Consultation Paper on Inchoate Offences - Law Reform Commission

5. Inchoate offences do not exist in isolation. An inchoate offencecomes into existence only when it combines with one or more of the specialpart offences. Attempt and incitement always attach to a crime. Conspiracyalways attaches to either a crime or an unlawful activity. Unlawful activityfor the purpose of conspiracy has a particular meaning and is wider than“criminal”. It should be also noted that there are a number of conspiracyoffences that are really special part offences. Conspiracy to defraud andconspiracy to corrupt public morals are examples.6. Generally, if a new special part offence comes into existence, theninchoate offences relating to that substantive offence also come intoexistence. Suppose, for example, a new statutory offence of adultery isenacted. This would have the effect of creating inchoate offences ofattempting, inciting, and conspiring to commit adultery. It is noted thatArticle 15.2.1° of the Constitution of Ireland vests exclusive law-makingpower in the Oireachtas. The process described in the adultery example heredoes not conflict with Article 15 since it would be the Oireachtas, not judgescausing attempt, conspiracy, and incitement to commit adultery to come intoexistence. Just as self-defence would be a defence to any new offenceenacted in the absence of the enacting statute providing otherwise, so toowould attempt, conspiracy, and incitement relate to any new offence enacted.CScope of the project7. The label “inchoate offences” can be used to describe not justattempt, conspiracy and incitement when they attach or relate to special partoffences, but also many special part offences that have the character ofcriminalising conduct that leads to prohibited harm. Central examples ofspecial part offences that can reasonably be called inchoate offences arepossession offences. 10 Possession of a knife in public 11 is a special partoffence on the statute book. Yet mere possession causes no actual prohibitedharm such as injury or the fear of attack. Carrying a knife may increase thelikelihood of criminal harm, or it may be thought that carrying a knife inpublic is a prelude to offences such as assault and robbery. By prohibitingmere possession in public, the law aims to stamp out conduct leading tosubstantive criminal harm. Thus it has a similar function to attempt,conspiracy, and incitement, though in this particular instance the special partinchoate offence (possession of a knife) catches conduct further removedfrom the completion of substantive criminal harm than criminal attemptliability would. Accordingly, this special part inchoate offence can bethought of as supplementing the general part inchoate offences.1011Another example is endangerment in section 13 of the Non-Fatal Offences Against thePerson Act 1997.Section 9 of the Firearms and Offensive Weapons Act 1990.3