Consultation Paper on Inchoate Offences - Law Reform Commission

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G(a)Abandonment of a conspiracyThe position at common law3.83 Abandoning a conspiracy refers to where one or more of theparties to a conspiracy withdraw or discontinue agreeing to, or being a partyto, the conspiracy. The question is whether this means they (thewithdrawing parties) have a defence to, or are otherwise not liable for,conspiracy. As with impossible conspiracies the position in Irelandregarding abandoned conspiracies is unclear. The parallel inference to thatmade above 131 can be made: because the Supreme Court in Sullivan 132 stated,obiter, that an abandoned attempt is still an attempt, so too abandonedconspiracies are still conspiracies. This position would accord with thedominant common law position.3.84 The arguments for and against allowing a defence ofabandonment for attempt are relevant to conspiracy. But there is animportant consideration relevant to whether the law should allow a defenceof abandonment for conspiracy that is not present regarding abandonedattempts. For the most part, with attempts a simple discontinuance of theattempt means the substantive offence will not come about. If the actorabandons her effort, yet the substantive offence nonetheless occurs, then acharge for the substantive offence, rather than for attempting it, isappropriate. This is obvious; it is mentioned here merely to emphasise thatthe law on abandoning attempt does not really have to cover the situationwhere an abandoned attempt nonetheless results in the target offenceoccurring. But with conspiracy, and incitement for that matter, simplewithdrawal might have no effect in stopping the substantive offence (orunlawful acts) from happening, since the other parties involved maycontinue on towards the target. The way to account for this factor is tostipulate that in order to quality for an abandonment defence thewithdrawing party must not merely withdraw but must take a positive steptowards preventing the completion of the substantive offence or unlawfulacts. Indeed this consideration can be seen at work in section 5.03(6) of theModel Penal Code, which provides:“It is an affirmative defence that the actor, after conspiring tocommit a crime, thwarted the success of the conspiracy, undercircumstances manifesting a complete and voluntary renunciationof his criminal purpose.”131132See above at paragraph 3.79.[1964] IR 169.101
3.85 Under the MPC it is not enough to make an effort to prevent theaim of the conspiracy being realised; it is required to achieve the result ofpreventing it, and furthermore, the conspiracy must have failed preciselybecause of the withdrawing party‟s work to foil it. In contrast, for attemptunder the MPC, it is a defence that the actor “abandoned his effort to committhe crime or otherwise prevented its commission”. It is noted that it is notessential to make the abandonment defence for conspiracy as exacting as it isin the MPC. Nevertheless, the MPC model has the advantage (from thepoint of view of being relatively acceptable to those who adhere to thecommon law position) that, insofar as it allows for only a very restrictivedefence, its adoption does not represent a radical change from the commonlaw position where there is no such defence.(b)Conclusion3.86 As with attempt, 133 it may in principle be desirable to have a lawon conspiracy that takes account of abandonment. But for conspiracy,simple abandonment is not sufficient to deserve exculpation. Also, theoption open with attempt regarding building in the absence of abandonmentinto its positive definition is not open for conspiracy. Accordingly, anaffirmative defence along the lines of the MPC provision is the relevantoption.3.87 The Commission invites submissions on whether there should be adefence available to a charge of conspiracy for thwarting its success.133See above at paragraphs 2.153-2.163.102
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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
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drafted by James Fitzjames Stephen,
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2.68 The Law Commission for England
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crime; (2) an overt act toward the
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(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 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 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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