Inchoate offences are offences which basically are incomplete offences. It is twofold:
a. a person sets out to commit an offence but is unable to complete it. Also, it describes offences which precede the commission of the substantive offence.
b. a person does the act constituting the offence but the results are not achieved. Eg. A person who sets out to commit suicide or to kill a person but that person survives the gun shot or lethal strike from the knife.
There are 4 types of inchoate offences known under our criminal jurisprudence, namely:
⦁ conspiracy
⦁ abetment
⦁ attempt
⦁ preparation
Though, we also have crimes that may be termed as double inchoate offences – e.g.
• conspiracy to abet
• abetment of a conspiracy
• abetment of attempt
CONSPIRACY
Conspiracy is in four kinds
⦁ An agreement between two to commit a crime
⦁ An agreement to abet a crime
⦁ Two or more acting together to commit a crime
⦁ Two or more acting to abet the commission of a crime.
The main determinant of conspiracy is the element of an agreement to commit a crime. Mere harboring of criminal intentions or communication of such intentions will not suffice. However, if you communicate your criminal intentions to another – and you suggest to the other that you desire to carry your intention to fruition, and that other agrees to go along with your designs to commit the crime, the agreement itself is criminal even if neither of you has lifted a finger or never lifts a finger in furtherance of the agreement
Conspiracy is treated under sections 23 and 24 of Act 29. from this, the main elements of conspiracy are:
⦁ Plurality of minds i.e. two or more persons
⦁ Agreeing to act together with a common purpose.
⦁ Acting together for a common unlawful purpose.
⦁ Plurality of Minds: From the wording of section 23(1), there must be at least two conspirators for the charge to suffice. That is, the offence of conspiracy contemplates the involvement of at least two persons since a person cannot agree with himself. A man can even conspire with his wife.
A person can only be held for conspiracy if he conspires with another person – that is to say, the other party to the agreement must be a person. Thus, a charge of conspiracy will not hold if the other party to the supposed agreement is alleged to be a non-person, say a spirit. BLAY v THE REPUBLIC. Person here do not denote only natural persons.
Since one person cannot be guilty of conspiracy, on a charge of conspiracy, if all the accused are acquitted except one, that one must also acquitted, unless it is proved that he conspired with some other person not named in the charge or at large. REPUBLIC v BOSSMAN.
In contrast where the co-conspirators are tried separately the acquittal of one does not necessarily imply the other is innocent of the conspiracy. This is because the circumstances pertaining to each trial may differ. DOE v THE REPUBLIC
COULD A COMPANY OR CORPORATE PERSON BE A PART OF A CONSPIRACY?
Reference to a company implies the mind directing the affairs of the company.
An accused person can be convicted for conspiracy if his co-conspirator is acquitted if it is shown that he had conspired with persons unknown. r v. Anthony
The mens rea for conspiracy is an intention to agree. That is an intentional conduct evidencing an agreement. The actus reus is the actually agreement. To determine if there is conspiracy the courts looks not only at the agreement but also the acts of the accused. That is, it is difficult to determine conspiracy by the looking back at agreement but the subsequent acts of the accused are relevant to the establishment of the charge.
⦁ Agreement: For there to be a conspiracy there must be an agreement between two or more. The merely listening to a person’s criminal intent without assenting to it does not make one a conspirator. The person must agree, which is an intentional conduct. This could be inferred from the settings as to where the meeting was held or the subsequent acts of the accused.
Chain conspiracy is when there are two or more people involved in the same conspiracy acting to a common purpose. They are all liable for the acts of each other in furtherance of this common purpose. STATE v OTCHERE. The general rule is that in a chain conspiracy the participants are liable for the whole and not just the part they played
Wheel conspiracy, there is a common conspirator for two or more persons. That conspirator could be described as the center or fulcrum of the conspiracy
COMMISSIONER OF POLICE v AFARI
The appellants were charged and convicted for conspiracy to defraud by false pretense. On appeal at the SC. The counsel for the appellant argued that there was no evidence of prior agreement but the evidence of the conspiracy was that of the substantive crime. Moreover, since the evidence led was that of the substantive crime it was bad in law to convict them for conspiracy.
