Can You Be Guilty of a Crime That Never Happened? Understanding Attempt, Conspiracy and Abetment Under Ghanaian Law

Most people believe that the law only punishes someone after a crime has been committed. But is that true? Can you be arrested for trying to commit a crime even if you failed? What if you agreed with someone else to commit an offence but never carried it out? What if you only encouraged or helped another person commit a crime without doing it yourself?

Well under Ghanaian law, certain conduct can be criminal even before the main offence is completed. These offences are known as INCHOATE OFFENCES. Although the intended crime may never happen, the law recognises that some acts create such a serious risk that they deserve punishment on their own.

This article explains the four main inchoate offences under the Criminal Offences Act, 1960 (Act 29): attempt, conspiracy, preparation and abetment, while answering some of the questions people frequently ask.

What Are Inchoate Offences?

An inchoate offence is an incomplete offence. It refers to conduct that is directed towards committing a crime, even though the intended offence is never completed. The purpose of criminalising inchoate offences is to prevent serious crimes before they occur.

Every crime usually involves different stages. A person may first think about committing an offence, make plans, prepare for it and eventually carry it out. The law does not punish a person’s thoughts alone. However, once those thoughts develop into certain criminal acts, liability may arise even if the main offence never happens.

Under Ghanaian law, the principal inchoate offences include:

1.  Attempt (Section 18 of Act 29)

2. Preparation for certain offences (Section 19)

3.  Abetment (Section 20)

4. Conspiracy (Section 23)

Attempt

Under Section 18 of the Criminal Offences Act, 1960 (Act 29), a person who attempts to commit a crime may still be convicted even where the crime could not be completed because of the circumstances or the means used. In general, an attempt is punishable in the same manner as if the offence had been completed. However, this does not necessarily mean the offender receives the exact same sentence as a person who completed the offence, unless the Act provides otherwise. The law distinguishes between preparation and attempt because people may prepare for something and later change their minds. Once a person’s actions clearly move towards committing the crime itself, the law may treat those actions as an attempt.

For example, suppose a person points a loaded gun at another person and pulls the trigger intending to kill them, but the gun jams. Although no death occurs, that person may still be guilty of attempted murder because they did everything necessary to commit the offence except for circumstances beyond their control.

In the same light, suppose another person plans to kill someone, purchases a weapon and makes arrangements to carry out the plan, but later changes their mind and never takes any further step towards attacking the intended victim. That conduct may amount to preparation in some circumstances, and it does not necessarily amount to attempted murder because the person has not yet begun executing the crime itself.

Conspiracy

Conspiracy is different from attempt. Under Ghanaian law, conspiracy generally arises where two or more persons agree to commit a criminal offence. The agreement does not have to be written or expressly stated. A court may infer the existence of a conspiracy from the conduct of the parties and the surrounding circumstances. Where individuals act together in a coordinated manner towards a common criminal purpose, that may be enough to establish the conspiracy required by law.

This principle was illustrated in Joyce Sarfoa & 2 Others v Republic [2024], where the High Court inferred a conspiracy from the coordinated conduct and roles played by the accused persons.

This means that the prosecution does not necessarily have to prove that the planned crime was eventually carried out. Once there is sufficient evidence that the parties agreed to commit the unlawful act, criminal liability may arise.

For example, if two friends agree to rob a jewellery shop next weekend and begin discussing how they will do it, they may be guilty of conspiracy even if they are arrested before the robbery takes place.

Abetment

Not everyone involved in a crime is the person who actually commits it. Sometimes a person helps, encourages, advises or persuades another person to commit an offence. Under Section 20 of Act 29, this is known as abetment.

A person may commit abetment by:

1.  instigating another person;

2.  commanding or directing another person;

3.  counselling or advising another person;

4.  procuring weapons or arranging the commission of the offence;

5.  intentionally aiding or assisting another person;

6. encouraging or promoting the commission of the offence.

For instance, if Kofi gives his friend a gun knowing that it will be used to rob a bank, Kofi may be guilty of abetment even though he never entered the bank himself.

