Consultation Paper on Inchoate Offences - Law Reform Commission

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verbs used to describe a physical action also entail the state of mind withwhich that action is done. In other words, to use an example, to saysomeone “commanded” someone else is to imply that what was done wasintentional. However, this idea of the action entailing the state of mind thataccompanies it can only go so far. It is easy to imagine someone“encouraging” another unintentionally, for example, an Islamic clericcondemns Western culture in harsh words might in fact “encourage” hisaudience towards terrorist acts though this is not his purpose, his purposebeing to point out immoral behaviour as he sees it. The UK‟s Terrorism Act2006, section 1, has enacted an offence of encouragement of terrorism,which can be made out on the basis of what a public audience was likely toinfer they were being encouraged to do, rather than what the speakerbelieves he is encouraging. Celebrating or praising terrorist acts (verywidely defined) is provided to be a ground for inferring encouragement ofterrorism and the 2006 Act expressly provides that the offence can becommitted recklessly. This new offence, therefore, criminalises a muchwider sphere of conduct than common law incitement.(c)The actus reus of incitement – conclusion4.17 The MPC‟s formula of “commands, encourages or requests”provides a neat summary of what incitement encompasses and has provedpopular in recent codification movements in the United States. It could beused as a statement of common law incitement in the general part of acriminal code.4.18 The Commission provisionally recommends that the formula“commands, encourages or requests” be used to codify the actus reus ofincitement.(2) The mens rea of incitement4.19 Under the definition of incitement in the Draft Criminal Code ofthe Law Commission for England and Wales a person is guilty of incitementif he “incites another … and … intends or believes that the other, if he actsas incited, shall or will do so with the fault required for the offence oroffences.” 30 On a number of occasions the English courts have stated thatthis definition is an accurate description of common law incitement. 31 Thisis questionable, however, since the Law Commission for England andWales‟s definition includes “intends or believes” while the common lawjudgments tend to imply “intends” only. There is, however, a dearth ofjudicial definition of the mens rea of incitement. In the seminal case of R v3031Clause 47 of Draft Criminal Code in A Criminal Code for England and Wales,Volume 1: Report and Draft Criminal Code Bill (No 177 1989).R v Goldman [2001] Crim LR 822; DPP v Armstrong [2000] Crim LR 379; R (O) vCoventry Magistrates’ Court [2004] Crim LR 948.109
Higgins 32 the definition of incitement is not elaborated on beyond “solicit”.In R v Most 33 “intends” is explicitly mentioned when describing solicitationof murder. As with “attempt”, “incite” connote intentional activity; to saythat the defendant incited or solicited a crime is to imply that they did sointentionally.(a)Intention and knowledge4.20 Had the Law Commission for England and Wales‟s definitionused “intends and believes” rather than “intends or believes” it would havebeen closer to describing the existing common law position. 34 Indeed theLaw Commission for England and Wales in 2006 35 approved a statement ofthe mens rea of incitement as intention plus knowledge. 36 In this context,intention applies to the consequences of the incitee receiving the incitementor encouragement to crime. Knowledge includes belief and refers to theneed for the incitor to know that all the circumstances and facts were inplace such that, if the incitee carries out the incitement, a crime will becommitted.4.21 Consistency between mens rea for attempt and incitement in bothrequiring intention can be somewhat explained historically by reference tothe common ancestry of incitement and attempt. R v Higgins was a classiccase of incitement: the defendant solicited a servant to steal. Yet theconvoluted indictment boiled down to attempted larceny, and the appealcourt treated the case as one of attempt. 37 The same normative argumentsfor keeping mens rea restricted to intention for attempts apply toincitement. 384.22 Direct intention, where the incitor‟s aim is to cause a specificcrime is clearly sufficient. There are cases suggesting oblique intention,where the incitor‟s primary aim is something other – for example, makingmoney – than causing a specific crime also suffices. 393233343536373839(1801) 2 East 5, 102 ER 269.(1881) 7 QBD 244, 248 and 251.Though a strong case can be made the other way in light of cases such as InvictaPlastics [1976] Crim LR 131, which is discussed below at paragraph 4.27.Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at 34.The statement was from Ormerod Smith & Hogan: Criminal Law (11 th ed OxfordUniversity Press 2005) at 353-354.See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 430.See Stannard “Making up for the Missing Element: A Sideways Look at Attempts”(1987) 7 Legal Studies 194.Invicta Plastics Ltd v Clare [1976] Crim LR 131, [1976] RTR 251.110
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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
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the Court of Criminal Appeal has ap
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activity. Purposive activity is int
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a Working Party assisting the Law C
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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
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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 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 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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