Held: the Ghanaian law of conspiracy is wider than the English law of conspiracy. Thus, it covers also acting with a common purpose in a concerted manner. From the evidence of subsequent acts of the appellant it could be deduced that there was a previous agreement to defraud the complainant of his money. Hence, the conviction for conspiracy was good in law.
AZAMETSI v THE REPUBLIC
The appellants were convicted for the conspiring to murder and the murder of another fisherman in furtherance of their annual ritual for a bumper harvest. The first appellant appeals against the conspiracy in that he did not agree to the murder, he merely stood by and witnessed it in his house.
Held: The crime of conspiracy consisted in an agreement or acting together by two or more persons with a common purpose for or in committing or abetting a crime whether with or without any previous concert or deliberation. It was not always easy to prove agreement by evidence, but it could be inferred from the conduct of and statements made by the accused persons. In the present case if the evidence of the first appellant’s wife that the first appellant was present during the killing of the deceased and later procured other persons to dump the dead body in the sea was accepted then the presence of the first appellant in the bathroom where the killing took place, could not be accidental but was in furtherance of the common purpose.
KAMBEY v THE REPUBLIC
The appellants set out to harvest dawadawa fruits from a farm. At the farm their right to harvest fruits from the farm was challenged by with an arrow. They were convicted for murder and conspiring to kill.
Held: there was no evidence to show that it was those people who caused the deaths. Nor was there evidence that they had set out to harvest the fruits armed with arrows and bows. Therefore they could not be liable for having executed a common enterprise. Appeal allowed.
Comment: here the appellant did not set out to act with the common purpose of killing. They set out to harvest fruits. Moreover, the prosecution failed to establish that either of the accused carried the bow and the arrow or shot the deceased persons.
STATE v BOAHENE.
The accused were charged with conspiracy contrary to section 23(1) of act 29 to acquire a printer to print Ghanaian currency. A nolle prosequi was entered by the state. The ag initiated fresh proceedings in the court.
Held: the test was whether the parties had a common purpose and not whether they were acquainted with each other. Per sowah” Conspiracy consists not merely in the intention of two or more persons, but also in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. To constitute an indictable conspiracy there must be an agreement between the conspirators to do some common thing. Whether they had met each other or not, does not matter in the slightest degree so long as they are working for the same common object. They need not know whether a conspiracy was already in existence. The test is whether or not there was a community of design or a common purpose. In order to find out whether or not there is a common design the court must not only look at what the accused persons say in court or elsewhere, but also at what the overt acts are, that is to say, any act of conspiracy, conferring or consulting with, advising, persuading, counselling, commanding or inciting words can be an overt act.”
SCOPE OF LIABILITY
The general rule is that the acts of a co-conspirator in furtherance of the conspiracy are binding on the others. Thus, all persons engaged in a conspiracy are deemed to have approved all actions thereunder. This is the effect of sec 24(1) read together with sec 23(1), especially the phrase “whether without a previous concert or deliberation”.
For a conspirator to be held liable for the acts of a co-conspirator, the acts of the co-conspirator must be in furtherance of the conspiracy. It is not every act or declaration by a conspirator that will bind his co-conspirators. Therefore, where one of the participants takes a different course and goes beyond what has agreed upon or what was in the contemplation of the parties, he alone would be liable for those acts – the other participants will not be liable for his unauthorized acts or for acts that go beyond the scope the adventure. TEYE @ BARDJO v THE REPUBLIC, ALLAN WILLIAM HODGSON V. THE REP.
DEFENCES TO A CHARGE OF CONSPIRACY
There is no defence to a charge of conspiracy.
Therefore, a conspirator cannot countermand – countermand is to revoke, cancel or rescind a decision – the law holds the view that countermand only avails an accused with respect to offences to be committed in the future.
However, conspiracy is an offence that is committed the moment two or more people agree to act together or act together to commit or abet a crime, so even if you countermand, it is too late because the agreement has been reached before you countermanded – therefore, your liability was well grounded before you countermanded – thus, your countermand has no effect in law – you are still liable. Thus, though you may recant by changing your mind and abandoning the acts necessary in carrying out the proposed criminal venture, yet you cannot undo the act of your previous agreement, so you are still liable for the conspiracy. BOAHENE v THE REPUBLIC.
