Consultation Paper on Inchoate Offences - Law Reform Commission

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Convention on Human Rights. 75 Incitement offences have not had theirconstitutionality challenged in the Irish courts. However, there have beenchallenges elsewhere.4.49 In R v Marlow 76 the author of a book describing how to grow andharvest cannabis was convicted for inciting drug offences. The conviction inMarlow was for a statutory incitement offence under section 19 of theMisuse of Drugs Act 1971. This offence applies as common law incitementapplies, that is, as a relational inchoate offence; hence, the Marlow decisioncan be taken as an interpretation of the common law. The defendant authorin Marlow sought a declaration from the European Court of Human Rightsthat his conviction was in violation of Article 10 of the EuropeanConvention on Human Rights protecting freedom of expression. Theapplication was declared inadmissible. 77 The European Court of HumanRights acknowledged that the applicant‟s right to freedom of expression hadbeen interfered with and that decriminalisation of cannabis had been pursuedin a number of Convention States. But the Court held that the interferencewas justified and it was within the State‟s margin of appreciation tocriminalise incitement to produce cannabis.4.50 On a number of occasions in the 20 th Century the United StatesSupreme Court has been asked to strike down sedition and incitementoffences as unconstitutional under the 1 st Amendment of the USConstitution. The leading decision is Brandenburg v Ohio 78 in which theSupreme Court set out requirements that must be present in order for anincitement offence to survive constitutional scrutiny. The Court stated thatmere advocacy of illegal action could not be punished, only “advocacy [that]is directed to inciting or producing imminent lawless action and is likely toincite or produce such action.”4.51 It has been observed that this holding is at odds with existingcriminal incitement in the United States and elsewhere. 79 In particular, theBrandenburg test requires a likelihood that the speech will produce theillegal action it encourages. As has been repeatedly emphasised above, 80common law incitement and its statutory equivalents can be committed oncethe communication reaches the incitee even where there was little or no757677787980Article 10.[1997] Crim LR 897.Marlow v United Kingdom [2001] EHRLR 444.(1969) 395 US 444.Alexander “Incitement and Freedom of Speech” in Kretzmer and Hazan (eds)Freedom of Speech and Incitement Against Democracy (Kluwer 2000) at 113-114.See above at paragraphs at 4.02 and 4.06.119
chance that the incited act would be carried out. For example, in R vGoldman 81 an undercover police officer was requested to supply childpornography, something which there was no likelihood of happening. TheCourt nonetheless affirmed the conviction.DImpossible incitements4.52 The Irish courts have not had occasion to comment on therelevance of impossibility to incitement liability. The question is whetherincitement is precluded where the circumstances are such that it isimpossible for the offence incited to occur if the incitement is carried out?The question could also be phrased in terms of a defence by asking whetherit is a defence to a charge of incitement to show that, even if the allegedincitement was carried out, no offence could have been committed given thecircumstances. To illustrate with an example, is it incitement to murder toinstruct the murder of a particular person who, unbeknownst to you, isalready dead?4.53 The English courts have had occasion to discuss impossibleincitements. Unlike impossibility in relation to attempt and conspiracy,English statute has not touched on impossible incitement with the result thatthe English courts have been endeavouring to apply the common law. Thecommon law position, as interpreted by the English Courts, is that incitementcannot be committed where the particular target offence cannot becommitted.4.54 One type of case that might be thought of as involving animpossible incitement is where no crime will be committed by the incitee ifthe incitement is acted on. In R v Whitehouse 82 the Court of Appeal held thata father could not be guilty of inciting incest when he encouraged his 15 yearold daughter to have sex with him since, if the daughter acted on theencouragement, she would not be criminally liable since the offence ofincest exists to protect, not criminalise a person in her position. The Courtof Appeal held that in the circumstances the accused could be charged withinciting his daughter to aid and abet him in committing incest. In theaftermath of Whitehouse the UK Parliament enacted a specific offence ofinciting a girl under 16 to have incestuous sexual intercourse. 83 Whitehouseis still authority for the proposition that liability for incitement does not liewhere the incitee would not be guilty of a crime if he or she carries out the818283[2001] Crim LR 822.[1977] 2 WLR 925.Section 54 of the Criminal Law Act 1977.120
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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
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2.135 Perhaps Walsh J, when imagini
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subjectivist approach to impossibil
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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,
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Page 108 and 109: Subsequently, in R v Anderson, 73 t
Page 110 and 111: (b)(i)Non-criminal unlawfulnessTort
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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 134 and 135: (iii)Inciting non-criminal conduct4
Page 136 and 137: encouragement or assistance will in
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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