia runs away and escapes.
• Also, where the mens rea is embedded in the actus reus, then it may be impossible to
charge an accused for attempt to commit the substantive offence. See. Section 151
– Extortion and also Illiasu v. R [1968] GLR 742 13
Attempt
• A person convicted of an attempt is liable to be punished to the same degree as if
he committed the substantive crime – section 18(2).
• A person under imprisonment for 3 years or more who attempts to commit
murder is liable to life imprisonment – section 2, Criminal Offences
(Amendment) Act 2023 (Act 1101).
• “where an act amounts to a complete criminal offence, as defined by the provisions
of this Act, and is also an attempt to commit any other criminal offence, a person
who does the act commits a criminal offence and is liable to be convicted and
punished under either provision or under this section” – section 18(3), see R v
Darko again, the issue had to to do with his confession.
• Any defence available in respect of the substantive offence is also open to the
accused. – Section 18(4)

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Attempt
• Act 29 also provided for some substantive offences of Attempt.
ØAttempt to commit murder under section 48 is a first degree felony i.e. life
imprisonment.
ØAttempt to commit murder by a convict under section 49 is punishable by life
imprisonment – section 2, Criminal Offences (Amendment) Act 2023
(Act 1101).
ØAttempted suicide under section 57(2) which used to be a misdemeanour has
been repealed by the Criminal Offences (Amendment) Act 2023 (Act 1092).

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Preparation
• At common law, mere preparatory acts to commit a crime is not punishable. The
common law was concerned with Attempt rather than Preparation because the act
complained of must be proximate to the actus reus of the offence in question.
• Section 19, however, criminalises preparatory acts in Ghana.
• “A person who prepares or supplies, or has in his possession, custody, or control, or
in the possession, custody or control of any other person on behalf of that person,
any instruments, materials, or means, with the intent that the instruments,
materials, or means, may be used by that person, or by any other person, in
committing any crime by which life is likely to be endangered, or a forgery,
or a felony, commits a criminal offence and is liable to punishment in like
manner as if that person had attempted to commit that crime”.
• Preparation and Attempt are similar, but they are not the same.
• Note the offences set out in section 19 that a person can prepare to commit. Not
all offences are subject of preparation.
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Preparation
• The prosecution must therefore prove the following:
ØThe accused person prepares or supplies, or has in his possession, custody, or
control, or in the possession, custody or control of any other person on behalf
of that person, any instruments, materials, or means;
ØThe accused person intends to use the instruments, materials, or means to be
used either by himself, or by any other person, in committing a crime; and
ØThe crime must be one that is likely to endanger life, or a forgery, or a felony.
• Mens Rea here is important as mere possession of such materials does not occasion
the offence of preparation.
• The punishment of preparation and attempt are the same.
• Preparation is a crucial element in the offence of Treason Felony. See Section 182.

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Abetment
• At common law it was an offence to ‘incite’ someone to commit any offence. This
was committed if a person encouraged or persuaded someone else to commit an
offence, whether or not that offence actually took place.
• Abetment occurs where the commission of a crime involves the active or passive
participation of a number of persons, in support of the person who actually
commits the offence.
• These persons can be held liable in proportion to and to the extent of their
individual contributions to the commission of the criminal offence.
• Thus, in Abetment we have two parties: Principal and Accessory.
• The Principal is the person who commits the crime or whose acts and omissions
occasions the crime. Also, called the principal in the first degree.
• The Accessory is person who aids or contributes in the commission or
concealment of a crime.
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Abetment
• We also have a principal in the second degree or accessory at the fact i.e.
the person who helped the perpetrator at the time of the crime.
• Accessory After The Fact an accessory who was not at the scene of the crime
but knows that a crime has been committed and who helps the offender try to
escape arrest or punishment.
• Accessory Before The Fact an accessory who assists or encourages another to
commit a crime but who is not present when the offense is actually committed.
• In Ghana we do not have these distinctions. All we have is Principal and Abettor.
• Accessory After the Fact is provided for under section 25 of Act 29, as the offence
of Harbouring Criminal.
• Abetment is provided under sections 20 and 21