PUNISHMENT FOR CONSPIRACY
Conspiracy does not merge in the actual or substantive offence, so a conspirator is liable to be punished for the substantive offense where the offence is actually committed – and where the substantive offence is not committed, the conspirator is liable to be punished as if he abetted the commission of the offence – Section 24(1).
JURISDICTION
Ordinarily, jurisdiction in criminal matters is territorial – i.e. a court may only try an offence committed within the jurisdiction. However, where conspiracy is alleged, our law vests jurisdiction in our courts to try a conspirator where the person is within the jurisdiction and he agrees with another person who is outside the jurisdiction for the commission of or abetment of a crime in the jurisdiction or outside the jurisdiction. Section 23(2).
MENSA-BONSU. CONSPIRACY IN TWO COMMON LAW JURISDICTIONS- A COMPARATIVE ANALYSIS.
Conspiracy has been defined as the agreement between two or more to do an unlawful act or a lawful act in an unlawful manner. The essence of the offence of conspiracy is in the unlawful agreement and not whether or not the object of the agreement was lawful. The offence essentially is the agreement. It is irrelevant that the parties are unable to commit the offence or fail in its execution or abandon it.
Agreement has been said to exclude a man and wife, a man and a company which he is the sole controller, a person whose conspirator is a minor or has been acquitted of the charge. Hence, mere spectators are not conspirators. There must be a positive act for participation to be established Also the conspirator need not necessary know each other. What is essential is that they know that they are others involved to complete their criminal intent which is their common design. The test therefore is, “is it true that to say that the acts of the accused were done in pursuance of a criminal purpose held in common between them?”
The offence of conspiracy is that of intention and a positive act. The mens rea being the intention to agree and the positive act the promise made against another in furtherance of the criminal offence i.e. actus contra actum. A person need not be in the plot from the beginning to be a conspirator.
A person becomes a conspirator the moment he joins the plot. A person joins a conspiracy at his own peril. Essence of the offence of conspiracy is to discourage the persons from committing the offence and to protect the interest of society since the combination in a crime makes more likely the commission of crimes unrelated to the original purpose for which it was formed. Conspiracy in the two jurisdictions In Ghana law there are two ways liability arise; agreeing to commit the substantive offence or agreeing to commit an inchoate crime. Two limbs of liability; the agreement to act or acting together with a common purpose. Hence in Ghana, as soon as the words of agreement is spoken the offence is committed unlike the us which requires for an overt act. Here, the overt act merely substantiates the offence.
The SC held in cop v. afari & addo “ it is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime, this usually has to be proved by the evidence of subsequent acts done in concert and so indicating a previous agreement”.
Elements of the offence.
a. Agreement:
A man cannot conspire on his own thus for there to be an agreement there must first be two minds.
Hence in blay it was held that the agreement must be between two human beings. Hence, the courts refused to hold that there was a conspiracy when it was shown that the accused acted in concert with an alleged spirit. However, it must be noted that what the law requires is person be it natural or artificial. The issue of husband and wife as one mind.
In the us case of dege, the us SC held that a husband and wife could not be treated as one person. Why the common law principle of unified personality of a man and wife is not applicable in Ghana. In Ghana a married woman by culture maintains her personality separate from the husband. Also, there exists the polygynous marriage system. This system arise question to the principle equation that 1+1=1. The problem of plurality of minds in the business settings.
In r v. mcdonnell, it was held that there could not be plurality of minds’ if a man and the company of which he is the sole directing mind stood to be accused. This is because the legal fiction of an artificial personality is impossible to support the notion that there is more than one mind.
The rule of two minds calls for consistency. That’s the charged need to be against one if the other conspirators are acquitted. The caveat is that they must be tried together.
Security agency and their plant. The unilateral approach is that the accused is still liable for the conspiracy since he had the culpable mind.
CONCERT
The persons charged with conspiracy must be proved to have acted with a common design or concert. As Professor Williams puts it, “[a] conspiracy is not merely a concurrence of wills, but a concurrence resulting from an agreement. In due to complicity to be found acting together amounts to and is not merely evidence of conspiracy. The problem with the complicity is basically that the mens rea and actus reus is difficult to locate. If the mens rea is said to be the intention to act together why should there be liability if there is no evidence of such intent? If not then is it an offence of strict liability. One need not try to infer a ‘previous agreement’ from acts done in concert.
