Consultation Paper on Inchoate Offences - Law Reform Commission

1.30 Evident here is a principled reluctance to charge conspiracy – it isonly to be charged out of necessity; it is bad practice to charge conspiracywhere substantive charges could be laid. Nevertheless, conspiracy hashistorically been charged where a substantive offence has indeed beencompleted. Conspiracy is committed by a mere agreement, and it is not thekind of agreement that will be recorded. A conspiracy because of its naturemay be unlikely to come to the attention of state officials and there is ofteninsufficient evidence without acts on foot of the conspiracy to reveal itsexistence.GCodification of inchoate offences1.31 Codification of inchoate offences engages a tension betweencertainty and flexibility. In aiming for certainty and precision when defininginchoate offences, particularly attempt, a price is paid in that the lawbecomes rigid. 46 A rigid law tends to bind the court to reaching unwanteddecisions, either because it criminalises behaviour that should not becriminal or fails to criminalise behaviour that should be criminal. The codedrafterseems to be left in a difficult position: to opt for certainty at the costof flexibility, or to allow flexibility at the cost of certainty. It can be argued,however, that the position is not so difficult because the second option,flexibility at the cost of certainty, does not involve the destruction of thebenefits associated with certainty that might be thought.1.32 It is accepted that certainty in the criminal law is a good thing. Itis a key part of the legality principle set out above. 47 Often certainty is seenas a good in itself, and this may be so. But the principal value of certainty inlaw lies in its instrumental value. One account of the good of certainty inlaw points out that it makes for more efficient handing of cases in court thusmaking justice less costly to the State and to litigants. This explanationcontinues, explaining why it is a good thing to keep the cost of justice down– it might ultimately boil down to the good of equality or liberty – this doesnot matter for present purposes. The point is that certainty in law is not thepoint at which the explanation ends. Another account of the good ofcertainty in law claims that it allows people to rely on the law. If citizenscan be reasonably confident about how the law will be applied then theyhave greater scope to plan their lives, pursue their goals with coherent plans;the more certain law is, the more confidently it can be relied on and thus thegreater liberty people have to pursue self-shaping lives. Certainty is aninstrumental good, not an end in itself.4647A problem referred to as “ossification of the criminal law”. See Report of the ExpertGroup on the Codification of the Criminal Law Codifying the Criminal Law(Government Publications 2004) at paragraph 1.108.At paragraph 1.12.17