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Abetment
• Section 20(1) of Act 29, “A person who, directly or indirectly, instigates,
commands, counsels, procures, solicits, or in any manner purposely aids, facilitates,
encourages, or promotes, whether by a personal act or presence or otherwise, and
a person who does any act for the purpose of aiding, facilitating, encouraging or
promoting the commission of a criminal offence by any other person, whether
known or unknown, certain or uncertain, is guilty of abetting the other person in
respect of that criminal offence.”
• The actus reus required for the commission of abetment is that the accused does
an act capable of any of the verbs set out in section 20(1) i.e. instigate, command,
counsel, procure, encouraging or assisting the commission of a criminal offence.
• An act constituting abetment of a crime must precede it or must be done at the
very time when the offence is committed. Abetment must be contemporaneous in
place, time and circumstance with the commission of the offence – COP v
Sarpey & Anor [1961] GLR 756
• See the illustrations under Section 20.
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Abetment
• Under section 20(1), the mens rea is an intention to encourage or assist the
commission of the offence. It is sufficient to show that the accused intended to
instigate, solicit, encourage, assist, etc. the doing of an act which would amount to
the commission of an offence.
• It does not matter that the accused did not know that he was instigating,
encouraging, soliciting, assisting, etc. an offence or that he did not intend the
criminal offence which results.
• The abettor must be abetting a crime. Where the act being abetted is not a crime,
the abettor cannot be convicted.
• See R v. Jacob K. Mensah [1959] GLR 314 – “the offence of aiding and
abetting implies the commission, by one person, of a substantive
offence, and another person aiding and abetting the principal
offender in the commission of that substantive offence. Therefore a
person cannot be convicted of aiding and abetting where no
substantive crime is proved to have been committed”.
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Abetment
• Where the abettor, is abetting an involuntary agent, then the provisions of section
13(1) will apply. Under section 20(4) of Act 29 – “A person may be tried
before, with or after a person abetted, and although the person
abetted is dead or is otherwise not amenable to justice.”
• To Instigate means to goad into action, or "to bring about", as by incitement or
urging . . . on to some drastic and unadvisable action”. Incitement is thus a central
idea in “instigate”.
• To incite means to seek to influence another's mind in the direction of the
commission of a crime. An inciter “. . . is one who reaches and seeks to influence
the mind of another to the commission of a crime. The machinations of criminal
ingenuity being legion, the approach to the other's mind may take various forms
such as suggestion, proposal, request, exhortation, gesture, argument, persuasion,
inducement, goading or arousal of cupidity.” - R v Nkosiyana [1966] SAR 653

