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Consultation Paper on Inchoate Offences - Law Reform Commission

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crime necessarily entails criminal liability for attempting it. 3 R v Higgins, 4 atthe beginning of the 19 th Century, was handled by the judges as a case ofcriminal attempt. It was, however, a classic case of incitement – thedefendant solicited a servant to steal his master‟s goods. It can be seen,therefore, as establishing incitement as a distinct inchoate offence that willattach to special part crimes.1.04 Specific c<strong>on</strong>spiracy offences go back many centuries. Anexample of a specific c<strong>on</strong>spiracy from the 14 th Century is c<strong>on</strong>spiracy tomaintain false pleas or cause children to maintain false pleas. 5 A modernday specific c<strong>on</strong>spiracy is c<strong>on</strong>spiracy to defraud. 6 Sayre reports aninteresting case from as far back as 1351 where it seems a generalc<strong>on</strong>spiracy charge that would relate to a substantive wr<strong>on</strong>g was charged butrefused recogniti<strong>on</strong> by Shardlowe J. 7 McAuley and McCutche<strong>on</strong> interpretthe failure of the charge as revealing the specific nature of c<strong>on</strong>spiracy at thetime and indeed for the centuries that followed. 81.05 The first identificati<strong>on</strong> of c<strong>on</strong>spiracy as a relati<strong>on</strong>al offence thatwould attach to all other specific crimes and indeed n<strong>on</strong>-criminal wr<strong>on</strong>gsmay have been in the 18 th Century in the writings of Hawkins andBlackst<strong>on</strong>e. 9 Sayre doubts Hawkins was accurately describing the existinglaw, 10 McAuley and McCutche<strong>on</strong> doubt Blackst<strong>on</strong>e was. 11 R v JourneymenTailors 12 employed c<strong>on</strong>spiracy as Hawkins and Blackst<strong>on</strong>e described, that is,as something that could attach to a yet to be specified wr<strong>on</strong>g, though thiscase subsequently became an authority for a specific offence amounting toc<strong>on</strong>spiracy to strike. The seminal 19 th Century authority for c<strong>on</strong>spiracy citedin modern courts and textbooks is R v J<strong>on</strong>es, 13 which identifies c<strong>on</strong>spiracy in345678910111213R v Schofield (1784) Cald 397. See McAuley and McCutche<strong>on</strong> Criminal Liability(Round Hall Press 2000) at 409-410.(1801) 2 East 5.McAuley and McCutche<strong>on</strong> Criminal Liability (Round Hall Press 2000) at 422-423.See Chapter 3 below at paragraphs 3.55 and 3.68. See also McAuley andMcCutche<strong>on</strong> Criminal Liability (Round Hall Press 2000) at 422-430.Sayre “Criminal C<strong>on</strong>spiracy” (1922) 35 HLR 393, at 397.See McAuley and McCutche<strong>on</strong> Criminal Liability (Round Hall Press 2000) at 423.McAuley and McCutche<strong>on</strong> Criminal Liability (Round Hall Press 2000) at 424, citing1 Hawk PC c72 paragraph 1 and 4 Bl. Com. 136.Sayre “Criminal C<strong>on</strong>spiracy” (1922) 35 HLR 393, at 402.McAuley and McCutche<strong>on</strong> Criminal Liability (Round Hall Press 2000) at 424.(1721) 8 Mod 10.(1832) 110 ER 485, 487, per Denman CJ.8

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