Consultation Paper on Inchoate Offences - Law Reform Commission

More documents

Recommendations

Info

4CHAPTER 4INCITEMENTAIntroduction4.01 It is a criminal offence to incite a crime. In Ireland the commonlaw offence of incitement 1 has been left unaltered by statute, though newincitement offences, such as incitement to hatred, have been enacted. 2Incitement to hatred, however, is not an instance of common law incitementas there is no crime of hatred and common law incitement attaches only tocrimes.BThe components of incitement4.02 The actus reus of incitement is the act of inciting, acommunication to someone else that seeks to persuade or pressure them tocommit a crime. The mens rea of incitement is intention that the incitementbe acted upon. For the purpose of discussing incitement this <strong>Paper</strong> will referto the person delivering the incitement as the incitor and the intendedrecipient will be referred to as the incitee. It is key to note that the inciteedoes not have to act upon the incitement. If the incitee does indeed performthe incited crime, the incitor may be in turn be liable for that crime viasecondary liability. Nor does the incitee even have to be influenced in anyway towards committing the incited crime. 3(1) The actus reus of incitement(a)Commanding, encouraging or requesting4.03 A much quoted judicial passage from South Africa illustrates thebreadth of the actus reus of incitement:“An inciter ... is one who reaches and seeks to influence the mindof another to the commission of a crime. The machinations ofcriminal ingenuity being legion, the approach to the other's mind123R v Higgins (1801) 2 East 5 is the seminal case recognising incitement as an offence.See Scott “The Common Law Offence of Incitement to Commit Crime” (1975) 4Anglo-Am L Rev 289.Prohibition of Incitement to Hatred Act 1989.People (DPP) v Murtagh [1990] 1 IR 339, 342.103
may take many forms, such as a suggestion, proposal, request,exhortation, gesture, argument, persuasion, inducement, goadingor the arousal of cupidity.” 4When incitement to murder is charged in Ireland it is charged as solicitingmurder contrary to section 4 of the Offences Against the Person Act 1861.The formula prescribed for constituting the offence is “solicit, encourage,persuade, or endeavour to persuade, or [ ] propose to any person, to murderany other person …” 54.04 The English Court of Appeal in R v Marlow 6 suggested“encourage” captures the actus reus of incitement as well as any other word.But according to the English courts, 7 pressure and threats can also constituteincitement. “Encourage” might tend to obscure this form of incitement. Thesame can be said about “request” – as in the incitor requests the incitee do acriminal act. “Persuade” somewhat conveys the act of incitement so long asit is remembered that a guilty incitor need not have succeeded in persuadingthe incitee to act; “persuasion” alone implies a degree of success which isnot at all necessary for guilt. In the United States, incitement is calledsolicitation. This word emphasises a central example of incitement wheresomeone requests the performance of a criminal act for reward.(i)Requirement for incitement to reach incitee4.05 Under common law the communication must reach the personsought to be incited. As O‟Brien CLJ stated, “[t]here must be evidence thatthe incitement reached the persons intended to be affected wherever they are…”. 8 To repeat the definition given by Holmes JA: “An inciter ... is onewho reaches and seeks to influence the mind of another to the commissionof a crime.” 9 If the communication does not reach the intended recipient –suppose a letter containing the encouragement to commit crime isintercepted by the police – then attempt to incite can be charged. 10 TheAmerican Law Institute‟s Model Penal Code (MPC) takes a different45678910Holmes JA in S v Mkosiyana (1966) 4 SA 655, 658, quoted in R v Goldman [2001]Crim LR 822; [2001] EWCA Crim 1684, McAuley and McCutcheon CriminalLiability (Round Hall Press 2000) at 431, Ormerod, Smith & Hogan Criminal Law(11 th ed Oxford University Press 2005) at 351.Section 4 of the Offences Against the Person Act 1861.[1997] Crim LR 897.Race Relations Board v Applin [1973] QB 815, R v Evans [1986] Crim LR 470.R(Lanktree) v M’Carthy (1902-1903) 3 New Irish Jurist & Loc. Gov‟t Rev. 76, 81.S v Mkosiyana (1966) 4 SA 655, 658. Emphasis added.R v Sirat (1985) 83 Cr App R 41, R v Ransford (1874) 13 Cox CC 9, R v Banks (1873)12 Cox CC 393.104
Page 1:
Consultation <stro
Page 4 and 5:
Law Reform CommissionTHE LAW REFORM
Page 6 and 7:
Law Reform CommissionLaw Reform Res
Page 8 and 9:
Law Reform CommissionContact Detail
Page 10 and 11:
TABLE OF CONTENTSTable of Legislati
Page 12:
TABLE OF LEGISLATIONAbortion Act 19
Page 15 and 16:
Lajoie v R [1974] SCR 399 CanLeigh
Page 17 and 18:
R v O‟Brien [1954] SCR 666 CanR v
Page 20 and 21:
INTRODUCTIONABackground to the proj
Page 22 and 23:
5. Inchoate offences do not exist i
Page 24 and 25:
11. Chapter 1 explores the nature o
Page 26 and 27:
CHAPTER 1INCHOATE LIABILITYAIntrodu
Page 28 and 29:
its pure relational form as an agre
Page 30 and 31:
D(1) LegalityCriminal law theory en
Page 32 and 33:
1.16 Some textbook writers reverse
Page 34 and 35:
one resulted in conviction by the j
Page 36 and 37:
1.30 Evident here is a principled r
Page 38:
excusatory defences 51legitimate de
Page 41 and 42:
codifying inchoate offences will be
Page 43 and 44:
called “the proximity rule” to
Page 45 and 46:
Appeal, was because more than one i
Page 47 and 48:
accused for which she stood trial a
Page 49 and 50:
defendant had progressed well beyon
Page 51 and 52:
And it is costly to try - police an
Page 53 and 54:
and subsequently abolished in New Z
Page 55 and 56:
“proximate” was more like “ne
Page 57 and 58:
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 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 120 and 121: G(a)Abandonment of a conspiracyThe
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
show all

Consultation Paper on Inchoate Offences - Law Reform Commission

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?