CHAPTER II — GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

PART 7—EXTENSIONS OF CRIMINAL RESPONSIBILITY
(ATTEMPTS, COMPLICITY, INCITEMENT ETC.)

Attempt

44.— (1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) for the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) Subject to sub-section (7), for the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

(4) A person may be found guilty even if—

(a) committing the offence attempted is impossible ; or
(b) the person who actually committed the offence attempted is found not guilty.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(8) It is not an offence to attempt to commit an offence against section 45 (complicity and common purpose), section 49 (conspiracy to commit an offence) or the offence of conspiracy to defraud.

Complicity and common purpose

45.— (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) for the person to be guilty—

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person ; and
(b) the offence must have been committed by the other person.

(3) Subject to sub-section (6), for the person to be guilty, the person must have intended that—

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed ; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person—

(a) terminated his or her involvement ; and
(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either—

(a) is guilty of a particular offence otherwise than because of the operation of sub-section (1) ; or
(b) is guilty of that offence because of the operation of sub-section (1)—
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.

Offences committed by joint offenders in prosecution of common purpose

46. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Innocent agency

47. A person who—

(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element ; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it -
is taken to have committed that offence and is punishable accordingly.

Incitement

48. – (1) A person who urges the commission of an offence is guilty of the offence of incitement.

(2) Subject to sub-section (5), for the person to be guilty, the person must intend that the offence incited be committed.

(3) A person may be found guilty even if committing the offence incited is impossible.

(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(5) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(6) It is not an offence to incite the commission of an offence against section 44 (attempt), this section or section 49 (conspiracy).

(7) The penalty for an offence against this section shall be—

(a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years ; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years ; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years ; or
(d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser ; or
(e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.

Conspiracy

49.— (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) Subject to sub-section (8), for the person to be guilty—

(a) the person must have entered into an agreement with one or more other persons ; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement ; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(3) A person may be found guilty of conspiracy to commit an offence even if—

(a) committing the offence is impossible ; or
(b) the only other party to the agreement is a body corporate ; or
(c) each other party to the agreement is at least one of the following—
(i) a person who is not criminally responsible ;
(ii) a person for whose benefit or protection the offence exists ; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.

(4) A person cannot be found guilty of conspiracy to commit an offence if—

(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal ; or
(b) he or she is a person for whose benefit or protection the offence exists.

(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person—

(a) withdrew from the agreement ; and
(b) took all reasonable steps to prevent the commission of the offence.

(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(8) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(9) Proceedings for an offence of conspiracy require the consent of the Director of Public Prosecutions.

(10) A person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent under sub-section (9) has been given.

Article 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.