Consultation Paper on Inchoate Offences - Law Reform Commission

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(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
(iv)Breaching contract3.51 There is no case law establishing that breach of contract sufficesfor the unlawfulness aspect of conspiracy. 90 A number of conspiracy todefraud cases, however, involve what might be described as agreements tobreach contract. 91(v)Breaching European Union law3.52 There are no cases on whether breaching EU law constitutes theunlawfulness aspect of conspiracy. The question here is perhapsmisconceived. The EU is a source of law rather than a type of law. Thequestion to ask in assessing whether conspiracy can attach to any particularlaw that comes ultimately from the EU is what type of law it is? If it is acriminal offence then clearly its breach satisfies the unlawfulnessrequirement.DSpecific common law conspiracies3.53 There are a number of specific common law conspiracy offences.Conspiracy to defraud is a leading example. These conspiracy offencesdiffer from conspiracy as a relational offence, the latter being the focus ofthis Chapter. Whereas conspiracy as a relational offence attaches to yet-tobe-identifiedspecific unlawfulness (from the general sphere ofunlawfulness), the specific conspiracies are free-standing and set out inadvance what they attach to, albeit without much precision.3.54 It is useful, perhaps indispensable, to consider the specificconspiracies when considering conspiracy as a relational offence because theconcept of agreement is the same for both, and the arguments for and againstrestricting conspiracy are applicable to both.(1) Conspiracy to defraud3.55 The Irish superior courts have repeatedly affirmed in recent yearsthe existence of the common law offence of conspiracy to defraud. 92 Thefollowing definition was endorsed by the High 93 and Supreme Courts: 949091929394Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at 308.R v Cooke [1986] AC 909.O'Sullivan v Conroy, Barr J, High Court, 31 July 1997; Myles v Sreenan [1999] 4 IR294; AG v Oldridge [2000] 1 IR 593; [2001] 2 ILRM 125; People (DPP) v O’BrienCCA 17 June 2002.Myles v Sreenan [1999] 4 IR 294.Attorney General v Oldridge [2000] 1 IR 593; [2001] 2 ILRM 125.92
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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
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“proximate” was more like “ne
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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 106 and 107: conspiracy is exempt from liability
Page 108 and 109: Subsequently, in R v Anderson, 73 t
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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