Consultation Paper on Inchoate Offences - Law Reform Commission

(b)(i)Non-criminal unlawfulnessTorts3.47 In Parnell’s case 86 it was held that some conduct, merely tortiouswhen done by a single actor, is a criminal conspiracy when planned ororganised by multiple actors in concert. Kamara v DPP 87 is a more recentexample from England. In this case there was a conviction for conspiracy totrespass where the trespass in question was a non-criminal trespass.(ii)Breaching constitutional rights3.48 Geoghegan J in Hegarty v Governor of Limerick Prison 88 leftopen the question whether there can be a conspiracy to infringe a person‟sconstitutional rights. The Hegarty decision was decided on grounds otherthan this question. The applicant‟s case had failed on at least two grounds –the need to establish agreement and the need to establish that carrying outthis agreement would breach the applicant‟s constitutional rights – prior tothe issue of whether a breach of constitutional rights is unlawful for thepurposes of conspiracy. Hegarty should not be read as ruling out breach ofconstitutional rights constituting the unlawfulness aspect of conspiracy.(iii)Breaching competition law3.49 Connelly v Lochney 89 is a conspiracy case from the 1950s where itwas held that an agreement was not a criminal conspiracy because what wasdone pursuant to the agreement was neither criminal nor tortious. Theagreement in question was between members of a retailers‟ association torefuse to trade with the complainant for the reason that the complainant waspricing goods below the association‟s agreed minimum retail price. Thepractice of the retailers‟ association in setting up and attempting to enforce aprice fixing arrangement would be in breach of Irish competition law atpresent, though it was not in breach of the relevant trade union law of theday.3.50 Connelly clearly cannot be taken as authority suggesting breach ofcompetition law norms does not satisfy the unlawfulness element ofconspiracy. Horizontal price fixing is illegal in Ireland now; it was not in the1950s. Hence, what was not a conspiracy in the 1950s could be a conspiracynow given the development of competition law.86878889(1881) 14 Cox 508.[1973] 2 All ER 1242.[1998] 1 IR 412.(1953) 87 ILTR 49.91