PRONOUNCEMENTS ON THE INCHOATE OFFENCE OF CONSPIRACY BY JUSTICES OF THE SUPREME COURT OF GHANA by Seth DoE

STATE v. OTCHERE AND OTHERS [1963] 2 GLR 463-531

KORSAH C.J., VAN LARE AND AKUFO – ADDO JJ.S.C.

KORSAH CJ

The definition of conspiracy in our law is contained in section23 of the Criminal Code, 1960, and it is:

“(1) 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.

(2) A person within the jurisdiction of the Courts, can be guilty of conspiracy by agreeing with another person who is beyond the jurisdiction, for the commission or abatement of any crime to be committed by them or either of them, or by any other person, either within or beyond the jurisdiction; and for the purposes of this subsection as to a crime to be committed beyond the jurisdiction, ‘crime’ means any act which, if done within the jurisdiction, would be a crime under this Code or under any other enactment.”

We observe 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. Hence relying on the English authorities, a summary of the law of conspiracy is thus;

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.

Conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. It may be that the alleged conspirators have never seen each other, and have never corresponded, one may have never heard the name of the other, and yet by the law they may be parties to the same common criminal agreement.

A person who joins or participates in the execution of a conspiracy which had been previously planned would be equally as guilty as the planners even though he did not take part in the formulation of the plan or did not know when or who originated the conspiracy. 

In order to prove a conspiracy, the evidence may be either direct or circumstantial, but where it is sought to prove a conspiracy solely by circumstantial evidence, the evidence must be such that not only may an inference of conspiracy be drawn from it, but also that no other inference can be drawn from it. 

JOHN DAVID LOGAN FRANK DAVID LAVERICK vs. THE REPUBLIC 

[SUPREME COURT] APPEAL NO. J3/1/2006 DATE: 7TH FEBRUARY 2007. 

ANINAKWAH, J.S.C

Sections 23(1) of the Criminal Code, 1960 (Act 29) defines Conspiracy thus:- “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 to commit or abet that crime, as the case may be.

In conspiracy charges such as the one in our instant case where there is no direct evidence, the conspiracy therefore is as a matter of inference, to be deduced from the physical Criminal acts of the parties accused, done in pursuance of an apparent Criminal purpose in common between them.

FRANCIS YIRENKYI vs. THE REPUBLIC 

[SUPREME COURT, ACCRA] 

CRIMINALAPPEALNO.J3/7/2015 DATE:17TH FEBUARY,2016

DOTSE JSC 

It has already been stated that the definition of conspiracy under the criminal and other Offences Act, Act 29 of 1960 has been amended by the work of the Statute Law Review Commissioner. 

Under the old definition, the following ingredients of the offence of conspiracy had to be established to obtain a conviction. These were 

(1) Prior agreement to the commission of a substantive crime, to commit or abet that crime;

(2) Must be found acting together in the commissioning of a crime in circumstances which show that there was a common criminal purpose. 

(3) That there had been a previous concert even if there was evidence that there was no previous meeting to carry out the criminal conduct. 

Out of abundance of caution, let us refer to the old formulation under section 23 of Act 29 which states as follows:- 

“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.” 

The new section 23 of the Criminal Offences Act states as follows:- 

“If two or more persons agree to 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.” 

In this new formulation, the only ingredient that has been preserved is;(1) The agreement to act to commit a substantive crime, to commit or abet that crime. 

The new formulation no doubt reinforces the view that conspiracy is an intentional conduct. 

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.

The effect of conspiracy is that the persons must not only agree or act, but must agree to act together for common purposes. 

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. 

In our view therefore, the new formulation in section 23 (1) of Act 29 is the law on conspiracy in Ghana and until that formulation has been changed by constitutional amendment or recourse to the Supreme Court, the changes brought about by the work of the Statute Law Revision Commissioner are valid and remain the laws of Ghana. 

Where it is sought to prove a conspiracy solely by circumstantial evidence, the evidence must be such that, not only may an inference of conspiracy be drawn from it, but also that no other inference can be drawn from it.

When persons are charged and tried together on an offence of conspiracy, it would be inconsistent and bad in law for some of the accused persons to be acquitted and others convicted provided the evidence is the same

FAISAL MOHAMMED AKILU vs. THE REPUBLIC 

[SUPREME COURT, ACCRA] CIVIL APPEAL NO. J3/8/2013 DATE: 5 TH JULY, 2017

APPAU JSC 

From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime. In such a situation, the particulars of the charge normally read: “he agreed together with another or others with a common purpose for or in committing or abetting the crime”. 

However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime. 

This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime

RICHARD KWABENA ASIAMAH (APPELLANT) vs. REPUBLIC (RESPONDENT) 

[SUPREME COURT, ACCRA] 

CRIMINAL APPEAL NO. J3/06/2020 DATE: 4TH NOVEMBER, 2020

TORKORNOO (MRS.), JSC:-

The offence of conspiracy therefore requires agreement between at least two people to act with one purpose – committing or abetting a criminal offence. 

For prosecution to be deemed to have established a prima facie case, the evidence led without more, should prove that: 

1. That there were at least two or more persons 

2. That there was an agreement to act together 

3. That sole purpose for the agreement to act together was for a criminal enterprise

P.K Twumasi in his book “Criminal law in Ghana”, Ghana Publishing Corporation, 1985 at page 111 to page 112 states this on the law of conspiracy: “In conclusion, the legal position is that a conspiracy may be proved in one of two ways. The first mode of proof is by direct evidence which admittedly is very rare to obtain. Such evidence may be offered by a person who may have concurred in the conspiracy for the sole aim of detecting and punishing the actual conspirators or by the confession statements of some of the conspirators themselves, or by any eye witness account. The second and the most regular mode of proof is by establishing evidence of overt acts. The overt acts are done to carry out the criminal objective.”