Consultation Paper on Inchoate Offences - Law Reform Commission

convicted. Lord Scarman stated obiter that had the agreement been moregeneral – for example, an agreement to enter into a general cocaineproducingbusiness together – a conviction for conspiracy could lie. Thiswas so since the goal of this (more general) agreement would not beimpossible in virtue of the particular white powder having no capacity toyield cocaine. 1273.79 In The People (Attorney General) v Sullivan 128 there is obiterdictum suggesting an impossible attempt is still an attempt. Sullivan couldbe cited in support of a claim that impossible conspiracies are stillconspiracies in Irish law. For suppose that the defendant in Sullivan had notbeen acting alone but had been in cahoots with someone in her efforts to getextra pay through deception. It is difficult to imagine the Supreme Courthaving being more indulgent to the defendant had she been acting pursuantto an agreement than they were to her when she was acting alone. In sum, inlight of Supreme Court dictum in Sullivan, for the law on inchoate offencesto be consistent, the position in Ireland regarding impossible conspiracies isthat they are still conspiracies. This is at odds with the interpretation of thecommon law applied in England, as outlined above. 129 It is noted that statutein England and Wales now criminalises impossible conspiracies.(b)The debate about impossible conspiracies – conclusion3.80 It is noted that debate about impossibility regarding inchoateoffences invariably focuses on attempt. 130 Considerations for conspiracy andfor incitement flow from the analysis of attempt.3.81 There is much attraction in the common sense approach that aconspiracy is a conspiracy and just because circumstances beyond theknowledge of the conspirators mean that the specific criminal plan will notbe realised does not change this. So called impossible conspiracies shouldstill be criminal. Where what the would-be conspirators plan to do is notreally criminal (or unlawful) even though they think it is, the definition ofconspiracy is simply not made out and, therefore, the notion of impossibilityis not needed to prevent liability from attaching.3.82 The Commission provisionally recommends that impossibilityshould not bar liability for conspiracy.127128129130[1978] AC 979, 996.[1964] IR 169.At paragraph 3.78.See discussion above at paragraphs 2.129-2.152.100