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Abetment
• To “Command” is more easily understood in terms of ordering an activity to be
carried out. In that situation, the offender is seen more as a tool than as a willing
participant. This is because implicit in the relationship of the commander and
commanded, is the presumption of the superior status of the former as against the
latter, as well as an obligation to obey.
• A "command" must therefore proceed from one with lawful authority otherwise the
act becomes one of “instigation.”
• See also section 65 – abetment of murder where the person giving a command
for the unlawful killing of another commits the same offence of manslaughter or
attempt to commit manslaughter.
• “Counsel” relates to the giving of advice. Advice given by another which enables an
offence to be committed would qualify as abetment even if it was the offender who
sought out the advisor.
• Unlike “instigation”, an offence of a particular nature must have been committed in
pursuance of that advice. As Parker LJ explains in R v Calhaem [1985] 2 All ER
266 – “The actual offence must have been committed . . . by the person counselled” 23
Abetment
• To Procure means “to produce by endeavour. You procure a thing by setting out to
see that it happens and taking appropriate steps to produce that happening” – per
Lord Widgery CJ in Attorney-General's Reference (No 1 of 1975) [1975] 2
All ER 684 @ 686. Thus, one who gives alcoholic drinks to another whom he
knows would be driving, abets the offence of driving under the influence of alcohol.
• It is not procuring if one’s exercise of a legal right becomes a platform or influences
another to commit a crime. Thus, one could not be guilty of procuring the
commission of an offence by embarking upon a course of conduct which was lawful,
even though it would induce an offence. See Republic v Tema District
Magistrate Grade I; Ex parte Akotiah [1979] GLR 315.
• “Solicit” could mean “to appeal for something”, “to ask for the purpose of
receiving”; or “to ask for something earnestly”. It also covers the tempting of a
person, or the luring of another into evil. See People v Rice 383 III 584, N E 2d
711@713 and In re Winthrop 135 Wash 234 @237.
• Therefore, any act done would constitute soliciting, if a person’s participation in a
crime is assured by another's importuning. 24
Abetment
• To “Aid” is to “help” another to commit an offence. See Thambiah v R [1966]
AC 37.
• In Thambiah, the appellant set about opening a bank account for his accomplice
under a different name and calling. The account was not opened. The appellant
again asked an old friend to help him in opening an account for someone, but who
in fact was the accomplice. The account was opened and the accomplice
subsequently presented a forged cheque for payment. Later, the appellant was
charged and convicted of aiding and abetting in the fraudulent use of a forged
cheque. The Privy Council held that it was immaterial that the cheque was
not in existence when the account was opened, for a man who helped
another in the preparations for crimes of a certain nature with the
intention that the other should commit them might abet those crimes
when they were committed. The persistent fraudulent and successful efforts
of the appellant to open an account for his accomplice under a false name justified
an inference that it was intended to be used for realising forged cheques, which in
fact was used. 25
Abetment
• In National Coal Board v Gamble [1959] 1 QB 11, coal was put into a
vehicle as part of a bulk purchase from the National Coal Board. The vehicle was
discovered to be loaded over the maximum allowable weight. A Board employee at
the weighbridge advised the lorry's driver of the overweight and asked if he
intended to accept the load. The driver stated that he was willing to take the risk.
The weight ticket was written out by the servant and given to the driver, who drove
the vehicle away. The Board was later convicted of illegally utilizing the vehicle on
a road. It was held that that the crime of aiding and abetting was
committed on proof of a positive act of assistance voluntarily done,
and a knowledge of the circumstances constituting the offence, the
question of motive was irrelevant. A person who supplies the
instrument for a crime or anything essential to its commission aids in
the commission of it; and if he does so knowingly and with intent to
aid, he abets it as well and is therefore guilty of aiding and abetting. I
use the word “supplies” to comprehend giving, lending, selling or any
other transfer of the right of property.
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Abetment
• Mere presence at the scene and at the time of the commission of the offence does not
render a person guilty of abetment. There must be proof of positive acts taken towards
the realization or commission of the criminal offence. Yaw Azumah & Kwame
Kohodo v. The King (1950) 13 WACA 87
• Also, “presence” can be either physical or constructive, depending upon the nature of
the offence.
• “Encouraging” or offering encouragement to one committing an offence is a form of
abetment. A person may encourage by his/her silence or non-interference, or
intentionally by expressions, actions and other gestures intended to signify approval.
• In R v Blackshaw and others [2011] EWCA Crim 2312 the accused were
convicted for encouraging the commission of riot, burglary, and criminal damage.
Blackshaw had used Facebook to create a public event page entitled ‘Smash Down in
Northwick Town’. The event was to begin behind McDonald’s at 1pm the following day,
and he posted a message of encouragement: ‘we’ll need to get on this, kicking off all
over’. The other accused, used Facebook to create a page called ‘The Warrington Riots’
and he sent a message to 400 contacts on Facebook inviting them to meet him at a
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carvery in Warrington.
Abetment
• However, a merely curious spectator cannot be guilty of encouraging without the
intention to do so even if his or her presence has the effect of doing so. It is thus no
offence of abetment to stand by as a mere passive spectator of a crime, even of
murder.
• Whether a spectator is an accomplice or not will depend on the facts of the case.
• In R v Clarkson [1971] 3 All ER 344, the accused were charged with aiding and
abetting the conduct of three rapes. According to the evidence, the accused, who
had been drinking, heard signs that a lady was being raped in a room and entered
there and stayed while the crimes were perpetrated. There was no proof of the
accused person’s direct physical involvement or verbal encouragement, and probable
conclusions were that each defendant intended to and actively promoted the rapes.
The court in allowing the appeal, held that on a charge of abetting an offence
on the basis of continuing and non-accidental presence during its
commission, the prosecution had to establish that the accused not only
intended to encourage but also actually encouraged the offence.
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Abetment
• There are other occasions on which mere presence could render one an
accomplice. Where presence acts as an encouragement, that could be evidence of
complicity if the presence is non-accidental.
• “Non-interference to prevent a crime is not itself a crime. But the fact that a
person was voluntarily and purposely present witnessing the commission of a
crime, and offered no opposition to it, though he might reasonably be expected to
prevent and had the power so to do, or at least to express his dissent, might under
some circumstances, afford cogent evidence upon which a jury would be justified
in finding that he wilfully encouraged and so aided and abetted”.– R v Coney
(1882) 8 QBD 534 at 558.
• To “Facilitate” means to render assistance which makes the commission of the
offence easier for the perpetrator.
• Facilitation requires that a person must do more than remain passive.

