Consultation Paper on Inchoate Offences - Law Reform Commission

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3.12 The People (Attorney General) v Keane 22 illustrates how anagreement can be inferred from evidence of activity that has the appearanceof being done pursuant to agreed actions. Keane concerned prosecutions forconspiracy to cause explosions. 23 There was no direct evidence of anagreement between the alleged conspirators. But there was a notebook in thedefendant‟s (Keane‟s) handwriting containing diagrams and notes formaking explosives; Keane‟s finger-prints were on a box containing a bombtiming device found in the lock-up garage of a co-conspirator namedMurray; and at the premises of another co-conspirator named Longmorethere was found an explosives-making manual and a time-table with Keane‟sfinger-print on it. Walsh J in the Court of Criminal Appeal sums up the trialcourt‟s conclusion:“On this evidence the Court was satisfied that there was clearly anassociation between the parties concerned … and that it related tothe making of explosive devices and that the object of makingthese explosive devices was to cause explosions within theState.” 24Walsh J, in affirming the defendant‟s conviction, went on to say that therewas sufficient evidence on which to find the defendant conspired to causeexplosions with Murray, but not with Longmore.3.13 The Court of Criminal Appeal‟s holding in O’Connor andO’Reilly 25 and in Keane 26 is consistent with the common law practice asrevealed in the English cases and described by Dennis: “the existence of theagreement is invariably inferred from overt acts apparently performedpursuant to the agreement.” 27(b)Contact between conspirators3.14 Walsh J in The People (Attorney General) v Keane 28 stated it wasnot necessary for co-conspirators to have met in person in order for aconspiratorial agreement to be found. 29 This opinion accords with 19th2223242526272829(1975) 1 Frewen 392.Causing explosions being an offence under section 3 of Explosive Substances Act1883.(1975) 1 Frewen 392, 395.(1943) 1 Frewen 42.(1975) 1 Frewen 392.Dennis “The Rationale of Criminal Conspiracy” (1977) 93 LQR 39 at 40.(1975) 1 Frewen 392.(1975) 1 Frewen 392, 397.81
Century common law authorities, 30 which were endorsed by the SupremeCourt in Attorney General v Oldridge. 31 Keane CJ speaking for the Courtquoted the following passage of Coleridge J‟s judgment in R v Murphy withapproval:“It is not necessary that it should be proved that these defendantsmet to concoct this scheme, nor is it necessary that they shouldhave originated it. If a conspiracy be already formed, and aperson joins it afterwards, he is equally guilty.” 323.15 This holding has been affirmed in England 33 and is also consistentwith interpretations of the common law that acknowledge how third partiescan act as a “go between” thus there being no need for conspirators to havedirectly communicated with each other. American courts in purporting toapply the common law recognise “wheel” and “chain” conspiracies. 34 Awheel conspiracy involves a person in the middle acting as a go-between fora number of different participants. A chain conspiracy involves actors whomay have contact with only one other participant, but are still part of anoverall effort. 35(c)Tacit agreement3.16 The High Court in Hegarty v Governor of Limerick Prison 36indicated that a mere coordination of plans cannot satisfy the agreementrequirement for conspiracy. In that case the DPP became aware that therewas a problem with the lawfulness of the prisoner‟s detention. Having beenin communication with the gardaí, the prison authorities released theprisoner. The prisoner was then immediately re-arrested by the gardaíoutside the prison. Geoghegan J held that there was no conspiracy herebecause there was no agreement and, in any event, there was nounlawfulness element.3.17 In light of Hegarty Irish law on agreement in conspiracy hasdeparted slightly from interpretations of common law elsewhere. Dicta in30313233343536R v Murphy (1837) 173 ER 502; R v Rankin (1848) 7 St Tr (NS) 712, 787. But thereare older cases such as Attorny v Starling (1664) 83 ER 1164, 1167, 1179, 1184;implying the contrary: that is, that conspirators must have met in person at somestage.[2000] 4 IR 593; [2001] 2 ILRM 125.R v Murphy (1837) 173 ER 502. Approved by Keane CJ in Attorney General vOldridge [2001] 2 ILRM 125, 133.R v Doot [1973] AC 807, 823.United States v Bruno (1939) 105 F 2d 921.See Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at 301-302.[1998] 1 IR 412, 425.82
