INCHOATE OFFENCES
Inchoate offences refers to offences where D has not actually committed a
`substantive crime` such as murder, rape or theft or burglary, but D has done one of
the following:
a) Made an attempt to do so (D has tried to commit the crime but has failed, for
some reason to complete it.
b) Entered into a conspiracy with at least one other person to do so( D has
entered into an agreement that a criminal offence will be committed)
c) Assisted or encouraged someone else to commit a crime
`Inchoate` literally means` at an early stage`. These 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 be committed by them
personally or by someone else).
It allows the police to intervene at an early stage and make arrests before a
substantive crime has occurred thus making a significant contribution towards public
safety.
Under the criminal law of Sierra Leone an attempt to commit an indictable
offense is a common law misdemeanor. This contrasts with the position in England
where the existing law on criminal attempt is statutory embodied in the Criminal
Attempts Act 1981.
This lecture will therefore be looked at from the lens of pre -1981 body of
English principles, applicable to Sierra Leone’s legal system.
ATTEMPT
Criminal law does not punish people just for intending to commit a crime, but
it recognises that conduct aimed at committing an offence may be just as blame-
worthy if it fails to achieve its purpose as if it had been successful.
The key ingredients under this head are:
a. The criminal intention to commit a crime
b. An overt act done in furtherance of the intent, and
c. The non-consummation of the intended crime.
Whilst the first element is the mens rea, the second and the third constitute the actus
reus
THE ACTUS REUS
Defining this under common law is quite complex, which arises from what is
described as the,' proximity doctrine`. How proximate to the execution of the crime
must the defendant be to incur criminal liability for attempt?
A rule in that direction, has been formulated according to Glanville Williams
(1961) 622, ` Criminal law` as follows:
The act of attempt must be sufficiently be proximate to the crime intended. It seems
to be a question for the judge, whether the act charged, as the attempt satisfies this
requirement, at any rate to the extent of ruling whether the act is capable of being
regarded as satisfying it. No exhaustive test can be stated: the general rule is that
mere “preparation” for the crime is not enough
Where proximity in criminal law, could be defined as the first of a series of similar
acts intended to result cumulatively in the crime.
Re, Glanville Williams, (1961, 635-637)
In line with the position of the common law of England and Wales, the Sierra Leone
Court of Appeal in the case of Cape v Reginam, [Link] 474(1964-66)
“…the actus reus of an attempt is the doing of an act immediately connected the
commission of an offence which cannot reasonably be regarded as having any
purpose other than the commission of that offence.”
FACTS
The appellant was charged in the then Supreme Court (now High court), falsification
of accounts, larceny, and conspiracy to commit a crime and, attempted larceny. He
was a diamond official of the Sierra Leone Selection Trust, and directly responsible
for all diamond and gravel mining and milling operations in Kono. The evidence was
that he asked a duty engineer for concentrate to take to another plant. A security
official who had become suspicious then decided that the gravel should be
accompanied by a guard. Closer to arriving at the destination, the security guard was
allegedly ordered by the appellant to leave the car and to continue his journey on foot
to their destination.
The conflict of evidence here was, whether the appellant was present
throughout the transfer of the concentrate from the original site to the new
destination?
It was evident that the appellant had extensive authority to enter any plant
under his supervision and remove diamonds or concentrates freely, and sometimes
unescorted, as he had wanted to do, on that day in question.
In his appeal against `attempted larceny`, one of the issues before the court was,
whether the trial court erred in law in holding that the offence of attempted larceny
had been proven?
He contended that no criminal intention could be imputed to him, from his
statement or actions and that there was evidence of the actus reus of attempted
larceny.
In his ruling, Bankole Jones, P. who delivered the unanimous decision remarked that,
“…mere intention to commit an offence does not constitute an attempt; some act
(Actus Reus) must be proved to have been done by the prisoner directly connected
with the offence.”
At trial, what the jury have to ask themselves is, whether the accused was simply
preparing to commit the offence, or whether the accused had done something that
was more than merely preparatory to the commission of the offence.