Guilt may be established either by proof of a previous agreement, or by acts done together even without any previous concert or deliberation. Overt act At Common Law, as under Ghana law, the offence of conspiracy is complete once the agreement has been reached. In contrast, in the us there is the requirement of an overt act. That is an act constituting the crime itself but representing the existence of such a conspiracy. Essence of the us overt act requirement : it is useful to be able to nip a crime in its bud, the law must be able to distinguish between those engaged in idle speculation, and those who intend to implement their plans. Mental element. Conspiracy is not an offence that can be committed unintentionally. It requires such a positive act of association that the requisite mens rea is one of intent.’ It has been opined by some scholars that recklessness should suffice for conspiracy to commit some offences. It is the intention to agree that is material.
Recklessness as to be to the fact of entering the agreement but not as to the intention to agree as one cannot be reckless in intending to agree. It is for this reason that knowledge of the existence of the conspiracy must be proved against each participant. The knowledge could be constructive if the evidence shows that there was no way a particular person could honestly believe that there was no conspiracy. Scope of liability In conspiracy each conspirator is liable for the acts the co- conspirator thus, the question which arises is whether a person can be liable for an act kept secret by other members of the group or those acts which went beyond the scope of agreement.
Conspiracy could be that of a wheel or chain. In the former each conspiracy can be severed whereas in the later the conspirator is liable for the whole this is because it is deemed that the conspirator knew that others are involved to ensure the success of their plot. Vicarious liability Here it implies that a conspirator is liable for the acts of co-conspirators. Look at otchere and bossman.
It has been held in Teye alias Bardjo & Ors v. The Republic that a co-conspirator is not liable where any other party goes beyond what was agreed upon and does an act that is totally different from what was agreed upon. Objects impossible of achievement.
There are two schools of thought on this point. One school holds that if the crime was impossible of commission then the plot never presented any threat to society. That being so, the need to protect the society by a resort to the conspiracy weapon never arose.1 The other school, representing the traditional position, does not consider the objective factor relevant. The only relevant issue is whether the defendant did intend to combine for the purposes of committing a crime which, no thanks to him, was impossible of commission. The prefer in gh is the later school of thought in that the essence of the offence to prevent the potting of a crime thus, irrelevant if it is impossible to be committed. Defences and penalties.
There is no defence to conspiracy. the defence of abandonment of the plot is no defence as held in otchere. Here is was held that the accused were liable for the conspiracy the moment the agreement was conclude. Aslo, in Boahene, it was held that the defence of contramand does apply to conspiracy as this is mainly a defence of a contrary command and conspiracy is crime of agreement. Neither, does the defence of withdrawal avail to the accused. However, in the us there is a singular defence for conspiracy and that is the defence of withdrawal.
Penalty
In Ghana, the penalty is no more at large. It is the same as for the commission of the substantive offence. This is because, although the provision distinguishes between the penalty in situations where the substantive offence has been committed and in situations where it has not been committed, the difference in real terms is not one of substance, Section 24(1) of act 29. The result reached is that a person who is convicted of conspiracy is liable to suffer the same penalty except for capital offences. The rule of the merger in common has been changed thus a person can be charged for conspiracy and the substantive of offence as provided in section 24(2) and held in ex parte ofosu armah.
ATTEMPTS
Attempt in criminal law is distinct from its ordinary meaning. An attempt here implies
⦁ an act which was not completed before detection or
⦁ one which was completed but failed to achieve its object.
The mens rea for an attempt and a substantive offence are same. DUA v THE REPUBLIC The difference lies in the actus reus. For there to be an attempt the acts done must have been such that it was an irrevocable step towards the commission of the offence and that it lends itself to no other conclusion. Attempt requires the doing of an overt act – thus, an omission cannot be an attempt.
Attempts are dealt with under section 18 of ACT 29. Thus the main concern here relates to the means or the circumstances of use or the circumstances affecting the object of the crime or the absence of the object of the crime.
There is no concise definition of attempt under our laws. At common law, it is often said that the act constituting attempt must be proximate to the actus reus of the offence – or that it must be closely connected to the actual commission of the offence.
