Consultation Paper on Inchoate Offences - Law Reform Commission

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2.64 What formula of words should be used to codify the proximate actapproach? This boils down to a choice between using the word “proximate”or either of “more than merely preparatory” or “not remotely connectedwith…”. Using “proximate” is simpler and avoids the tangles that the otherscan lead to given that they are negative definitions. Any promise of greatercertainty in the more convoluted formulations is illusory. Additionally, aproximate act definition can be consistent with impossible attemptsconstituting attempts since the evaluation of the proximate act will be madefrom the actor‟s perspective rather than an objective bystander‟s perspective.2.65 The Commission provisionally recommends codification of theproximate act approach to defining the actus reus of attempt and invitessubmissions on which formula of words should be used.2.66 The Commission invites submissions on whether a list ofillustrative examples should accompany a definition of attempt.(h)Act and omission2.67 It is accepted that there should be attempt liability for an omissionwhere the target special part offence is one that can be committed byomission. 100 The classic example is trying to starve a baby by omitting tofeed it. 101 There has been comment on conceptual difficulties with thenotion of attempting by omission, 102 but really these concerns are nodifferent to the concerns with liability for omission per se; no extra difficultyis added by the notion of attempt. It just has to be remembered that attemptby omission attaches only to a special part offence only in circumstanceswhere that special part offence may by committed by omission. Whatshould a code provision on attempts say about attempted omissions orattempting by omission? Some Code provisions do not explicitly refer toomissions, 103 some do. 104100101102103See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 445,footnote 267.See Dennis “The Law Commission Report on Attempt and Impossibility in Relationto Attempt, Conspiracy and Incitement: (1) The Elements of Attempt” [1980] CrimLR 758 at 770-771 and using Gibbins and Proctor (1918) 13 Cr App R 134. See alsoR v Instan [1893] 1 QB 450, cited by Dennis “The Criminal Attempts Act 1981”[1982] Crim LR 5 at 8, footnote 15.See Law Commission for England and Wales Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at paragraph 2.105saying attempt concept not meaningful in relation to omissions.Section 1 of Criminal Attempts Act 1981 (England and Wales); Australian state codesincluding section 44 of the Australian Capital Territory Criminal Code 2002 andsection 4 of the Northern Territory Criminal Code.43
2.68 The Law Commission for England and Wales has recentlyaddressed this issue. 105 The Law Commission for England and Walesendorses its previous recommendation 106 that a code provision on attemptshould explicitly provide that an omission may constitute an attempt wherethe special part offence attempted is one that can be committed by omission.That this is so might be thought so obvious as to not need to be included in acode provision on attempt.2.69 The Commission invites submissions on whether there should beexplicit recognition that where a substantive offence can be committed byomission, attempting that offence can also be committed by omission.(i)A question of fact or law?2.70 This <strong>Consultation</strong> <strong>Paper</strong> does not purport to address criminalprocedure for inchoate offences. But some procedural issues get caught upin the statutory definition of the substantive law. Some statutory provisionson attempt 107 expressly deal with whether the jury or the judge ultimatelydecides if the evidence establishes a criminal attempt. These statutoryprovisions do this by specifying whether the existence of an attempt is aquestion of law or a question of fact.2.71 If the existence of an attempt is a question of law the procedure isthat the judge decides whether the facts (as accepted by the jury) aresufficient to constitute an attempt. The procedure is the same as this if theexistence of attempt is a question of fact, save for one significant difference:the jury get to second guess (and possibly overrule) the judge‟s opinionwhether particular facts (if accepted) amount to a criminal attempt.2.72 In The People (Attorney General) v England 108 Gavan Duffy Pupheld the trial judge‟s decision that the facts disclosed in evidence couldnot in law amount to a criminal attempt. This suggests an understanding ofattempt as an issue of law, for otherwise the Court of Criminal Appeal wouldhave said that the matter should have been left to the jury even if the trialjudge considered the evidence incapable of establishing attempt liability. In104105106107108Section 24 of the Criminal Code of Canada; section 5.01 of the Model Penal Code;section 72 of the New Zealand Crimes Act 1961; section 27 of the Samoa CrimesOrdinance 1961 section 27.Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007).Clause 49(3) of A Criminal Code for England and Wales in Law Commission forEngland and Wales Report and Draft Criminal Code Bill (No 177 1989).Criminal Attempts Act 1981 (England and Wales). Section 24(2) of the CanadianCriminal Code.(1947) 1 Frewen 81, 84.44
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Consultation <stro
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Law Reform CommissionTHE LAW REFORM
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Law Reform CommissionLaw Reform Res
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Law Reform CommissionContact Detail
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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 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: drafted by James Fitzjames Stephen,
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
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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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