Attempts and Conspiracies

Attempts and Conspiracies

Attempts

Attempts are classified as inchoate offenses because they remain incomplete. Typically, the law does not punish mere intent; some degree of criminal harm must be achieved before liability is imposed. Section 380 of the Penal Code addresses offenses requiring the formation of intent, preparation, and execution of the crime. During preparation, there are both remote and proximate acts.

- Remote acts: Where the actus reus is incomplete, and thus the act is not punishable.

- Proximate acts: Where the actus reus is complete, the act becomes punishable as an attempt.

Mens Rea

In attempts, mens rea plays a crucial role, as the law seeks to prevent such intentions from materializing. For a conviction of an attempt, the accused must have foreseen the prohibited consequence, such as death or injury, and intended for it to occur, or must have acted in a manner prohibited by law. For example, in a case of arson, the accused must have intended to set fire to a house, foreseen that burning would likely result, and desired that outcome.

Actus Reus

Mere intention to commit a crime does not constitute an attempt. An attempt requires an act with the intent to commit the crime, which is part of a sequence of acts leading to the crime’s commission, had it not been interrupted. The act must be directly and immediately connected to the crime, beyond mere preparation. It must be shown that the accused started executing their intention through actions aimed at fulfilling it. In R v. Robinson [1915] 2 KB 342, the accused prepared to commit fraud by insuring jewelry and pretending they were stolen. Although his actions constituted preparation, the court ruled that a claim for the insurance money would have been enough to establish an attempt.

Attempted Theft

In theft, asportation (the movement of stolen property) is crucial. In R v. Rino & Others (1892) Cox 17 c.c. 491, the court stated that to prove an attempt, it isn’t necessary to show that the crime would have been committed had the attempt not been frustrated. In Ambokile Mwamalongo v. R. (1967) H.C.D No.275, the accused was convicted of attempted theft when he pulled a purse from the victim’s pocket but failed to fully take it due to the victim’s sudden movement. The court held that sufficient asportation had occurred to establish attempted pickpocketing.

Attempted Murder

In attempted murder, mens rea is key, and it must be proven that the accused intended to kill, not merely cause grievous harm. In R v. Christopher Ngambilo (1967) H.C.D No.388, the accused shot the victim in the knee, having declared his intent to kill. The court ruled that while intent to cause grievous harm suffices for murder, attempted murder requires proof of actual intent to kill.

Attempted Rape

In rape cases, the accused must intend to achieve sexual gratification at all costs, regardless of resistance. In Mulira v. R. 20 E.A.C.A 223, the conviction of the accused for attempted rape was reduced to assault with intent to ravish, as it was not proven that he intended to proceed despite resistance. Similarly, in Omar v. R. (1971) H.C.D No.362, the accused’s actions did not constitute attempted rape as he had not begun undressing in preparation for intercourse.

Impossibility

The notion of "legal impossibility" is often misinterpreted. If the intended outcome is not legally recognized as harm, its pursuit does not constitute a criminal attempt. Conversely, "factual impossibility" is not a defense. For instance, if someone uses weak explosives to attempt a crime, they may still be guilty of an attempt, despite the failure of the explosives. Section 380 of the Penal Code explicitly states that impossibility, due to unknown circumstances, does not exempt one from an attempt charge.

Why Conviction for an Attempt?

Convicting an individual for an attempt is necessary as it shows a willingness to defy the law for personal gain. In Edward Michael v. R. (1948) 1 T.L.R 308, the appellant was found guilty of attempting to sell diamonds, despite the objects being mere glass. The court focused on the intention and belief of the appellant that he was selling diamonds, making him liable for the attempt.

Some Specific Offenses of Attempt

The Penal Code specifies several offenses related to attempts, including:

1. Attempted mutiny (s.45)

2. Attempted rape (s.132)

3. Attempt to procure abortion (s.150)

4. Attempted murder (s.211), among others.

Conspiracies

Conspiracy involves an agreement between two or more individuals to commit an unlawful act or achieve a lawful act through unlawful means. The essential elements include:

- Involvement of two or more persons.

- An unlawful agreement.

- A specific objective.

The actus reus of conspiracy is the agreement itself, with no need for any act beyond the agreement. A conspiracy is formed even if the means of executing the plan are not yet settled. In R. v. Karia 16 E.A.C.A 116, the court upheld the conviction of individuals conspiring to export diamonds, affirming that a conspiracy can be inferred from actions demonstrating a common plan.