Attempts and conspiracies in criminal law.

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Parties to crime. At common law, parties to a crime are categorized into four groups:

Attempts.

Attempts and conspiracies are known as "inchoate" crimes. This is because the full actus reus of the principal offence had not been reached. However, as far as an attempt is concerned, the "full" actus reus of attempt must be there. The problem with these crimes rests primarily on the question of actus reus and not mens rea.

In order to understand the nature of the problem in inchoate crimes, you will first be introduced to the stages of the commission of a crime. Briefly, this may be represented in the following form:

Stage I: Mental contemplation

Stage II: Preparation

Stage III: Attempt

Stage IV: Commission (Actus Reus)

Generally speaking, before crimes are committed, there are three distinguishable stages. In the first stage, a potential criminal contemplates the intended offence. As this act is confined to his own mind, there is no way he can be penalized. The second stage is preparation, where the potential criminal prepares whatever is necessary to make his plan a success. The third stage is putting his intention into action with a view to committing the offence in question. The last stage is when he actually commits the offence. It is important to note that these stages, especially the third and the fourth, may be very close to each other in such a way that it may not be easy at times to distinguish them clearly. All the same, except for conspiracy cases, a person is normally punished at the third and the fourth stage.

It is the third stage, i.e., attempt, that is the concern of this lecture. That is why offences at this stage are called "inchoate" for the reason that they are incomplete crimes.

What is an Attempt?

The definition of attempt is found in section 380 of the Penal Code:

"When a person intending to commit an offence, begins to put this intention into execution by means adapted to its fulfillment and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. It is immaterial except so far as regards punishment whether the offender does all that is necessary on his part for completing the commission of the offence or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence."

(i) The Actus Reus of Attempt

An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts that would constitute its actual commission if it were not interrupted. For this reason, an attempt needs an act; an omission is not enough, at any rate where the consummated crime cannot be committed by an omission. For the actus reus of attempt to be complete, therefore, the accused must manifest his intention by "some overt act," although it is not necessary that he does everything to complete the offence. The overt act is required to constitute the attempt, and there is no attempt in law until the requisite overt act has been committed.

In the case of R v. Miskell (1954) W.L.R. 438 at p. 440, the court stated:

"The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit but acts immediately connected with it are."

The quoted portion of the cited case qualifies further the nature of the "overt act" required to constitute the actus reus of attempt. Out of this statement, three rules governing the act of attempt may be formulated:

(i) It must be sufficiently proximate to the crime attempted.

(ii) It must aim towards a crime, not towards non-criminal conduct.

(iii) It need not be an act capable of bringing about the crime intended; in other words, the crime intended need not be possible. 

Conspiracy

In simple words, conspiracy is an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means. The agreement may be inferred from conduct. In Tanzania, an agreement to commit an offence or conspiracy is a statutory offence. Section 384 of the Penal Code defines conspiracy in the following words:

"Any person who conspires with another to commit any felony or to do any act in any part of the world which if done in Tanganyika would be a felony and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felon…”

Take note that 'agreement' in the stages of crime shown above is in stage I or II, but conspiracy to commit a crime is in stages III and IV. Therefore, conspiracy is one of the early stages towards the commission of crime. Conspiracy, like attempt, is a distinct offence.

(i) Actus Reus of Conspiracy
In the agreement itself, mere knowledge of the plan is not sufficient; nor is the mere intention to achieve the unlawful object. For there to be a conspiracy, more than one person must agree. In Britain (at common law), a husband and wife cannot conspire, but in Tanzania, section 386 of the Penal Code stipulates clearly that a husband and wife can conspire. A conspiracy is complete even if no further act is done in pursuance of the agreement. In addition, some reservations, express or implied, do not negate the fact of conspiracy, although this will depend upon the nature and extent of the reservation made.

The question of what is a sufficient agreement to found a conviction for conspiracy is one of several issues in criminal law aggravated by confusion between substantive law and the law of evidence. The main reason is that such agreements are done in secret, and it may not be easy to get direct evidence on them. The only way to circumvent this problem is to show that the parties concerted in the pursuit of their common object in such a manner as to show that their actions must have been coordinated by arrangement beforehand. It is not necessary to prove that the persons accused of conspiring together were in direct communication with one another because they may have operated through a third party. It is sufficient if it is proved that each conspirator knows that there is in existence or coming into existence a scheme which goes beyond the illegal acts which he agrees to do and attaches himself to the scheme. In the case of R v. Karia 16 E.A. C.A. 116, the Court of Appeal of East Africa stated that an agreement to conspire may be deduced from any acts which raise the presumption of a common plan.