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Abetment
• In Apetorgbor v Rep [1974] 1 GLR 347 the a woman who was a witness to a
murder but did not report it was held not to be an accomplice. She heard the
shouts of the deceased who lived in the same house. When she opened her door
she saw the four appellants two of them by the head and two by the feet of the
deceased who was lying on the veranda in front of his bedroom. She later saw
them carry away the body of the deceased. She was warned by the first and
second appellants to deny seeing or hearing anything that transpired that
night. She, accordingly, did not report the incident to the police. The court held
that the she was not an accomplice because of the complete lack of
evidence that she was a particeps criminis. The mere fact that the
police suspected her and kept her in the cells was not relevant. She
was a curious spectator who was warned off the scene and ordered to
seal her mouth. She did not take part in attacking the deceased nor
did she assist in removing the body from the house. The fact that she
broke her silence later in the police cells could not incriminate her.
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Abetment
• To “promote” goes beyond mere assistance to activities that actually ensure that
the commission of the offence would be undertaken.
• Brown v Classification Review Board (1998) 5 BHRC 619 – “the phrase
'promote, incite or instruct' is a collocation of overlapping meanings. According to
the Shorter Oxford English Dictionary, to promote is to further the growth,
development, progress or establishment of (anything); to further advance,
encourage”.
• In Brown, a student publication with the title “The Art of Shoplifting’ was
censored because it went beyond the mere provision of information about crime.
The theme and tone of the article was found to be instructional and hortatory.
Also, various imperative language used in the article and the fact that its layout
conveyed an appearance of instruction .
• The person who engages in the traditional act of throwing a challenge to an
opponent by holding out his hand and asking the contestants to signify their
acceptance of the challenge would be the promoter of an unlawful fight.
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Abetment
• An abettor can be tried with principal or alone whether or not the principal is
known or punishable – Section 20(4)
• An abettor may be tried with other abettors even if they didn’t abet each other,
provided they abetted the same offence. – Section 20(5).
• If the crime is committed the abettor is punishable as the culprit except if it is an
offence punishable by death abettor in which case the abettor gets life sentence –
section 20(3)
• The fact that the principal was acquitted doesn’t entitle the abettor to automatic
acquittal, unless principal’s acquittal was for non-commission.– Iddi v R [1980]
GLR 263
• Defences such as provocation, justifiable use of force, or other exemptions,
justifications, etc. are available to abettor even if they are not open to principal –
section 20(6).