HOUGHTON v SMITH: the appellant was arrested and convicted for attempt to take delivery of stolen goods. The goods at the time of arrest were no stolen goods since the principle offenders who stole the goods had been arrested and it was in the lawful custody of the police. Held: the appellants appeal is dismissed since the act done was an attempt to commit an offence only to be interrupted by circumstances in relation to the thing which the offence was to be committed. Here reference to the change in circumstance is when the stolen goods were no longer stolen goods since it was in the custody of the police. “The accused must go beyond mere preparation
In Ghana, it appears that to amount to an attempt, the act done must have been such as may be regarded as an irrevocable step toward the commission of the offence that lends itself to no other interpretation – that is to say – the point of no return.
IMPOSSIBLE ATTEMPTS
This describes a situation where a person believes he is committing an offence but unknown to him the act which is to be the offence is not an offence or crime even when completed. Eg smuggling a substance under the assumption it’s cocaine when it is actually talcum powder.
A person may be guilty of attempting to commit an offence even if the facts are such that the commission of the offence is impossible – that is what he/she is proposing to do is impossible not because of insufficiency or inefficiency of means, but because it is for some reason physically not possible, whatever means one adopts.
R v. White section 18(C) and (D) , REG V. SHIVPURI
STATE V. MITCHELL: The defendant believing his victim was sleeping in a bed in the downstairs room fired into the bed one bullet hit the pillow and another the dresser close by. In fact the victim, unknown to the defendant, had gone to bed in the upstairs room. Since the defendant had been a boarder in the other’s house and knew that the latter customarily slept in the downstairs bedroom, the defendant’s expectation that his act would result in the desired killing was an eminently reasonable one . Held: he was convicted of attempt. His conduct made out a perfect case of an attempt.
PUNISHMENT FOR ATTEMPTS
In Ghana, 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). However, a person under imprisonment for 3 yrs or more who attempts to commit murder is liable to suffer death. Section 49.
Sometimes an act which amounts to an attempt to commit one crime is at the same time the actus reus of another crime – for instance, attempted murder may at the same time be causing grievous bodily harm – attempted rape may be indecent assault – attempted robbery may be unlawful entry – attempted arson may be being on premises for unlawful purpose etc. In such situations, the convict is liable to be punished either for the attempted offence or for the completed offence. Section 18(3)
Finally if there is a defence for the substantive offence the defence is also available for the attempt of that substantive offence. eg provocation for the attempt of murder. Section 18 (4)
PREPARATION
At common law, preparing to commit a crime is not a crime – so it is said that mere preparatory acts to commit a crime is not punishable – to be punishable, the act complained of must be proximate to the actus reus of the offence in question – so at common law, the task was establishing whether the act complained of was an attempt or merely preparatory. However, in Ghana, preparation is a criminal offence on its own by virtue of section 19.
Section 19: A person who prepares or supplies, or has in possession, custody, or control, or in the possession, custody or control of any other person on behalf of that person, any instrument, 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 a criminal offence 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 criminal offence.
Merely having in your possession or in the possession of another person on your behalf, such instruments, materials or means without the requisite mens rea will not fix one with culpability. The focus of the law is on instruments, materials or means that cannot innocently be possessed except with the intention of committing a crime.
A person who prepares to commit a crime is liable to be punished as though he he attempted to commit a crime.
ABETMENT
The crime of abetment is committed when a person renders assistance to another for the purpose of committing a crime, and thereby makes a contribution to the doing of a criminal act. A person who commits the crime, that is the principal actor, may have been supported by many persons who played various roles to ensure the commission of the crime these persons cannot be permitted to escape the grasp of the law thus, the need to punish them. The import of the rules of accessorial liability is to ensure that that each of without their individual assistance the principals may never have attempted the crime.
For a charge of abetment to succeed, the act complained of must precede or be contemporaneous with the commission of the offence. COP v. SARPEY & NYAMEKYE
Abetment is governed by Section 20 of Act 29.
INSTIGATION
The word also refers to “incitement” which involves the sowing of criminal ideas in the mind of other. The act sowing the ideas may be in the form of whipping up sentiments leading to the commission of the crime or urging or psychological punishing of another to commit a crime. Liability is incurred as soon as the particular acts of instigation is done. It is irrelevant the effect it has on its target.
