The earliest stage at which liability can arise is where the offender commits incitement but suggesting the commission of an offense by another person.
This might be followed by conspiracy where two or more parties agree on the course of conduct which will result in the commission of an offense. And an offender who progresses beyond merely preparing to commit an offense may be guilty of an attempt.
It's important to note that the prosecution is at liberty to charge the offender with an inchoate offense even though he or she appears to have committed the completed crime.
Sometimes it's not advisable to charge the offender with both an inchoate and complete offense in respect of the same crime since it is likely to overload the charge.
Incitement.
It refers to instigating intentionally a person to commit a criminal offense.
The offense of incitement is provided under section 21 of the PCA which provides that a person who incites another to commit an offense whether or not an offense is committed is a party to the crime.
Forms of incitement.
A person commits an offense of incitement when he does the following;
Influencing the mind of another to commit a crime.
In incitement cases, it must be proved that the suggestion from the inciter has reached the mind of the incited.
However, there is no need to provide evidence that the incited acted on the suggestion.
In Race Relations Board -v- Applin CA ([1973] 1 QB 815).
The defendant members of the 'National Front' had conducted a campaign against a Mr. and Mrs. W (a white couple) fostering black children.
They had written threatening letters, distributed circulars, and held public meetings in an attempt to persuade the married couple to stop fostering black children.
The RRB sought a declaration that the defendants' acts were unlawful under s12 of the Race Relations Act 1968, which makes it unlawful to discriminate in the public provision of services, and an injunction restraining them from inciting a person to do an act that was unlawful under the 1968 Act.
It was held, by the Court of Appeal (Civil Division) that the defendants had 'incited' Mr. and Mrs. W, within s12 of the 1968 Act, to discriminate unlawfully.
The word 'incite' in s12 was not limited to advice, encouragement, or persuasion of another to do an act but included threatening or bringing pressure to bear on a person.
Accordingly, the defendants, bringing pressure to bear on Mr. and Mrs. W to take white children only, had 'incited' them to do so.
It followed that, since it would have been unlawful discrimination under the Act for Mr. and Mrs. W to take white children only, it was, by s12, unlawful for the defendants to invite them to do so.
Written or spoken words.
These may be in form of suggestions, proposals, persuasion, or threat. The offender can incite millions of others to commit offenses. E.g. through television broadcasts or newspapers.
Regina v Most (1881) 7 QBD 244.
A count on the indictment alleged that the defendant: knowingly and wickedly did encourage certain persons, whose names to the jurors were unknown, to murder certain other persons, to wit sovereigns and rulers of Europe.
The jury had been directed by Lord Coleridge CJ, that if they thought by the publication of the article the defendant did intend to, and did, encourage or endeavor to persuade any person to murder any other person, whether a subject of Her Majesty or not, or whether within the Queen's dominion or not, and that such encouragement and endeavoring to persuade was the natural and reasonable effect of the article they should find him guilty.
Held: the circulation to the world, to multitudes of persons wholly undefined, and to whom it would come, would be sufficient for the offense of incitement to stand.
It's important to note that incitement must be communicated since there can be no offense committed whether by words or written unless it reaches the person being incited.
Incitement may be express or implied e.g through an advertisement to the public.
Conspiracy.
Conspiracy refers to an agreement between two or more persons to effect unlawful purposes to effect the unlawful by unlawful means. Unlawfulness in this case means breaking the law.
Haris Pit Co. Ltd v Vitch 1942, AC Simon LC.
Stated that conspiracy when regarded as a crime is the agreement of two or more persons to effect any unlawful purpose whether as the ultimate aim or as a means to it.
The crime is complete if there is such an agreement.
The vital issue in the case of conspiracy is whether the partners were always working together with a union of mind for the accomplishment of a common purpose or common plan.
See R v Karia 16 EACA 116
Categories of people who can be convicted of conspiracy
- A person who enters into the conspiracy before it is achieved.
- A person who enters into the conspiracy after its completion.
- A person who enters into the conspiracy after the offense has been committed.
It should be noted that a person can withdraw from the conspiracy by notifying others that he or she no longer participates.
That person must do the withdrawal before the time of carrying out the purpose of the crime.
To escape liability, a person declares his intention to withdraw but must take positive steps to show that he no longer participates e.g informing the police.
Proof of conspiracy
It can be proved by showing that by their acts; the accused persons pursued the same object. i.e. one performing one part and another different part with a view of attaining the same results.
Section 9 of the Evidence Act Cap 6 allows the admission of anything said by one of the conspirators against the other.
The acts or words of one are taken to be those of the other.
However, this happens when the acts or words are in the furtherance of the common purpose.
Exceptions in the law of conspiracy
A husband and wife cannot conspire. Thus if those two agree to carry out an unlawful act, they cannot be charged with conspiracy.
The director of Person Company cannot be convicted of conspiracy.
If one of the conspirators is acquitted and there were two more of them, the others must also be acquitted.
One individual cannot be convicted of conspiracy with an unknown.
See
India & Erima v Uganda [1967] EA 137
The accused and another were junior officers in the Uganda army and were charged with conspiracy to man a roadblock on Entebbe Kampala road.
It was held that although the words he used showed conspiracy with an unknown person, he could not be charged with an unknown person.
See R v Jamadha 13 EACA 147
Note that several sections in the PCA provide for conspiracy as an offense. See part 40 of the Act.
Attempt
An attempt is an act done with intent to commit a crime and forming part of the series of the act which constitutes a crime if not interrupted. Penal Code part 40 provides for attempts.
An attempt to commit a crime is an act that is immediately connected with the commission of a crime.
When an act is done to commit a crime in a manner impossible, it is not an attempt.
However, there can be an attempt to commit a crime in the circumstances.
Edward s/o Michael v R [1948] 1 TLR 308.
The accused was charged with attempting to sell the diamond.
He didn't know that what he was trying to sell were not diamonds but pieces of glass. He was convicted of attempting to sell diamonds.
For one to be convicted of an attempt, he or she must have done all acts tending to the commission of an attempt.