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Abetment
• Also, a countermand may be available defence for an accessory before the fact.
However, where the accused is alleged to have counselled the commission of an
offence, it is likely that the principal would be difficult to dissuade once the
criminal possibilities have been exposed to him or her. See R v Croft [1951] 1
KB 814
• If principal commits a crime other than one than the abettor intended to abet, the
abettor will not be liable if the principal’s ultra vires act is not incidental to or
foreseeable consequence of the abetted crime– Section 21(1)(a).
• Teye v R [1974] 2 GLR 468, Agyeman @Geeman & Nyame @ Jagger
Pee v. R Unreported
• However, where it is established that the crime actually committed was the
probable consequence of the endeavour or substantially the same as the criminal
offence that the abettor intended to abet, he shall be deemed to have committed
the crime which was actually committed and shall be punished accordingly. – See
section 21(1)(b)
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Abetment
• An abettor of an unlawful assembly/ riot , if he knew that violence is intended or
likely is an abettor of any harm caused in furtherance of the common purpose,
whether or not he approved of that type, degree or victim. – section 21(2)

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Conspiracy
• A conspiracy is an agreement to commit a criminal offence. The offence takes
place as soon as the parties enter into an agreement with the requisite mens rea.
• It does not matter whether the agreement is actually acted upon. For example, the
accused is guilty of conspiracy to steal, irrespective of whether any of the
conspirators actually do steal any property.
• Gathering enough evidence to establish that the individuals agreed to commit a
crime can be difficult for law enforcement agencies, but if evidence is available,
conspiracy is a powerful tool for prosecuting people involved in criminal acts.
• Section 23(1) of Act 29 provides: 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.

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Conspiracy
• In Ghana, conspiracy involves any of the following:
Øagreement by two or more persons to commit a crime,
Øagreement by two or more persons to abet a crime,
Øtwo or more persons acting together to commit a crime; and
Øtwo or more persons acting together to abet the commission of a crime
• The Actus Reus for conspiracy involves Agreement.
• It is not punishable to have criminal intents in one's head. Neither is it punishable
if one reveals his unlawful intentions to another without further action.
• The prosecution must prove that the accused agreed, with at least one other
person, to pursue a course of conduct which amounts to a criminal offence. The
Mens Rea required is an intention to commit a crime.
• The offence of conspiracy will be crystallised immediately, the criminal intention is
communicated to another person, and the other person agrees to go along with
the criminal intentions. 36
Conspiracy
• It does not matter that neither parties took further steps to act on the offence
agreed on. What the law is punishing is criminal agreement of two or more minds.
• The prosecution must therefore prove the following elements:
Øthere was an agreement to commit an unlawful act which amounts to a crime
Øbetween two or more persons;
ØThe that unlawful act as manifested in their common pursuit
• Frimpong v The Republic [2012] 1 SCGLR 297 @ 312
• Proof of prior agreement to act together with a common purpose is now a new
and necessary ingredient that must be proved by the prosecution, failing which the
charge must fail – Kpebu (No. 3) v AG [2015 – 2016] 1 SCGLR 511 @ 530
• Old Rendition: 23 (1) “If two or more persons agree OR act together with a common purpose
for or in committing or abetting a crime, whether with or without any previous concert or
deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may
be’’.
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Conspiracy
• Remix: “If two or more persons agree TO act together with a common purpose for or in
committing or abetting a crime, whether with or without any previous concert or deliberation, each
of them is guilty of conspiracy to commit or abet the criminal offence.”
• “The prosecution must establish that the accused persons agreed to act with a
common purpose for or committing or abetting a crime. Conspiracy under the
new Criminal Offences Act therefore requires proof of prior agreement”. Rep v
Augustina Abu & Ors.[2009]DLHC4806.
• An individual cannot be guilty of the offence of conspiracy because he cannot
agree with himself to act together with a common purpose. Also a person cannot
conspire with a non-person Blay v. R [1968] GLR 1040
• The co-conspirators must agree to commit the same offence; there is no
conspiracy where the parties, at cross-purposes, agree to commit different offences
– R v Taylor (Robert John) [2001] EWCA Crim1044.