It is problematic to prove exactly whether the accused crosses the line. The below
case exemplifies that:
R v Campbell (1991), the accused was arrested by police within a yard of the
door of a post office carrying a threatened note and a fake gun. He admitted that he
had originally planned to rob the post office, but had changed his mind and was
going back to his motor bike, when he was arrested. His conviction for attempted
robbery was quashed because, there was no evidence on which a jury could safely
find that his acts were more than preparatory to committing the offence.
Similarly in R v Geddes,(1996) Crim LR 894, in case of false imprisonment.
D was discovered by a member of staff in the boys toilet of a school. He ran off,
leaving behind a rucksack, in which was found items including , sealing tape and a
knife. He was charged with attempted false imprisonment of an unknown person.
The judge ruled that if there evidence of an attempt, the jury should convict, and he
was convicted. On appeal, the conviction was quashed. Although there was no doubt
on D’s intent, there was serious doubt that he had gone beyond the mere [preparation
stage. He had not even tried to make contact with any pupil.
Also, there are two executory dimensions of the actus reus , which needs to be
explained:
a. Factual impossibility, and
b. Legal impossibility.
Factual impossibility describes the scenario where an attempt is made to consummate
the criminal design but it turns out it was impossible to do so.
For example, D tries to steel money from P’s pocket, but discovers that P’s pocket
was empty. In such case, the criminal design has failed due to the fact that the
targeted object was factually not there at the time of the attempt.
Will D be criminally liable then? The answer is, D is still criminally liable,
though he failed due to the fact the targeted object was not available, as a matter of
fact. The justification for this response of criminal law is that D possessed the mens
rea and took all steps necessary to commit the offence, the only reason the crime was
not fully complete was because of a fact unknown to D.
Consider the case of R v Shivpuri (1987), D was arrested by customs officials and
confessed that there was heroin in his luggage. After forensic analysis, it transpired
that in fact the substance was only harmless ground vegetable leaves. D was
nevertheless convicted of attempting to be knowingly in dealing with a controlled
drug
Legal Impossibility by contrast characterises a situation where the defendant has
done all he intends to do yet the law does not criminalise the act or the act is not
prohibited by law.
The case of R v Taaffe (1984) illustrates this, where D imported foreign currency
into the UK, believing it to be a crime. In fact it was not against the law, so although
Taaffe was in his own mind attempting to commit an offence, he could not be held
liable.
The mens rea element of `attempt` implies that the defendant must intend to
consummate the particular crime , or D was reckless as to do some act, that amounts
to a crime.
In R v Whybrow (1951) 35 Cr App R, 141, the CA held that, although on a charge
of murder, an intention to cause GBH would suffice, where attempted murder was
alleged, nothing less than an intent to kill would do: `the intent becomes the
principal ingredient of the crime`.
A-G Reference (No 3 of 1992) 2 All ER 121 A petrol bomb had been thrown from a
moving car, narrowly missing a parked car in which four men were sitting and two
other men standing nearby, and smashing into a wall. Those responsible of throwing
the bomb were charged with attempted aggravated arson, the court alleging that
while criminal damage was intentional, they had been reckless as to whether life
would be endangered. D were found guilty on appeal, it was ruled by the CA that, it
was enough that D intended to damage property, being reckless as to whether life
would be endangered.
Conspiracy
In Sierra Leone, this essentially is a common law indictable offence. Where two or
more people have agreed to commit a crime, then there may be liability for the
offence of conspiracy.
This was articulated in the case of R v
Aspinal, 2QB 58(1876), where Brent JA held:
“The crime of conspiracy is completely committed, if it is committed at all, the
moment two or more have agreed that they will do, at once or at some future time
certain things. It is not necessary in order to complete the offence that any one thing
should be done beyond the agreement. The conspirators may repent and stop, or may
have no opportunity, or may be prevented, or may fail. Nevertheless, the crime is
complete: it was completed when they agreed.”
But this has position has been criticised, as it gives the impression that the only
ingredient required to establish conspiracy is an agreement to act. The preponderant
judicial approach as it now stands is that there should be proof of some overt act or
acts as a basis for a conspiracy conviction. Hence, the material ingredients of
conspiracy are:
a. The agreement or combination,
b. Some overt act(s), and
c. The specific intent to execute the objective of the concert or combination, or
as otherwise put, the intent to do an unlawful act by unlawful means.
