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16.04.2019 Feature Article

The Mens Rea -An Essential Element In Determining Conspiracy

It is clear from S. 23(l) Of the criminal offences Act,1960(Act 29) that, the mental element of conspiracy is purpose, that is the common purpose of the agreement or collaboration between the parties must be to commit the crime charged .

An Inchoate offence is a type of crime completed by taking a punishable step towards the commission of another crime. The basic inchoate offenses are attempt, solicitation, and conspiracy. The crime allegedly intended is called the target offense. Except for conspiracy, inchoate offenses merge into the target crime. Also "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."

An inchoate offense therefore requires that, the accused person/defendsnt has the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of solicitation of murder , he or she must have intended for a person to die.

Purpose means reason for which anything is done, created or exists; a fixed design, outcome, or idea that is the object of an action or other effort; fixed intention in doing something; determination. There must be an intention to carry out the unlawful pu rpose. This was emphasised by the Privy Council per Lord Griffiths in Yip Chip-Cheung vrs. R (1994) 99 Criminal Appeal R. 406, 410. “The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out.

It is the intention to carry out the crime that constitutes the necessary mens rea of the offence.” See also R v Anderson [1986] A.C. 27 H. L. per Lord Bridge at P. 39.E. The accused persons must know the facts which make the purpose unlawful.

Flowing from the above, Inchoate means "just begun" or "undeveloped", and is used in English criminal law to refer to situations where, although a substantial offence has not been committed, the defendant has taken steps to commit it, or encouraged others to do so.

These situations are generally divided into three categories; *(a)attempts* where the defendant has taken steps *towards carrying out a complete crime"*, (b) *incitement*, where the defendant has encouraged others to commit a crime, and (c) *conspiracy*, where the defendant has agreed with others to commit a crime. In each case, the defendant "has not himself performed the actus reus but is sufficiently close to doing so, or persuading others to do so, for the law to find it appropriate to punish him".

These propositions were stated by the House of Lords per Viscount Dilhorne in Churchill vrs. Walton [1967] 2 A. C. 224; [1967] ALL E.R. 497; 51 Criminal Appeal R. 212. I think the head note of the Criminal Appeal Reports at p. 212-13 sums up the dedidendi The of the cas e well. "Before a person can be convicted of conspiracy to commit an offence (even if the offence is one absolutely prohibited by Statute), it must be proved that he was a party to an agreement the object of which was to do something unlawful.

Mens rea is an essential ingredient in conspiracy only in so far that there must be an intention to be a party to an agreement to do an unlawful act. In C.O.P. vrs. Afari and Addo [1962]1 GLR 483, was often cited. In that case the Supreme Court of the First Republic held that the law of conspiracy as contained in S.23 (1) of the Criminal Code, 1960 (Act 2 9) “is wider in scope and content than the English law on the subject. It consists not only in the criminal agreement between two minds, but also acting together in furtherance of common criminal objective”.

Also in n the vrs Otchere [1963] 2 GLR 403 , which contains perhaps the most comprehensive Statement of the law of conspiracy by a court in this country.

Though it is the judgment of the Special Criminal Division of the High Court, To me, the said judgement i think is as authoritative as any judgement of the Supreme Court of the First Republic or any other Court of Appeal in the history of this country. The court consisted of Korsah C. J., Van Lare and Akufo-Addo JJ.S.C. In their judgement per Korsah C.J, it was observed that the law of conspiracy as stated in our Criminal Code embodies the principles of the English law of conspiracy as enunciated in judicial decisions of the English Courts...” which have been followed by the court in the case of the state v. Teiko Tagoe ” (High Court) (Special Criminal Division) Accra, 17th April 1963 unreported)

Again, In C.O.P. vrs. Afari and Addo [1962]1 GLR 483, Supreme court -established the rule of evidence in conspiracy and made it clear, that "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 evidence of subsequent acts, done in concert and so indicating a previous agreement".

This statement accurately sums up what has always been English law and our law(Ghana) and explains the scope and significance of the words "acting together". It states a principle of the law of evidence in conspiracy cases that conspiracy is often a matter of inference deduced from certain acts of the parties done in pursuit of a common purpose to do acts which constitute the substantive crime. The agreement may be proved by direct evidence or by proving circumstances from which the court may presume it.

in R v Murphy (I 837) 8 C. and P. 297; 173 E.R. the trial court held that, " although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have the common design and to pursue it by common purpose, and so to carry it into execution. This is not necessary because in many cases of the most clearly established conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same objects, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object".

#Let me pull a break here and prepare for a chilled sobolo in the evening#

Dawda Eric(Equity)
Citizen Vigilance for Justice
16th April,2019
[email protected]

Dawda Eric
Dawda Eric, © 2019

This author has authored 65 publications on Modern Ghana.
Author column: DawdaEric

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