Consultation Paper on Inchoate Offences - Law Reform Commission

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D(1) LegalityCriminal law theory engaged by inchoate offences1.12 The legality principle is a foundational principle of moderncriminal law. It can be stated in various ways. 20 One formulation says thatpersons should be convicted and punished for doing X only if they in factdid X and X was clearly and accessibly marked out in advance as somethingthat is prohibited and that can result in punishment. This legality principleforms the core of “the rule of law” which applies to all law – not justcriminal law – and is fleshed out with principles including: law should not beretroactive, it should be accessible, capable of being obeyed, stable, andcertain, applied in practice consistent with how it is promulgated and so on. 21The rule of law is concerned with respecting citizens‟ autonomy andfreedom. When the law is certain and applied as it says it will be applied,citizens can lead self-shaping lives enjoying maximum freedom. Certaintyin law provides security for citizens to rely on the law to be enforced fortheir protection and not to their detriment provided they keep within itsboundaries. 221.13 The legality principle has played a crucial role in informing theCommission‟s recent recommendations for criminal law. 23 It is also adriving force presupposed in current processes to codify the criminal law. 24This <strong>Paper</strong> will pay much attention to the legality principle, especially whenconsidering reform of conspiracy. 25202122232425McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 42,Ashworth Principles of Criminal Law (5 th ed Oxford University Press 2006) at 68,Dripps “The Constitutional Status of the Reasonable Doubt Rule” (1987) 75 Calif LRev 1665.This draws on Lon Fuller‟s account of the rule of law and its value in Fuller TheMorality of Law (Yale University Press 1965). The Constitution of Ireland expresslyenshrines a number of these principles, for example, the prohibition of retroactivecriminalisation in Article 15.5.1º.See Simmonds Central Issues in Jurisprudence (2 nd ed Sweet & Maxwell 2002) atchapter 7.Law Reform Commission <strong>Consultation</strong> <strong>Paper</strong> on Legitimate Defence (LRC CP 41-2006).Legality is invoked 12 times in the Report of the Expert Group on the Codification ofthe Criminal Law Codifying the Criminal Law (Government Publications 2004).See Chapter 3 below at paragraphs 3.64-3.76.11
(2) Subjectivism and objectivism1.14 Tension between subjectivism and objectivism is engaged byinchoate offences. Broadly speaking, subjectivists 26 recommend thatcriminal defendants be punished on the basis of their responsibility andculpability for criminal harm. Objectivists 27 say this concern should betempered with recognition of the actual harm people have caused. Inchoateoffences uniquely do not, or need not, occasion actual criminal harm. Thusobjectivists argue for narrow inchoate offences while subjectivists argue forwider. While subjectivism tends to work as an exculpatory doctrine – andobjectivism inculpatory – when applied to defences such as duress and selfdefence,for inchoate offences the roles are reversed. Thus an objectivistlike Antony Duff proposes a quite narrow definition for criminal attemptwhile Glanville Williams‟ subjectivist approach recommends a widercriminal attempt. 28(3) The significance of mens rea for inchoate offences1.15 Generally, criminal law operates so that specified acts (oromissions) are prohibited. If these acts are done with a culpable or guiltymind liability, specified punishment may result. Punishment is imposedbecause a (criminal) harm was caused by an actor with a guilty mind. Incontrast, inchoate offences serve to punish on the basis of, at most, risked orthreatened criminal harm posed by an actor with a guilty mind. Withinchoate offences the emphasis on the aspects on the offence is the reverse ofwhat is typical in criminal law. That is, the guilty mind of the accused,rather than his or her physical actions, is the most important part of aninchoate offence. Indeed, his or her actions by definition will not satisfy theactus reus of the substantive offence to which the inchoate offence chargedrelates, for otherwise the substantive offence is the appropriate charge. Ofcourse, the evidence in a case of attempted murder, for example, will oftenalso tend to suggest the commission of lesser offences such as assault. Butthis is not necessarily the case. People who plan shoplifting most likely donot commit any substantive special part offence, though they commit theinchoate offence of conspiracy to commit theft. 29 The actions that constitutea criminal attempt may be innocuous if viewed without reference to theguilty mind. For incitement and conspiracy the actions are typically merecommunications.26272829Leading writers include HLA Hart, Glanville Williams, and Andrew Ashworth.Proponents include Oliver W Holmes, Antony Duff.See below at paragraph 2.34.See Enker “Mens Rea and Criminal Attempt” (1977) Am B Found Res J 845, at 847.12
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 24 and 25: 11. Chapter 1 explores the nature o
Page 26 and 27: CHAPTER 1INCHOATE LIABILITYAIntrodu
Page 28 and 29: its pure relational form as an agre
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
Page 75 and 76: consequences/circumstances distinct
Page 77 and 78: inchoate liability) because such pr
Page 79 and 80: Oireachtas has sole law-making powe
Page 81 and 82:
either label could be applied to a
Page 83 and 84:
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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Consultation Paper on Inchoate Offences - Law Reform Commission

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