Consultation Paper on Inchoate Offences - Law Reform Commission

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the Court held that there could be a criminal attempt notwithstanding therebeing more acts on the part of the accused needed to complete thesubstantive offence. The additional acts needed in Sullivan were thesubmission of further birth reports, whether real or fictitious, so as to exceed25 births for the contract year.2.13 The case of The People (Attorney General) v England, 15 likeSullivan, applies a proximity test. The defendant had talked about anunspecified house in Dublin where “pornographic practices” took place and,so the witness claimed, invited the witness to attend this house. GavanDuffy P, speaking for the Court of Criminal Appeal, held that thedefendant‟s conviction for attempting to procure an act of gross indecencycould not stand because the action of the accused “was not, in fact, nearenough to the actual criminal procurement of [the witness] to constitute inlaw the attempt to procure charged in the indictment.” 162.14 The England is not an authority for the proposition that merewords cannot constitute an attempt. 17 There are numerous scenarios wheremere words would satisfy even the stringent last act test for attempt. Forexample, an adult instructs a child do a criminal act. The child is incapableof the crime; hence, an incitement charge is not appropriate. But there maybe a criminal attempt here since the adult has tried to commit a substantiveoffence through the agency of the innocent child.(ii)Unequivocal act in Ireland2.15 In The People (Attorney General) v Thornton 18 the accused hadbeen convicted of attempting to procure a poison to bring about amiscarriage. The accused had made a girl pregnant. While a doctor wasexamining this girl the accused asked “wasn‟t there something called ergot?”In the opinion of the Court of Criminal Appeal though this could, as a matterof probability, be construed as an attempt to get an abortion, thecommunication was ambiguous and thus could not be considered anattempt. 19 The conviction was quashed. A version of the unequivocal actrequirement forms the ratio of Thornton since the reason why a prosecutionfor attempt could not lie in Thornton, according to the Court of Criminal1516171819(1947) 1 Frewen 81.(1947) 1 Frewen 81, 84.The England judgment cited R v Higgins (1801) 2 East 5, where words aloneconstituted an attempt. In The People (Attorney General) v Thornton [1952] IR 91 analleged attempt committed by words alone was held not to constitute an attempt, butnot for the reason that evidence disclosed mere words.[1952] IR 91.[1952] IR 91, 96-97.25
Appeal, was because more than one inference could be drawn on viewing theact of the accused(iii)Proximity theory’s primary position in Ireland2.16 The People (Attorney General) v Thornton 20 could be described asapplying an unequivocality requirement. Yet no express endorsement ofunequivocal act approaches was made in Thornton. Furthermore, Haugh Jendorses proximity theory:“[the act] must go beyond the mere preparation, and must be adirect movement towards the commission after the preparationshave been made … and if it only remotely leads to thecommission of the offence and is not immediately connectedtherewith, it cannot be considered as an attempt to commit anoffence.” 212.17 This is the Eagleton formula, interpreted by the Supreme Court inSullivan as suggesting simply a proximity test. But the Eagleton formulacan be, and has been, read as suggesting a last act test. Requiring the act tobe “immediately connected” with the commission of the offence canplausibly be another way of saying that a last act is required. It is true that“the Irish law on criminal attempts embraces the proximity theory.” 22 Butproximity theory is not the only approach discernible in Irish cases.(c)(i)Evaluation of the four approachesEvaluation of the proximate act approach2.18 Proximity theory requires a proximate act for criminal attempt. Aproximate act is one that is close to the commission of the full target offence.A proximate act stands in contrast to a remote act; the latter will not sufficefor attempt liability. In R v Button 23 the defendant lied in order to get afavourable handicap for some running races, which he went on to win. Thedefendant‟s deceit was discovered prior to the stage of his claiming the prizemoney. It was held that his acts were close enough to obtaining money byfalse pretences and thus he could be convicted of attempting that offence.2.19 The Eagleton formula has been read as applying a proximate acttest and also as applying a last act test. Perhaps this reveals that these twotests are really the same thing. The Law Commission for England andWales pointed out that the literal meaning of proximate is “nearest, next20212223[1952] IR 91.[1952] IR 91, 93.Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at 274.[1900] 2 QB 597.26
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 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: called “the proximity rule” to
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
Page 85 and 86: subjectivist approach to impossibil
Page 87 and 88: man carried away his own umbrella d
Page 89 and 90: just to make it look like he would
Page 91 and 92: ii)Having an abandonment defence gi
Page 93 and 94: i) The would-be perpetrator had a c
Page 96 and 97:
3CHAPTER 3CONSPIRACYAIntroduction3.
Page 98 and 99:
two or more persons involving resol
Page 100 and 101:
3.12 The People (Attorney General)
Page 102 and 103:
the Brighton Conspiracy Case 37 sta
Page 104 and 105:
Henchy J went on to state, obiter,
Page 106 and 107:
conspiracy is exempt from liability
Page 108 and 109:
Subsequently, in R v Anderson, 73 t
Page 110 and 111:
(b)(i)Non-criminal unlawfulnessTort
Page 112 and 113:
“[A]n agreement by two or more by
Page 114 and 115:
decency, which has an ancillary inc
Page 116 and 117:
where they will fall in.” The ice
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abolishing the latter but not the f
Page 120 and 121:
G(a)Abandonment of a conspiracyThe
Page 122 and 123:
4CHAPTER 4INCITEMENTAIntroduction4.
Page 124 and 125:
approach to that of the common law.
Page 126 and 127:
(v)Incitement need not be directed
Page 128 and 129:
verbs used to describe a physical a
Page 130 and 131:
4.23 It is noted that while the act
Page 132 and 133:
direction. The analysis of criminal
Page 134 and 135:
(iii)Inciting non-criminal conduct4
Page 136 and 137:
encouragement or assistance will in
Page 138 and 139:
Convention on Human Rights. 75 Inci
Page 140 and 141:
conduct incited. This position was
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5CHAPTER 5PROVISIONAL RECOMMENDATIO
Page 144 and 145:
(4) Impossible conspiracies5.21 The
Page 146:
The Law Reform Commission is an ind
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