ACTUS REUS
The first two ingredients constitutes the actus reus. To prove a charge of conspiracy it
is necessary to prove the existence of the agreement or concert amongst the alleged
co-conspirators. This is crucial for the purpose of liability. This means there must be
evidence, of a decision or understanding on the part of the alleged co-conspirators to
execute the conspiratorial design.
Another key aspect of the law of conspiracy insofar as the agreement element is
concerned is, whether the co-conspirators should have known each other prior to the
combination or concert or should have been in direct communication with each other
as a condition.
The law is unambiguous as there no such a burden on the prosecutor, as long as it is
shown that, “ the acts of the accused were done in pursuance of a criminal purpose
held in common between them.”(R v Meyrick, 21
Cr App R.94
Though conspiracies pose enormous problems of proof for prosecutors, “ a very
frequent way of proving it is by showing that the parties concerted in the pursuit of a
common object in such a manner as to show that their actions must have been
coordinated by arrangement beforehand.” ( Smith and Hogan 1978, 237). This is
usually done by adducing circumstantial evidence.
Under Sierra Leone a conspiracy charge cannot be charge without proof of some
overt act. Where such act is one which manifests the criminal intention and tends
towards the criminal object. ( Thompson, 1999) 244.
This is illustrated by the landmark decision in the Court of Appeal in Lansana and
Eleven others v. Reginam, and in the case of, The State v Mohamed Fornah and
Fourteen others.
In the former case,(Lansana and others) the CA stressed the importance of the overt
act doctrine in the context of conspiracy in relation to the offenses created by
Section 3 and 4 of the Treason and State Offences Act, 1963.
Section 3(1) reads;
A person is guilty of treason and shall on conviction be liable to
Suffer death who either within Sierra Leone or elsewhere
(a) Prepares or endeavours to overthrow the Government by unlawful means; or
(b) Prepares or endeavours to carry out by force any enterprise which usurps the
executive power of the State in any manner of both a public and a general nature.
Section 4 provides that:
A person is guilty of treason felony and shall on conviction be liable to imprisonment
not exceeding ten years who either within Sierra Leone or elsewhere prepares or
endeavours
a. to procure by unlawful means any alteration of the law or the policies of
Government
b. To carry out by unlawful means any enterprise of the State in matters of both
a public and general nature.
Likewise in the latter case ( Forna and others), the Court also acknowledged
the significance of the doctrine, all the overt acts alleged in support of each count of a
conspiratorial nature were laid in the indictment. This prosecutorial approach was
dictated by the perception that anything short of strict conformity with the doctrine
would prove fatal on appeal, to any convictions obtained. But under English law, this
need not be the case, “it is the conspiracy that is the offence and it is immaterial
whether anything has been done in pursuance”. (Archbold 1966)442.
MENS REA
The mens rea, is that the parties must intend that the agreement will be carried
out for the crime to be committed by one or more of the conspirators.
In R v Edwards (1991), D had agreed to supply amphetamine but appeared to have
intended to supply a different drug, ephedrine, which was not a controlled drug.
According to the CA, the trial judge had rightly directed the jury that they could only
convict of conspiracy to supply amphetamine if it was proved that he had agreed to
supply amphetamine and he had intended to supply that drug-merely agreeing with
no intention of actual supplying the substance was not enough. His conviction was
however upheld.
According to Thompson (1999)245, he states that, “the intention is in the mind of
any alleged coconspirator to execute the unlawful purpose or do the unlawful act by
unlawful means.”
One recurring question of the offense is, “whether the crime of conspiracy
should be limited to agreements to commit criminal offences?” or whether, “it should
also extend to agreements to do an act which, would not amount to a criminal
offence.” (ibid)
This is because the law of conspiracy is too broad encompassing not only crimes,
“but also some tort, fraud, the corruption of public morals and the outraging of of
public decency.
