Conspiracy as an Inchoate Offence:

Introduction:

In criminal law, an inchoate offence refers to conduct that is criminal in nature but falls short of a completed crime. One such inchoate offence is conspiracy to commit or abet a criminal offence. This note discusses conspiracy as an offence in the Ghanaian context.

Meaning of Conspiracy: (the old position)

Per section 23(1) of the Criminal Offences Act, 1960 (Act 29),

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.

This statutory definition reveals that a conspiracy involves at least two people (plurality of minds); there is some connection between the people involved, which is usually their agreement to act together to commit or abet crime, and there is an imposition of criminal liability on each party that is involved. Further, the offence per this definition is deemed committed once the parties agree to commit or abet a crime, even if they do not commit or abet the crime (notice that conspiracy is an inchoate offence). Under the illustration section of section 23(1), it is explained that if A. and B. agree together to procure C. to commit a crime, …A. and B. are both guilty of conspiracy to abet that crime." The illustration simply imposes criminal liability based on the agreement to procure C to commit a crime and not based on the actual procurement of C to commit the crime.

Whilst a conspiracy can simply involve an agreement between A and B like in the illustration above, sometimes a conspiracy can be much more complex and involve several people, say a hundred, agreeing to act together to commit a crime. Among several parties (thus more than two) where there is an agreement to act together to commit or abet a crime, Lord Hewart explained in R v. Meyrick and Ribuffi that

Such agreements may be made in various ways. There may be one person, to adopt the metaphor of counsel, round whom the rest revolve. The metaphor is the metaphor of the centre of a circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain; A communicates with B, B with C, C with D, and so on to the end of the list of conspirators. What has to be ascertained is always the same matter: is it true to say, in the words already quoted, that the acts of the accused were done in pursuance of a criminal purpose held in common between them

When there is one person around whom other co-conspirators revolve, the overall conspiracy is known as a wheel conspiracy. This one person, usually the ringleader, single-handedly does the recruitment of several other persons to pursue a common criminal aim. The single person who does the recruitment is usually called the hub, while the co-conspirators are known as spokes. An example of a wheel conspiracy is when a CEO separately recruits ten employees to embezzle company funds, with each employee not knowing about the involvement of other employees. Whilst there is a grand conspiracy to embezzle the funds and each employee is acting in his or her own way to further the criminal purpose of embezzling the funds, the CEO is responsible for the entire conspiracy, whilst each employee is guilty of conspiracy for his or her separate agreement with the CEO to commit or abet an offence.

The multiple parties may also be connected in a chain-like manner. Thus, it may take the form of person A communicating with and agreeing with person B, who communicates and agrees with person C, who communicates and agrees with person D to pursue a common criminal purpose, say sell drugs, and this is known as a chain conspiracy (because of the chain-like connection created between the co-conspirators). Whilst C and D were not part of the original agreement between A and B, they are nonetheless part of the conspiracy and accordingly liable.

Amendments to the Law on Conspiracy:

It must be noted that there have been changes to the provision on conspiracy in section 23(1) of Act 29. Essentially, the phrase "…agree or act together", has been modified and changed to "agree to act together". This is discussed below.

Old Law:

The provision in section 23 of Act 29, which is the old position, provides that an accused is guilty of conspiracy if he agrees or acts together with another to commit or abet a crime. This provision thus contained two grounds under which an accused may be convicted of conspiracy. The first is that the accused may be convicted of conspiracy if he merely agrees with another to commit or abet a crime. The second is that the accused may be convicted of conspiracy if he acts together with another person to commit or abet a crime, even in the absence of an agreement.

New Law:

The new position, however, is that the accused is guilty of conspiracy if he agrees to act together with another to commit or abet a crime. This new position, initially clarified in the case of Kpebu v. Attorney General [2016] GHASC 26, now makes prior agreement to act together with a common purpose an essential element of the crime of conspiracy. In that case, and following the coming into force of the 1992 Constitution, a bill was passed by parliament giving powers to a Statute Law Revision Commission to rewrite the statute books to bring it into conformity with the provisions of the 1992 Constitution. Subsequently, seven revised volumes of the Laws of Ghana were put before parliament and adopted by parliament.

One of the laws that were changed by the Commissioner, was the law on conspiracy. The Supreme Court briefly commented on whether that is now the new law on conspiracy. Their lordships upheld the decision of the High Court in Rep v. Augustina Abu, where Marful-Sau JA, speaking on the new law on conspiracy, said:

The difference in the definition of conspiracy in the two statutes is in the opening sentence. While the new Criminal Offences Act, uses the words agree to act, the old criminal code uses the words agree or act.

Their lordships, in upholding the decision, said:

The High Court reasoned that the new formulation by the Commissioner had changed the old law on conspiracy such that 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. This is a correct position of the law on conspiracy, as it accords with our conclusion that the Commissioner’s seven volumes of the Laws of Ghana (Revised Edition) having received the necessary Parliamentary approval and adoption, every statement of the law therein contained is the correct position thereof unless pronounced otherwise.

Thus, for the prosecution to succeed in securing a conviction for the charge of conspiracy, it must prove that the accused had a prior agreement with another to act together with a common purpose, which is to commit or abet a crime.

In the case of Yirenkyi v. Republic [2016] GHASC 5, a more recent case on the issue, the Supreme Court again commented on what the new law on conspiracy is. Their Lordships stated that

The essence of the changes brought about by the work of the Statute Law Review Commissioner is that, under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement, whereas under the old formulation, a person could be guilty of conspiracy in the absence of any prior agreement.

Their Lordships added that this new position of the law on conspiracy, which makes prior agreement to act together an essential ingredient of the offence, reinforces the view that conspiracy is an intentional act, and this intentionality is manifested in the "prior agreement" between co-conspirators.

Actus Reus of a Conspiracy:

Having criminal thoughts without more is not an offence, partly due to the impossibility of proving the existence of such thoughts, for it is said that not even the devil knows what is in the mind of man.

However, sharing those thoughts with another and agreeing to act together to commit or abet a crime constitutes the crime of conspiracy. The actus reus of this offence, therefore, is the agreement between two or more persons to commit or abet a crime. Even if the parties do not actually commit or abet the crime, the actus reus of a conspiracy was present once the parties entered into such an agreement. In the case of R v. Aspinall, it was stated that

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 and 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 be prevented or may fail. Nevertheless, the crime is committed; it was completed when the agreed.

Mens Rea of a Conspiracy:

The mens rea of a conspiracy is the intention to commit or abet the same crime. If, for instance, A and B agree to procure C to commit a crime, they are guilty of conspiracy to abet that crime, and the mens rea would be the intention to procure C to commit the crime.

Punishment for Conspiracy:

When an accused is found guilty of a conspiracy, section 24 of Act 29 makes the following provisions for his punishment:

(1) If two or more persons are guilty of conspiracy for the commission or abetment of any crime, each of them shall, in case the crime is committed, be punished for that crime, or shall, in case the crime is not committed, be punished as if he had abetted that crime.