(ii) Mens Rea of Conspiracy
In conspiracy cases, the Republic (prosecution) must prove not only an agreement amounting to conspiracy between the conspirators to carry out an unlawful purpose but also an intention in the mind of an individual conspirator to carry out that unlawful purpose. In the case of R v. Whitchurch (1890) 24 Q.B.D 420, Whitchurch, believing herself to be pregnant, agreed with others that they should use instruments and administer things to her with a view of procuring her miscarriage. The instruments were used and things were administered, but there was no evidence that Whitchurch was pregnant—a fact which, if proved, would have meant that she could be convicted of a crime. Whitchurch was convicted of conspiracy.

(iii) Proof of the Offence of Conspiracy
As already noted above, direct evidence of the agreement is rarely available. In most cases, proof of conspiracy depends on inferences drawn from the conduct of the parties. In the case of Ongodia and Erima v. Uganda (1767) EA 137, this was amply demonstrated. The facts of the case were that on February 24, 1966, the two appellants arrived at the officer's mess at Entebe at about 2 p.m. The first appellant, Ongodia, in the presence of the second appellant, Erima, informed Anguram and Guweddeko in the Mess that war had broken out, that the army headquarters at Mbuya had been surrounded, and they had managed to escape. Ongodia asked Anguram if he had confidence in his platoon, and upon receiving an affirmative reply, asked Anguram to take his platoon to Baitababiri on the Kampala/Entebe Road and set up a roadblock to arrest the Prime Minister, Dr. Obote. Erima remained silent throughout the conversation but nodded his head from time to time. It was not established at what precise moment in the conversation he nodded his head.

The Judge Advocate in his direction stated that if the evidence of Anguram and Guweddeko was believed, the trial court could be justified in finding each appellant guilty of both charges (conspiring to set a roadblock with a view to arresting the Prime Minister and occasioning false alarm to the officer of the army).

The Court of Appeal held, on the first charge, that the evidence was sufficient to justify the inference that the first appellant, Ongodia, conspired with a person or persons unknown to arrange for a roadblock to arrest the Prime Minister, and the finding on the first charge was confirmed. It was also found that the evidence was insufficient to establish that the second appellant was acting in concert with the first appellant, and a finding of not guilty was substituted. On the second charge, both appellants were found not guilty for lack of sufficient evidence.

Other cases of conspiracy include Musinga v. R 18 EACA 211; Mulcahy v. The Queen (1868) 3 H.C. 306; R v. M attacks and Others 1971 (mimeo) (S.R.).

Hitherto, the lecture has concentrated on conspiracy to commit offences. This is not the only time when conspiracy can be committed. Section 386 of the Penal Code lists a range of other conspiracies punishable by law in Tanzania. These include agreements:

1. To prevent or defeat the execution or enforcement of any ordinance, statute, or order in council;
2. To cause any injury to the person or reputation of any person or to depreciate the value of any property of any person;
3. To prevent or obstruct the free and lawful disposition of any property by the owner thereof for its fair value;
4. To injure any person in his trade or profession;
5. To prevent or obstruct, by means of any act or acts which, if done by an individual person, could constitute an offence on his part, the free and lawful exercise by any person of his trade, profession, or occupation;
6. To effect any unlawful purpose; or
7. To effect any lawful purpose by unlawful means.

Evident from the case of Ongodia discussed above is the fact that one person may be convicted alone of conspiracy with persons who are unknown, not in custody, or deceased. However, if two persons are jointly charged for conspiring together, both must be convicted or acquitted. If two are acquitted, the third cannot be convicted.

Conclusion
Despite the varying views on inchoate offences, there is a general consensus that those who attempt to commit offences should be punished under certain circumstances. This has a deterrent effect on potential criminals. However, as noted, the law relating to conspiracy has many debatable issues, and it is expected to be refined in the course of practice. What is important is fair play in the administration of justice.

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The defence of insanity is grounded on the principle that due to a mental condition, the accused lacked mens rea at the time of committing the offense. Section 12 of the Penal Code presumes every person to be of sound mind unless proven otherwise.