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Consultation <stro
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Law Reform CommissionTHE LAW REFORM
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Law Reform CommissionLaw Reform Res
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Law Reform CommissionContact Detail
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TABLE OF CONTENTSTable of Legislati
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TABLE OF LEGISLATIONAbortion Act 19
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Lajoie v R [1974] SCR 399 CanLeigh
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R v O‟Brien [1954] SCR 666 CanR v
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INTRODUCTIONABackground to the proj
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5. Inchoate offences do not exist i
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11. Chapter 1 explores the nature o
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CHAPTER 1INCHOATE LIABILITYAIntrodu
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its pure relational form as an agre
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D(1) LegalityCriminal law theory en
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1.16 Some textbook writers reverse
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one resulted in conviction by the j
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1.30 Evident here is a principled r
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excusatory defences 51legitimate de
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codifying inchoate offences will be
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called “the proximity rule” to
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Appeal, was because more than one i
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accused for which she stood trial a
Page 49 and 50: defendant had progressed well beyon
Page 51 and 52: And it is costly to try - police an
Page 53 and 54: and subsequently abolished in New Z
Page 55 and 56: “proximate” was more like “ne
Page 57 and 58: providing, bluntly, that attempting
Page 59 and 60: unlawful entry of a structure, vehi
Page 61 and 62: drafted by James Fitzjames Stephen,
Page 63 and 64: 2.68 The Law Commission for England
Page 65 and 66: crime; (2) an overt act toward the
Page 67 and 68: (3) D commits an offence or an act
Page 69 and 70: the Court of Criminal Appeal has ap
Page 71 and 72: activity. Purposive activity is int
Page 73 and 74: a Working Party assisting the Law C
Page 75 and 76: consequences/circumstances distinct
Page 77 and 78: inchoate liability) because such pr
Page 79 and 80: Oireachtas has sole law-making powe
Page 81 and 82: either label could be applied to a
Page 83 and 84: 2.135 Perhaps Walsh J, when imagini
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Page 87 and 88: man carried away his own umbrella d
Page 89 and 90: just to make it look like he would
Page 91 and 92: ii)Having an abandonment defence gi
Page 93 and 94: i) The would-be perpetrator had a c
Page 96 and 97: 3CHAPTER 3CONSPIRACYAIntroduction3.
Page 98 and 99: two or more persons involving resol
Page 102 and 103: the Brighton Conspiracy Case 37 sta
Page 104 and 105: Henchy J went on to state, obiter,
Page 106 and 107: conspiracy is exempt from liability
Page 108 and 109: Subsequently, in R v Anderson, 73 t
Page 110 and 111: (b)(i)Non-criminal unlawfulnessTort
Page 112 and 113: “[A]n agreement by two or more by
Page 114 and 115: decency, which has an ancillary inc
Page 116 and 117: where they will fall in.” The ice
Page 118 and 119: abolishing the latter but not the f
Page 120 and 121: G(a)Abandonment of a conspiracyThe
Page 122 and 123: 4CHAPTER 4INCITEMENTAIntroduction4.
Page 124 and 125: approach to that of the common law.
Page 126 and 127: (v)Incitement need not be directed
Page 128 and 129: verbs used to describe a physical a
Page 130 and 131: 4.23 It is noted that while the act
Page 132 and 133: direction. The analysis of criminal
Page 134 and 135: (iii)Inciting non-criminal conduct4
Page 136 and 137: encouragement or assistance will in
Page 138 and 139: Convention on Human Rights. 75 Inci
Page 140 and 141: conduct incited. This position was
Page 142 and 143: 5CHAPTER 5PROVISIONAL RECOMMENDATIO
Page 144 and 145: (4) Impossible conspiracies5.21 The
Page 146: The Law Reform Commission is an ind
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