R v ASSISTANT RECORDER OF KINGSTON UPON HULL; EX PARTE MORGAN: The accused incited a seven year old boy to commit acts of gross indecency with him. The assistant public prosecutor released him since the charged sheet was drawn without the consent of the dpp. In ordering the mandamus for re-try parker c.j. held as follows. Held: in the crime of incitement, which is a common law misdemeanor it matters not that no steps have been taken toward the commission of the attempt or if the substantive offence. It matters not, in other words whether the incitement (instigation) had any effect at all, it is merely the incitement or the attempting to incite which constitutes the offence.
R v NKOSIYANA: The accused mooted the assassination of a political figure to another and offered to raise money for the purpose and in fact paid part of the deposit to ensure that the deed would be done. The person with whom he made all these arrangements was in fact an undercover agent. He was convicted of incitement and he appealed. Held: one is guilty of the offence of abetment if he reaches and seeks to influence the mind of another to the commission of a crime e.g. by suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the aroused of cupidity.
COMMAND
Command involves giving instructions to another for that other to commit a crime – it often occurs in the context of service men – army, police etc.
COUNSEL
Counsel connotes advising, admonishing etc a person to commit a crime. According to Mensa-Bonsu, with respect to counseling, unlike instigating, liability is incurred only when the crime is actually committed according to the given advice – therefore, in the case of counseling, there is no liability unless the crime is actually committed. R v CALHEAM.
However, according to Kissi, this view is not supported by the Act because under sec 20(3), a person is still liable to be punished for abetment, whether it be counseling or otherwise, even if the offence is not actually committed – this is especially so, as all acts of accessoryship have been subsumed under the umbrella term of abetment.
PROCURE
To procure is to get another to commit a crime – procurement may take the form of making arrangements for equipment for the commission of the crime or of hiring or getting an expert, like a professional assassin, to do the job – contract killing.
The act of procurement must have been done with the intention of securing a crime – thus, where one is asserting a legal right or charting a legal course, he is within his rights, and liability does not arise even if it was foreseeable that others would take advantage of the situation to commit a crime. REPUBLIC v TEMA DISTRICT MAGISTRATE GRADE 1; EX PARTE AKOTIAH, R v CREAMER
AIDING
Aiding involves lending assistance or help to another to commit a crime. At common law, the aider was required to be physically present at the crime scene to lend assistance to the commission of the crime before liability could arise. However, in modern times, the requirement of physical prescence is obsolete because of technological advancement.
THAMBIAH v R
The principle here is that if a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of that nature, he abets those crimes when they come to be committed. Also, a person who supplies an instrument which is essential to the commission of a crime is held to be liable as an abettor.
NATIONAL COAL BOARD v GAMBLE: The NCB sold a bulk of quantity of coal. A carrier’s lorry was sent to fetch part of it. The lorry was loaded with a quantity of coal and the NCB’s weighbridge clerk (whose task was simply to find how much coal had been loaded in order to charge for it) then discovered that the load was in excess of what was allowed to be carried in the lorry on the highway. At that point, he could have insisted that the lorry be relieved of sufficient coal to make it law-abiding. But all he did was to call the attention of the driver to the overload. The driver said he would risk it, and the clerk handed him the weighbridge ticket (which passed ownership of the coal to the buyer) and allowed him to drive away with his load. HELD: It was held that the weighbridge operator, and through the NCB as his employer, became a party to the offence of driving the lorry when overweight
On another score, it should be noted that the abettor’s help may be given before or during the commission of the crime, – examples of help given before the crime include supplying the tools or materials for the crime; imparting know-how. Help includes co-operation – e.g. acting as look-out – the look-out gives warning to the perpetrator if necessary and his presence is a comfort to the perpetrator – another example of help is manning a get-away car.
The abettor need not share the mens rea of the principal – it is enough if the abettor knows of the principal’s intentions – that is, the abettor must know that he is helping with a crime.
ENCOURAGE
This connotes moral and psychological support to the principal that fortifies his resolve to commit the crime. In this light, a person may be held as an abettor by being present at the crime scene and applauding the efforts of the principal without actually rendering assistance.
R v CONEY. However, a person does not become an abettor merely by failing to prevent an offence – that is to say, it is no criminal offence to standby, a mere passive spectator of a crime.