This broad nature under existing Sierra Leone laws, almost every conceivable
agreement or combination whose objective is unlawful in a criminal sense falls
within the prohibitory domain of criminal law
For example, this includes, conspiracies to commit treason, conspiracies to murder,
rob, rape, steal, defraud, corrupt public morals, outrage public decency, obstruct or
pervert the course of justice, and to accuse of crime. Which is in contrast to many
other jurisdictions, like the US and the UK.
IMPOSSIBILITY
At common law, impossibility is a defence to conspiracy except where it was down
to D and E’s choice of method being inadequate. This is seen in DPP v Nock (1978)
AC 979
D and E resolved to extract cocaine from a powder, which they believed was a
mixture of cocaine and lignocaine. In fact the powder was pure lignocaine
hydrochloride, an anesthetic used in dentistry, containing no cocaine at all. Their
convictions for conspiracy to produce a controlled drug was quashed; it was
physically impossible to extract cocaine from the powder.
Assisting or encouraging crime
At common law under the laws of England and Wales, it was an offence to `incite`
someone to commit an offence. This was committed if D encouraged or persuaded
someone else to commit an offence, whether or not that offence actually took place.
However, this general offence of incitement was abolished by S 59 of the Serious
Crime Act 2007, and the new offences of encouraging and assisting crime were
created instead. Though there are various specific incitement offences still survived.
These include: encouraging terrorism, soliciting murder, etc
In Sierra Leone, under common law, there has not been any statutory legislations to
amend the offence of incitement, so our laws proscribes and punishes conduct which
amounts to incitement or solicitation to commit crimes.
Hence, the discussion on assisting or encouraging a crime would be discussed under
incitement or solicitation as things currently stand.
In criminal law context, `incite` and `solicit` have a common roots. Solicitation is the
inchoate offence of encouraging or instigating another to commit a crime; incitement
is to instigate or persuade another to engage in illegal conduct of a criminal nature.
Therefore under our common law tradition, a person may be guilty of incitement or
solicitation if he commands, encourages, exhorts, importunes, incites, induces,
instigates, persuades or solicits another to commit a crime.( Thompson, 1999) 248.
The ingredients of the crime are;
(1). Words of encouragement, exhortation, importuning, incitement, inducement,
instigation,
persuasion or solicitation;
(2) Of another
(3) with the intent to instigate the commission of a crime
Whilst (1) and (2) are the actus reus of the offence,(3) is the mens rea element of the
crime.
ACTUS REUS
The existing law on incitement and solicitation in Sierra Leone could be explained in
the case of Mohamed Musa v Reginam, ALR.SL113 (1964-66).
The appellant was charged with inciting others not to pay local tax whilst also
encouraging the tax collectors not to perform their duties. The appellant petitioned
the Resident Minister on behalf of himself and others in his chiefdom stating that
they were unwilling to pay local tax until a regent chief was elected. He addressed a
public meeting convened by the Resident Minister at which he stated publicly they
would only pay their taxes if the chiefdom was de-amalgamated.
He was charged with incitement under section 8 of the Local Tax Act (Cap.63), and
was convicted of inciting others not to pay local taxes but was acquitted of
encouraging the tax collectors not to perform their duties. On appeal against
conviction, he contended that the trial court erred in rejecting his submission that
there was no case to answer; he also contended that there was not sufficient evidence
to justify conviction for incitement.
In delivering the unanimous verdict, Ames, president of the court held:
“We agreed this appeal must be allowed on both grounds of appeal. In our opinion,
the submission at the close of the prosecution that there was no case to answer should
have been upheld and not overruled. In this ruling, the learned trial judge said, ` In a
charge of incitement there must be a communication which some person whom the
offender wishes to incite…` There was no evidence of any such communication
having been made by the appellant.”
The case emphatically laid down the proposition that, “before an accused person can
be convicted of incitement there must be evidence of a communication which reaches
a person whom the accused wishes to incite.”
MENS REA
“ An intention to bring about the criminal result is of the essence of incitement.” (
Smith and Hogan, 1983)225. Sierra Leonean case laws illustrate that the mental
element of incitement or solicitation is either purpose or specific intent in the sense
that the words of instigation, persuasion or inducement must show that the defendant
had no other intention but to persuade the person being incited to commit the
substantive crime.