Consultation Paper on Inchoate Offences - Law Reform Commission

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conspiracy is exempt from liability (for example, a defence of duress isavailable) or is a legally protected person (as in the elopement exampleabove) and, on the other hand, the situation where one party to a conspiracysimply lacks criminal capacity (for example, a child below the age ofcriminal responsibility). The rule for the first situation is that liability forconspiracy can attach to the party who is not in the legally protected class ofpersons. This restates R v Duguid. 63 The Law Commission for England andWales now proposes that all parties here be liable for conspiracy, but that thepersons exempt from liability for the target offence would have a defence. 643.32 The current rule in England and Wales 65 for the second situationabove involving the child incapable of crime is that neither party can beliable for conspiracy. This is rationalised by the Law Commission forEngland and Wales as flowing from the fact that conspiracy, the essence ofwhich is a meeting of minds, cannot exist where only one mind has thecapacity for crime. 66 Some other offence needs to be relied on to catch thenon-morally innocent party.3.33 The Commission sees no need to provisionally recommend otherthan a rationalisation of what is most likely the current law in Ireland.3.34 The Commission provisionally recommends that conspiracy notbe made out where only one party to it has criminal capacity.3.35 The Commission provisionally recommends that exemption fromliability for the target offence of a conspiracy on the part of one or moreparties should not cause other parties to the conspiracy to escape conspiracyliability.(2) The mens rea of conspiracy3.36 A conspiracy is an agreement to do something unlawful. Theagreement must be entered intentionally and with knowledge or belief ofwhat the agreement is about. Furthermore, there must be intention that theagreement be carried out. Ormerod 67 thus suggests three aspects make upthe mens rea of conspiracy:6364656667(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 paragraph 10.31.Section 2(2)(b) of the Criminal Law Act 1977.Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at 150-151.See Ormerod Smith & Hogan: Criminal Law (11th Ed Oxford University Press 2005)at 374-382. Ormerod is concerned to describe the current law in England and Wales,87
i) Intention to enter the agreement (intention to agree).ii)iii)(i)Knowledge or belief of the circumstances of carrying out theagreement and what the agreement entails (knowledge).Intention that the details of the agreement or plan be carried out(intention to succeed).Intention to agree3.37 Irish courts have not had occasion to spell out this requirementexpressly. It has been taken as given that conspirators must intend to agreeto the unlawful enterprise. That is, it is not sufficient that they nod theirhead at the appropriate time and thus give the outwards appearance ofagreement if they do not truly intend to agree. Here, as in other respects,agreement in conspiracy differs from agreement in contract law. TheCanadian courts have expressly isolated this aspect of the mentalrequirements for conspiracy, saying it is essential for conspiracy that theconspirators have intention to agree. 68(ii)Knowledge3.38 The conspirator does not have to know or believe that what isbeing contemplated is actually unlawful or that merely agreeing to it iscriminal since, as ever in criminal law, ignorance of the law is no excuse.And “[i]t does not matter how prosaic the unlawful act may be or howignorant the conspirators may be of the fact that the act is prohibited by [ ]statutory provision.” 69 In other words, the knowledge requirement applies tofacts (the content of the agreement and the circumstances in which it is to becarried out), not law. Complete or extensive knowledge of the details of theplan is not required to satisfy the knowledge requirement. 70(iii)Intention to succeed3.39 It has been suggested that the conspirator must intend theagreement to be carried out. 71 This means that the conspirator must intendthat the consequences the agreement specifies (to be brought about) actuallyhappen, not just that agreement happens. The House of Lords, interpretingthe common law, insisted on this element in Churchill v Walton. 726869707172which is covered by statute. His classification, however, applies aptly to the commonlaw.O’Brien [1954] SCR 666, 668.Per Asquith J in Clayton (1943) 33 Cr App R 113, 119.R v Porter [1980] NI 18.Mulcahy (1868) LR 3 HL 306, at 317; Yip Chiu-cheung [1994] 2 All ER 924.[1967] 2 AC 224.88
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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
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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 104 and 105: Henchy J went on to state, obiter,
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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