Consultation Paper on Inchoate Offences - Law Reform Commission

abolishing the latter but not the former category of conspiracy. This is sobecause conspiracy as a general relation offence attaching to all offences willstill catch the former category of agreements to do criminal fraudulent acts.(a)Conclusion3.74 The arguments in favour of restricting conspiracy to agreementsto do criminal, as opposed to merely unlawful, things are compelling. Asthings stand, a non-criminal activity can be held by the Courts to becomecriminal when agreed to be done by two or more actors. This offends thelegality principle because there is a lack of advance notice of what it iscriminal to do. It also offends the Irish Constitution‟s democratic principlethat the Oireachtas has exclusive law-making power since it is the courts andnot the Oireachtas that decides which unlawful, though non-criminal,activity it is a conspiracy to agree to do. For consistency, restrictingconspiracy in this way should be accompanied by an abolition of the specificcommon law conspiracies. In this regard, however, special considerationsapply to conspiracy to defraud.3.75 The Commission provisionally recommends that conspiracy belimited to agreements to do criminal acts and that the common law offencesof conspiracy to corrupt public morals, to outrage public decency, and toeffect a public mischief be abolished.3.76 The Commission invites submissions on whether conspiracy todefraud should be retained.F(a)Impossible conspiraciesThe current position3.77 An impossible conspiracy describes where there is agreement todo something unlawful (whether the unlawful thing is an end or a means),but circumstances are such that it is simply not possible for that particularunlawful thing to be done.3.78 There is no Irish case addressing an impossible conspiracy, butthere is English authority on the common law position. In DPP v Nock andAlsford 126 the House of Lords held that at common law there was no liabilityfor conspiring to do a specific criminal act that was in the circumstancesimpossible. In Nock the defendants admitted that they intended to extractcocaine from a white powder in their possession. The white powder,contrary to the defendants‟ belief, could never yield cocaine. The House ofLords held that, because the agreement was specific to extracting cocainefrom the particular batch of white powder, the defendants could not be126[1978] AC 979.99