Consultation Paper on Inchoate Offences - Law Reform Commission

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(iii)Inciting non-criminal conduct4.36 Legislation has made it criminal to incite some non-criminalconduct. An example is the Prohibition of Incitement to Hatred Act 1989.Hatred alone, even when racist, is not a crime. But the 1989 Act makes itcriminal to incite racial hatred (among other types of hatred). Incitement tohatred is not an example of the common law relational incitement becausethe conduct incited, in the absence of the legislature enacting an offence ofsimply racial hatred, is not criminal. Rather, incitement to hatred is a specialpart offence that so happens to use the concept of incitement, albeit withsome additional novelty. 56(iv)Inciting inchoate offences4.37 There is case law suggesting an inchoate offence can be theconduct incited. Incitement to conspire was recognised at common law. 57Often, inciting an agreement to commit a crime would amount to anincitement to commit that crime. In England and Wales, incitement toconspire has been expressly abolished by statue; 58 but there has been no suchdevelopment in Ireland. Incitement to attempt has not been recognised inany case, but it is believed to be a possible crime. 59 This is doubtful,however, since the mens rea requirement for incitement of intention that theincited act be carried out is not present if the incited act is merely intended tobe attempted. Incitement to incite has been recognised at common law. 60 Incontrast to attempting to attempt or conspiring to conspire, incitement toincite is a plausible charge. Once again the concerns about double inchoateliability expressed in Chapter 2 above 61 apply.(v)Conclusion4.38 Regarding the question of what can be criminally incited, theCommission sees to no reason to provisionally recommend other than arationalisation of the common law position, that is, incitement attaches tocrimes.565758596061For example, the 1989 Act uses “stir up” rather than “incite” to describe the offence.See Daly “Reform of the Prohibition of Incitement to Hatred Act 1989 – Part I”(2007) 17 ICLJ 16.R v De Kromme (1892) 17 Cox CC 492.Section 5(7) of the Criminal Law Act 1977 (Eng).Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at 32.R v Sirat (1985) 83 Cr App R 41, R v Evans [1986] Crim LR 470.See above at paragraphs 2.113-2.121.115
4.39 The Commission provisionally recommends that all and only actsfor which the incited person can be criminally liable can be incited.CIssues unique to incitement(1) A perceived gap in liability(a)The limits of incitement4.40 Incitements that result in completed or attempted crimes engagesecondary liability. 62 But not all instances of (what would be) secondaryliability (if the target crime is completed or attempted) result in incitements.Incitement is not committed by the person who assists (without encouraging)crimes that are never even attempted. Furthermore, in this situation,secondary liability does not apply because the target crime is neithercompleted nor attempted. There seems to be inconsistency in that those whohelp – but do not actually encourage – others to commit crime are notcriminally liable if the target crime is not in the end carried out. Yet it isthought that those who assist unattempted crime are no less blameworthythan those who assist completed crime. 63 There is a gap in liability. It hasbeen said that in England and Wales conspiracy as a relational offence 64 andconspiracy to defraud have been distorted and strained in an effort tocompensate for this gap. 65 This is part of the argument proposing a newscheme of criminal liability for assisting and encouraging crime.(b)Assisting and encouraging crime4.41 The Law Commission for England and Wales have proposed twonew offences, 66 which have recently been enacted into law in England andWales in the Serious Crime Act 2007. The actus reus is the same for both ofthese new offences: an act capable of encouraging or assisting thecommission of a criminal act. For one of the two new offences (“the intentoffence”), the mens rea is intention that the criminal act be committed. Forthe other (“the belief offence”), the mens rea is belief that the6263646566Section 7 of the Criminal Law Act 1997 read in conjunction with section 2 of thesame Act.Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at 21-23.Which in England and Wales is statutory conspiracy: section 1(1) of the Criminal LawAct 1977.Spencer “Trying to Help Another Person to Commit a Crime” in P Smith (ed) Essaysin Honour of JC Smith (Butterworths 1987), Law Commission for England and WalesReport on Inchoate Liability for Assisting and Encouraging Crime (No 300 2006).Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006).116
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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
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inchoate liability) because such pr
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Oireachtas has sole law-making powe
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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
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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 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 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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