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Conspiracy
• “The essence of a conspiracy was the agreement. A conspiracy to import heroin
could not be proved by an agreement to import cannabis. The prosecution had to
prove an intention to import the drug itself.” – R v Siracusa (Francesco)
(1990) 90 Cr. App. R. 340, [1989] 5 WLUK 333.
• That is, a person cannot unintentionally become involved in a conspiracy without
being aware of its existence.
• As a result, simply knowing about the plot or listening in on a conversation of a
criminal expedition does not make one liable for conspiracy.
• In COP v. Afari [1962] 1 GLR 483, the held that the fact of agreement may be
proved by evidence of subsequent acts, done in concert, and so indicating a
previous agreement.
• Conspiracy may be inferred from the acts of the parties – Azametsi & ors v.
The Republic [1974] 1 GLR 228

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Conspiracy
• “Conspiracy imports an agreement to commit a crime, and where there is no
direct evidence of any such agreement, as indeed there was not in this case, the
circumstances establishing facts from which the conspiracy is to be inferred must
lead uniquely to an inference of the existence of an agreement, that is to nothing
else. If the circumstances merely lead to suspicion that there might have been such
an agreement the charge of conspiracy is not proved’’ - Lartey v Republic
[1968] GLR 986 @ 989
• When three persons are charged with the offence of conspiracy and two are
acquitted except one, that one should also be acquitted unless it is charged and
proved that he conspired with others not named in the charge. See Republic v.
Bossman [1968] GLR 595
• Agreement does not mean that the conspirators should know one another, or be in
direct communication. Persons who have never met before could be parties to the
same offence where the objects of the conspiracy, or the resources required for
accomplishing the objects, are such that they know, expressly or constructively, that
other people are involved. 40
Conspiracy
• Can a person conspire with an agent agent provocateur?
• There is a unilateral and bilateral approach on the requirement for the agreement
of two minds.
• Bilateral approach requires that there be two minds because the gist of the offence
of the offence lies in the agreement. Therefore, where there has been no 'meeting
of minds', there is no reason to punish the individual.
• Unilateral approach posits that there must be agreement between two minds for a
person to be culpable. There is no need for genuine agreement. Thus, each person
must be responsible for their own actions.
• Agreement need not necessarily be prior to the offence, the conspirators can join
at various times – Chain Conspiracy vs. Wheel Conspiracy.
• In Chain Conspiracy the conspirators are connected together like in a chain link
where all of the persons are participating in one conspiracy and are united by a
shared aim, despite being recruited at different periods or locations.
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Conspiracy
• Participants in chain conspiracies are deemed to be aware of the objects of the
conspiracy. E.g. Conspiracy to export smuggled goods where the conspirator
should know or must know the various actors at each end of the transaction.
• In Wheel Conspiracy, the evidence establishes a series of plots whose only
connection is an individual who provides a common link. They do not know each
other, and the acts revolve around one person.
• Each part in a wheel conspiracy is severable from the other parts to form different
counts.
• See State v. Otchere [1963] 2 GLR 463.
• The fact that a co-conspirator is in another jurisdiction is irrelevant to find
culpability. The accused would be liable if the act agreed to is a crime in Ghana,
and even if the crime was not meant to be committed in Ghana. Section 23(2)
and 23(3)

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Conspiracy
• It is possible to charge an accused person with Conspiracy and the substantive
offence, if the facts support same since both are different offences – COP. v.
Dimbie [1959] GLR 202 @ 204
• All participants in a conspiracy are presumed to have approved all activities taken
as a result of the conspiracy. i.e. agent of each other. State v Yao Boahene
[1963] 2 GLR 554
• A person charged with conspiracy is liable to be punished for the substantive
offense where the offence is actually committed.
• Where the substantive offence is not committed, the accused is liable to be
punished as if he abetted the commission of the offence – Section 24(1)
• What is the effect?

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Thank You

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