Likewise, a person who deliberately waits in the getaway car to help offenders escape may also be criminally liable. In R v Dunnington, the accused waited in the getaway vehicle while others attempted to rob a store. Although the robbery failed, he was properly convicted for his role in assisting the attempted robbery.

However, there are limits. In Iddi v Republic [1980] GLR 623–629, the court explained that where the alleged principal offender is acquitted because no crime was committed at all, a conviction for abetting that same offence cannot stand.

The Differences

Although these offences are closely related, they are not the same.

 Attempt means you try to commit the offence yourself but fail and Conspiracy means two or more people agree to commit a crime while Abetment means you intentionally help, encourage, advise or assist another person to commit a crime.

The key difference is that attempt focuses on your own actions, conspiracy focuses on the agreement between parties, while abetment focuses on helping someone else commit the offence.

Preparation

Many people assume that buying equipment or making plans automatically amounts to a criminal offence. That is not always the case.

Generally, mere preparation is not enough to constitute an attempt. However, this does not mean preparation is always lawful. Under Section 19 of Act 29, certain preparatory acts are criminal, particularly where a person prepares or possesses instruments or materials with the intention of using them to commit offences likely to endanger life, forgery or other felonies.

In other words, while preparation is usually not punishable, Ghanaian law recognises that some forms of preparation are so dangerous that they attract criminal liability.

Punishment

The punishment for inchoate offences depends on the offence involved and the punishment attached to the intended crime under the Criminal Offences Act, 1960 (Act 29).

For attempt under Section 18, a person may be punished in the same manner as if the offence had been completed, unless the law provides otherwise. For preparation under Section 19, certain preparatory acts relating to serious offences are punishable in the same manner as an attempt. Under Section 20, an abettor may generally receive the same punishment as the principal offender where the offence is committed, subject to exceptions provided by law. Conspiracy under Sections 23 and 24 also attracts punishment depending on the offence agreed upon.

This means that the punishment is not fixed for all inchoate offences. It depends on the seriousness of the intended crime. For example, an attempt to commit murder will attract a different punishment from an attempt to commit a less serious offence like stealing.

Why does the law Punish inchoate (incomplete) offences?

One may think it is unfair to punish someone for a crime that was never completed. However, the law recognises that waiting until harm has occurred may expose the public to unnecessary danger. By criminalising attempts, conspiracies, abetment and certain preparatory acts, the law seeks to prevent serious offences before they are carried out while holding accountable those who intentionally set criminal conduct in motion.

Frequently asked questions.

Can I be arrested even if the crime never happened?

Yes. Depending on the circumstances, you may still be liable for attempt, preparation, conspiracy or abetment even though the intended offence was never completed.

Is planning a crime illegal?

Simply thinking about committing a crime is not an offence. However, where planning develops into a criminal agreement between people (conspiracy), unlawful preparation under Section 19, or an attempt to commit the offence, criminal liability may arise.

What’s the difference between planning and attempting a crime?

Planning involves preparation. Attempt begins when your actions move beyond preparation and directly towards committing the offence.

What if I changed my mind before committing the offence?

It depends on how far your actions had gone. If the offence of conspiracy, attempt or abetment had already been completed, merely changing your mind later may not necessarily exonerate a person from criminal liability.

Can messages be used to prove conspiracy?

Yes. Like other forms of evidence, WhatsApp messages, text messages, emails and phone records may be relied upon where they are relevant and lawfully obtained to establish an agreement between parties.

If I only drove the getaway car or supplied the weapon, am I guilty?

In most cases, yes. If you knowingly assisted the commission of the offence by being a getaway driver or intentionally supplying a weapon to help another person commit a crime, you may be liable for abetment or another applicable offence depending on the facts.

Conclusion

Inchoate offences demonstrate that Ghanaian criminal law is not only concerned with punishing completed crimes but also with preventing serious offences before they occur. Whether it is attempting to commit a crime, agreeing with others to commit one, or intentionally helping someone else carry it out, the law may impose criminal liability even if the intended offence never happened. In Ghanaian criminal law, responsibility may begin long before the final act is completed.