R v CLARKSON
Presence at the time of the commission of the offence would render a person culpable if it is shown –
⦁ that the presence was non-coincidental or accidental – that is, the presence was on purpose, and
⦁ the presence was intended to lend support to the principal
OBENG v. THE REP: The accused was charged with abetting other to commit abortion by accompanying her to the doctor charged with performing the abortion. HELD: per the majority: a woman who accompanied a friend twice to negotiate for abortion is not guilty of abetting the crime since she was not present when the abortion itself took place. Minority view( azu crabbe); the accused’s presence showed that she was an accomplice.
FACILITATE
This connotes easing or making easy the commission of a crime – for instance, a security guard who purposely absents himself from post to make it easy for thieves to raid the premises. For liability to arise, it must be shown that the person knew that a crime was going to be committed and he eased the circumstances for the principal by his act or omission.
PROMOTE
You promote the commission of a crime by knowingly providing the financial or material resources to the principal to commit the offence.
In all acts of abetment, the abettor must do the act complained of purposely or for the purpose of securing the commission of the act of the principal – that is, the abettor must intentionally do the act – therefore, unintentional or negligent acts that tend to render assistance to the principal would not do
CONSEQUENCES OF ABETMENT
Where the offence abetted is actually committed, the abettor is deemed to have committed the offence. SECTION 20(2). Where the offence is not actually committed, it follows that the abettor is not deemed to have committed the offence – but this does not mean that the abettor escapes liability.
In the case of abetment of murder, a superior officer who commands a subordinate to kill unlawfully knowing that the killing will be unlawful, is held in a special light.
A person charged as an abettor is responsible only for crimes within the contemplated purpose of the crime he abetted. The abettor is punishable for abetting the offence he/she intended to abet. SECTION 21(1)(a).
So if A instructs B to assault C and B kills C, A will not be guilty of abetment of murder but abetment of assault, And if – A incites B to commit robbery by threats, without violence on C. B in attempting to commit the robbery, is resisted, and murders C. Here A commits the criminal offence of abetting robbery, and not of murder
EFFECT OF SECTION 21(1)(a) AND (b)
So where a person abets a particular crime or abets a crime against or in respect of a particular person or thing and the principal actually commits a different criminal offence, or commits the criminal offence against or in respect of a different person or thing (i.e. transferred intent), or in a manner different from that which was intended by the abettor, the abettor will not be liable for abetting the offence that was actually committed except where –
⦁ the offence actually committed was a probable consequence of the endeavour to commit the crime intended, or
⦁ the offence actually committed was substantially the same as the offence the abettor intended to abet, or
⦁ the offence actually committed was within the scope of the abetment.
THUS, A incites B to steal a horse. B, in pursuance of the incitement, gets the horse by false pretences. Here A commits the criminal offence of abetting the offence which B has committed Or if A instructs B to kill C by poisoning him and B chooses instead to strangle C, A will be inculpated for abetment of murder
By sec 21(2) a person, who abets a riot or unlawful assembly with the knowledge that the rioters or unlawful assemblers intend to use or are likely to use violence, is liable for any offence committed by any of the rioters or unlawful assemblers in executing the riot or unlawful assembly, although the abettor did not intend to abet the particular offence that was committed aside of the riot or the unlawful assembly. REGINA v KOFI ANTWI
PUNISHMENT OF ABETMENT
An abettor is liable to be punished in the same way as the principal where the offence is actually committed. SECTION 20(2)
Where the offence is not actually committed, the abettor is also punishable in the same manner as if the offence had actually been committed. SECTION 20(3)(b)
However, where the offence is not actually committed and the offence abetted carries the death penalty, the abettor is liable to suffer imprisonment for life. SECTION 20(3)(a)
If a person, who is within the jurisdiction, abets the doing of an act beyond the jurisdiction, which act if done in the jurisdiction would be a criminal offence, that person is punishable as if he/she had abetted the criminal offence. SECTION 20(7)
DEFENCES TO ABETMENT
An abettor is entitled to a defence under the Act, although his co-abettors or the principal is not entitled to that defence. SECTION 20(6). In line with this, where the act of the principal amounts to no crime, the abettor would be entitled to an acquittal.
There are two possible defences to abetment – countermand and withdrawal. R v CROFT. However, a secret decision to withdraw will not do. R v ROOK