Consultation Paper on Inchoate Offences - Law Reform Commission

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“[A]n agreement by two or more by dishonesty to deprive aperson of something which is his or to which he is or would be ormight be entitled and an agreement by two or more by dishonestyto injure some proprietary right of his, suffices to constitute theoffence of conspiracy to defraud.” 953.56 In Myles v Sreenan 96 the High Court rejected an argument thatconspiracy to defraud had not survived, due to vagueness, the enactment ofthe Constitution of Ireland.(2) Conspiracy to corrupt public morals3.57 In Attorney General (SPUC) v Open Door Counselling Ltd 97 theHigh Court was asked to declare that the conduct of the respondentorganisations constituted conspiracy to corrupt public morals. Theorganisations gave non-directive counselling to pregnant women and wereprepared to refer such women to abortion-performing clinics in England.Hamilton P remarked:“Such an agreement could constitute a conspiracy to corruptpublic morals as the defendants‟ services are available to thepublic and well-advertised.”But the Court would not declare that the alleged offence was beingcommitted, since it was a matter for a jury to decide based on the particularcircumstances of a case.3.58 In Attorney General (SPUC) v Open Door Counselling Ltd 98Hamilton P cited the House of Lords‟ decision in Knuller v DPP 99 as “clearauthority” that the offence “may be committed even when the agreement …is to assist in the commission of a lawful act.” 100 This helps reveal howconspiracy to corrupt public morals is a distinct free-standing offence andnot just an instance of relational conspiracy. This is because relationalconspiracy is restricted to agreements to do unlawful acts (or lawful acts byunlawful means); there is an essential “unlawfulness” component. Incontrast, what Knuller asserts and the SPUC case accepts, is that“unlawfulness” is not an essential component of conspiracy to corrupt publicmorals.9596979899100Scott v Metropolitan Police Commissioner [1975] AC 819; [1974] 3 All ER 1032,1039, per Viscount Dilhorne.[1999] 4 IR 294.[1988] IR 593; [1987] ILRM 477.[1988] IR 593; [1987] ILRM 477.[1973] AC 435; [1972] 2 All ER 898.[1988] IR 593; [1987] ILRM 477.93
3.59 The use of “lawful act” in the SPUC case could, however, be readas merely referring to the fact that the abortion procedures, though criminalin Ireland, were lawful in England provided certain conditions were met. 101But in light of Knuller and its approval in the High Court it is clear thatconspiracy to corrupt public morals really is an offence that is wider thancommon law conspiracy as a relational offence. The conduct consideredcapable of constituting conspiracy to corrupt public morals in Knuller wasthe publishing of information allowing adult male homosexuals to meet forsex. This publication was produced, and presumably planned, after thedecriminalization in England of sexual acts between adult males. Thefollowing passage of Lord Reid‟s judgment in Knuller was quotedapprovingly by Hamilton P in the SPUC case:“I find nothing in the Act to indicate that Parliament thought orintended to lay down that indulgence in these practices [sexualacts between men] is not corrupting. I read the Act [SexualOffences Act 1967] as saying that, even though it may becorrupting, if people choose to corrupt themselves in this way thatis their affair and the law will not interfere. But no licence isgiven to others to encourage the practice. So if one acceptsShaw‟s case 102 as rightly decided it must be left to each jury todecide in the circumstances of each case whether people werelikely to be corrupted.”3.60 So there is a zone where conduct though not criminal or in breachof any other area of law is still not to be – if one wishes to avoid being acriminal – encouraged or facilitated by two or more. How do people knowwhat conduct is in this twilight zone? The answer of the English and Irishcourts: where a jury would consider that in the circumstances such conductis “corrupting”. Case law suggests some qualities that might help pick outwhat this is: erstwhile illegality 103 or illegality elsewhere. 104(3) Other specific common law conspiracies(a)Conspiracy to outrage public decency3.61 In Knuller 105 the House of Lords inferred from a number ofdiscrete precedents (keeping a disorderly house, indecent exhibition, andothers) the existence of a general common law offence of outraging public101102103104105Those conditions set out in section 1(1) of the UK‟s Abortion Act 1967.Shaw v DPP [1962] AC 220.Knuller v DPP [1973] AC 435.Attorney General (SPUC) v Open Door Counselling [1988] IR 593.Knuller v DPP [1973] AC 435.94
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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
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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 110 and 111: (b)(i)Non-criminal unlawfulnessTort
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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