Incohate Offences

The inchoate offences: attempt, conspiracy and incitement are concerned with the preparatory stages of other criminal offences. A person may be convicted of an inchoate offence even if the main offence was never actually committed: in some circumstances he or she may be guilty of an inchoate offence even if it would for some reason have been impossible to commit the complete offence. One of the reasons for the existence of inchoate offences is that without them the police would often have to choose between preventing an offence being committed, and prosecuting the offender – it would be ridiculous, for example, if they knew a bank robbery was being planned, and had to stand by and wait until it was finished before the robbers could be punished for any offence. All the inchoate offences are offences in their own right, but they can only be charged in connection with another offence, so a person would be charged with incitement to rob, on attempted murder, or conspiracy to blackmail, but not with ‘attempt’, ‘conspiracy’ or ‘incitement’ alone.

1. Attempt
2. Conspiracy

Section 4 of the criminal code provides a definition of attempt thus:

When a person, intending to commit an offence begins to put his intention into execution by means adapted to its fulfillment and manifests his intention by some avert act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is an offence to attempt to commit any offence. In certain offences, the punishment for an attempt is specified e.g life imprisonment for attempted murder (c.c.s. 320) or armed robbery with violence (c.c.s. 403).

There is one offence – (attempted suicide) – Where it is only the attempt which is criminal, a successful suicide is not an offence one who aids, counsels, or provides the attempt of a offence may himself be guilty of the offence of attempt. Since conspiracy is an offence there may be a conviction for attempted conspiracy.

Mens rea/the intent

The essence of the offence of attempt is intention. The acts of the accused person which may amount to the actus reus of an offence derive their significance from the accused’s intention. The acts, in themselves may appear to be innocent but when added to the accused is intention they constitute a crime. For example, if the lights a cigarette lighter beside a curtain in a restaurant this may or may not constitute attempted arson, depending on whether he does so intending to set fire to the curtains. It is therefore important that the prosecution must establishment the accused person intended to commit the offence which he is alleged to have attempted.

In R. V Seidu, the accused person could not be guilty of attempting to commit rape because he did not intend sexual penetration. Also, in R.V Offiong the accused entered a woman’s room uninvited, took off his clothes, expressed a desire for sexual intercourse upon the woman and actually caught hold of her. The court held that “these acts fell short of an attempt to commit rape – they are merely acts which indicate that the accused wanted to have and had made preparation to have connection with the complainant”.

There was no evidence that offiong intended to force the sexual intercourse upon the woman without her consent, and therefore this could not be attempted rape since intent to do it without the woman’s consent is of the essence in rape as defined in Section 357 of the criminal code. Since Section 4 requires proof of intent “to commit an offence”, and not merely intent to do an act which constitutes an offence, it is arguable that the rule that ignorance of the law is no excuse is excluded by necessary implication, and that the accused must know that what he is intending to do is an offence. Since an accused must intend to commit an offence, he cannot be guilty of attempting to commit a crime which can be committed only recklessly or negligently. Although murder can be committed merely by recklessness, it is not possible to be guilty of attempted murder by a reckless act – there must be an intention to kill.

In R. V Whybrow, the court of appeal held that although on a charge of murder, proof of an intention to course grievous bodily harm would suffile to establish mens rea, on a image of attempted murder “the intent” becomes the principal ingredient of the crime. According, it had to be proved that the accused intended to kill.

Actus reus

The three elements required to constitute the actus reus of attempt under section 4 of the criminal code are as follows:

1. That the accused had begun to put his intention into execution by means adapted to its fulfillment;
2. That he has not fulfilled his intention to such an extent as to commit the offence; and
3. That his intention be under manifest by some overt act.

With regard to (ii) above, once the accused person has fulfilled his intention to such an extent as to commit the offence the attempt merges in the successful crime. The proper charge would be to charge the accused for committing the substantive offence. Under (iii) above it is not required that the accused has done all that is necessary on his part for the completion of the substantive offence. The application of (i) and (iii) above is a bit complex. The real problem here is to determine at what stage one can stay that the accused person has attempted to commit the offence we shall now examine the approaches which have been adopted in England and in Nigeria at solving this problem.