Consultation Paper on Inchoate Offences - Law Reform Commission

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11. Chapter 1 explores the nature of inchoate offences. It gives abrief account of the history of inchoate offences and their rationale. It thendiscusses criminal law theory engaged by inchoate offences, namelyprinciples of legality, objectivist and subjectivist perspectives, and principlesof mens rea. Then follows a discussion of how inchoate liability relates to,and differs from, secondary liability. Next, the operation of inchoateoffences in practice in Ireland is surveyed. The Chapter concludes withdiscussion of considerations relevant to the task of codifying inchoateoffences.12. Chapter 2 focuses on criminal attempts, describing current Irishlaw on attempt by separating attempt into three components: actus reus,mens rea, and the target or goal of an attempt. The target of an attemptrefers to the special part offence that the attempt relates to. For each section,reform options are evaluated and provisional recommendations are set out.Chapter 2 also discusses, in the context of criminal attempts, issues thatapply to all three inchoate offences. These issues include the scope forinchoate offences to attach to other inchoate offences (double inchoateliability). Also discussed is the relevance of impossibility and abandonmentto inchoate liability. The Commission makes a number of provisionalrecommendations for the law of criminal attempt. These provisionalrecommendations amount to a codification of attempt law as it is. Though itis acknowledged there is substantial uncertainty as to precisely what theexisting law in Ireland is. To sum up the Commission‟s provisionalrecommendations for attempt: the actus reus of attempt is an act proximateto the completion of the target special part offence, the mens rea of attemptis intention, and neither impossibility nor abandonment are a defence to acharge of attempt.13. Chapter 3 is on criminal conspiracy. Following the structure ofthe previous Chapter it sets out Irish law on conspiracy, highlightsproblematic aspects, and then evaluates other jurisdictions‟ approaches aswell as arguments for reform. Chapter 3 deals with what might be calledsubstantive or special part conspiracy offences such as conspiracy todefraud. These conspiracy offences differ from conspiracy as an inchoateoffence that attaches to special part crimes in that they are free-standing fullspecial part offences in themselves. Case law on these offences does,however, employ and indeed develop the law on conspiracy generally sincethe same concept of agreement is used. For the most part the Commissionprovisionally recommends a codification of existing conspiracy law. To sumup, the Commission provisionally recommends conspiracy is an agreementto commit a crime whether or not the crime is the primary purpose of theagreement or a side effect of pursuing the agreement; that so-calledimpossible conspiracies are still conspiracies; and that withdrawal from aconspiracy is not a defence. The significant provisional recommendation for5
law reform in relation to conspiracy is that conspiracy be limited toagreements to commit crime. The Commission provisionally recommends,therefore, that it no longer be the case that agreements to pursue unlawful,though non-criminal, activity constitute criminal conspiracy.14. Chapter 4 is on incitement. Again, it follows the structure of theprevious Chapters in that it aims to set out the existing law and then surveyand evaluate options for reform. Some issues that arise only with incitementare discussed. These include a perceived gap in incitement liability and therelationship of incitement to free speech principles. The Commission‟sprovisional recommendations for incitement are to codify the existingcommon law position. The Commission, therefore, provisionallyrecommends that the actus reus of incitement be defined as “commands,encourages, or requests”; that the mens rea of incitement be intention; thatonly crimes can be incited; and that neither impossibility nor withdrawal is adefence to incitement.15. Chapter 5 lists the Commission‟s provisional recommendations.16. This <strong>Consultation</strong> <strong>Paper</strong> is intended to form the basis ofdiscussion and therefore all the recommendations made are provisional innature. The Commission will make its final recommendations on the subjectof inchoate offences following further consideration of the issues andconsultation with interested parties. Submissions on the provisionalrecommendations included in this <strong>Consultation</strong> <strong>Paper</strong> are welcome. Toenable the Commission to proceed with the preparation of its Final Report,those who wish to do so are requested to make their submissions in writingby post to the Commission or by email to info@lawreform.ie by 30 May2008.6
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 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
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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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man carried away his own umbrella d
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just to make it look like he would
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ii)Having an abandonment defence gi
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i) The would-be perpetrator had a c
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3CHAPTER 3CONSPIRACYAIntroduction3.
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two or more persons involving resol
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3.12 The People (Attorney General)
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the Brighton Conspiracy Case 37 sta
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Henchy J went on to state, obiter,
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conspiracy is exempt from liability
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Subsequently, in R v Anderson, 73 t
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(b)(i)Non-criminal unlawfulnessTort
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“[A]n agreement by two or more by
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decency, which has an ancillary inc
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where they will fall in.” The ice
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abolishing the latter but not the f
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G(a)Abandonment of a conspiracyThe
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4CHAPTER 4INCITEMENTAIntroduction4.
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approach to that of the common law.
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(v)Incitement need not be directed
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verbs used to describe a physical a
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4.23 It is noted that while the act
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direction. The analysis of criminal
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(iii)Inciting non-criminal conduct4
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encouragement or assistance will in
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Convention on Human Rights. 75 Inci
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conduct incited. This position was
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5CHAPTER 5PROVISIONAL RECOMMENDATIO
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(4) Impossible conspiracies5.21 The
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The Law Reform Commission is an ind
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