Consultation Paper on Inchoate Offences - Law Reform Commission

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Henchy J went on to state, obiter, that the rule was invalid for inconsistencywith the Constitution‟s equality guarantee 49 due to the rule‟s presuppositionof a wife‟s inferior status. 503.26 In United States v Dege 51 the US Supreme Court declined to applythe common law rule that spouses cannot conspire together. The rule waspreserved in England and Wales in the Criminal Law Act 1977, 52 but theLaw Commission for England and Wales has recently called for itsabolition. 533.27 The marital coercion rule necessarily presupposes that a wife hasan inferior status to her husband; the spousal immunity rule does not. Thespousal immunity rule, therefore, does not offend equality to the same extentas the marital coercion rule. 54 Nevertheless, it is anomalous that a marriedcouple should be exempt from conspiracy liability. There seems to be noexplanation available beyond the outdated notion of husband and wife as asingle entity. It is not thought that agreements between spouses to pursuecrime was intended to be protected under the constitutional right to maritalprivacy recognised in McGee v Attorney General. 55 The Constitution hasbeen interpreted as requiring a certain amount of privilege forcommunications within marriage. 56 This may have implications for mattersof evidence, but does not impact on substantive liability. If there is anargument that the spousal immunity rule is required by the constitutionalprotection of marriage, it will have to address Murray v Ireland. 57 InMurray v Ireland the Supreme Court held that the constitutional rightsflowing from marriage were suspended on imprisonment for the commissionof crime. This implies that marriage rights may be limited in order to secure495051525354555657Article 40.1.Henchy J also suggested the rule had been “swept away by legislation and by judicialdecisions”: [1981] IR 412, 449.(1960) 364 US 51.Section 2(2)(a).Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at paragraphs 9.28-9.29.The same could be said about the common law rule of evidence that one spouse wasnot a competent witness against the other, yet the Court of Criminal Appeal in ThePeople (DPP) v T (1988) 3 Frewen 141 indicated that this rule would beunconstitutional. See Hogan and Whyte Kelly: The Irish Constitution (4 th edLexisNexis 2003) at 1842. See also Law Reform Commission Report on Competenceand Compellability of Spouses as Witnesses (LRC 13 – 1985).[1974] IR 284.Attorney General for England and Wales v Brandon Book Publishers Ltd [1986] IR597.[1985] IR 532 (High Court), [1991] ILRM 465 (Supreme Court).85
the operation of criminal justice. Codification presents an opportunity foreliminating uncertainty about the existence of the spousal immunity rule byexpressly abolishing it.3.28 The Commission provisionally recommends the abolition of therule that spouses cannot conspire together.3.29 The common law provides limited guidance on whether there is aconspiracy where one of the two parties (assuming a two person conspiracyfor explanatory purposes) is exempt from liability for the target unlawful act.For example, where a man and an underage girl plan (that is, conspire) toelope together, the girl cannot be liable for the target offence of abduction,the man can. The common law is unclear as to the girl‟s potential liabilityfor conspiracy. In R v Whitechurch 58 it was held that a non-pregnant women(under section 58 of the Offences Against the Person Act 1861 a nonpregnantwomen cannot be liable for attempting to procure her ownmiscarriage) could be guilty of conspiracy to procure an abortion. Thissuggests that a person who cannot be guilty of a target offence can be guiltyfor conspiring to commit the target offence. 59 An important principle thatwas not applicable in the Whitechurch case, but would apply in the exampleof the underage girl eloping, is that offences which exist for the protection ofa certain class of person should not be applied so as to criminalise that classof person. 60 This principle indicates that the girl in the elopement examplewould not be liable for conspiring to commit the crime of abduction sincethe crime of abduction is there to protect the girl.3.30 The more important question from a practical point of view iswhether the man in the abduction scenario may be guilty of conspiracy. Theanswer at common law is that the man may indeed be guilty of conspiracy.In R v Duguid 61 the court affirmed the defendant‟s conviction (forconspiracy to take a child aged under 14 years out of the possession ofwhoever was legally guarding the child) even though the defendant‟s coconspirator(the child‟s mother) was statutorily immune from prosecution forthis offence.3.31 The Law Commission for England and Wales has helpfullydistinguished 62 between, on the one hand, the situation where one party to a5859606162(1890) 24 QBD 420.See Dennis “The Rationale of Criminal Conspiracy” (1977) 93 LQR 39 at 54-55.R v Tyrrell [1894] 1 QB 710, R v Whitehouse [1977] QB 868.(1906) 75 LJKB 470, described by Dennis “The Rationale of Criminal Conspiracy”(1977) 93 LQR 39 at 55.Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at 144-152.86
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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
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defendant had progressed well beyon
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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
Page 85 and 86: subjectivist approach to impossibil
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 100 and 101: 3.12 The People (Attorney General)
Page 102 and 103: the Brighton Conspiracy Case 37 sta
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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Consultation Paper on Inchoate Offences - Law Reform Commission

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