Consultation Paper on Inchoate Offences - Law Reform Commission

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England and Wales prior to the Criminal Attempts Act 1981 the House ofLords, applying the common law, indicated the question of attempt was oneof fact. 109 This approach was recommended by the Law Commission forEngland and Wales 110 and codified in the Criminal Attempts Act 1981.2.73 The Law Commission for England and Wales now considers theapproach in the 1981 Act to be problematic in that the jury get to interpretthe law and conceivably could decide that a clear case of attempt (last acthaving been performed, requisite mens rea established) was not an attempt.This would be a departure from the usual procedure in criminal trials. 1112.74 It makes sense to opt for the approach in the UK CriminalAttempts Act 1981 to the fact/law issue only if it is sought to avoid having aprecise substantive definition of attempt whereby the question of what is anattempt is left to be decided by the jury on a case by case basis. This is theoption canvassed by Ian Dennis in 1980, 112 though it is clear that Dennismentioned this option as one that might be opted for out of exasperation withthe elusiveness of a definition of attempt. It follows that once it is sought tohave a legal definition for attempt it makes sense to have the issue of attemptone of law. There is no reason to depart from standard criminal proceduresave in the exceptional scenario of having attempt liability decided by jurieson an ad hoc basis unconstrained by legal parameters.2.75 The Commission provisionally recommends that the issue of whatcan constitute a criminal attempt should be a question of law.(i)Attempt and the target substantive offence2.76 Another procedural requirement that may have impact onsubstantive law is that a conviction for a particular offence precludes aconviction for attempting that particular offence. This is an example ofwhere a seemingly procedural law can have a bearing on the substantive law;that is, where prosecution has to prove (1) an intent to commit a specific109110111112DPP v Stonehouse [1978] AC 55.Law Commission for England and Wales Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at paragraphs 2.50-2.52.Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at paragraphs 14.23-14.25. The Law Commission forEngland and Wales thus recommends changing the existing rule, which put in placewhat was recommended in Law Commission for England and Wales Report onAttempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (No 1021980) at paragraphs 2.50-2.52.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 768.45
crime; (2) an overt act toward the commission of that crime and (3) a failureto consummate the crime. 113 It is not necessary that attempt be defined thisway in order to preclude conviction for both an offence and its attempt.2.77 Some criminal codes expressly rule out conviction for the targetoffence if there has been conviction for attempting it. 114 In any event, it isquite clear that conviction for the target offence of an attempt precludesconviction for its attempt and vice versa. 115 It is probably not necessary for acode provision on attempt to state this.(j)Attempt and criminal preparation2.78 In late 2007 the Law Commission for England and Walespublished “Conspiracy and Attempts – a <strong>Consultation</strong> <strong>Paper</strong>”. 116 The mainrecommendation relevant to the actus reus of attempt is Proposal 15, whichproposes that the offence of attempt be split into two offences: an offence ofattempt and an offence of criminal preparation. The actus reus of attempt isthe doing of the “last acts” towards completing a crime. The actus reus ofcriminal preparation is “conduct preparatory to the commission of anoffence”, but this conduct “must go sufficiently far beyond merelypreparatory conduct so as to amount to part of the execution of the intentionto commit the intended offence itself.” 117 These proposed offences carry thesame mens rea requirement and the same punishment (in that punishmentrelates to the target offence, but does not have to be more if the offence wasattempted rather than prepared).2.79 The Law Commission for England and Wales consider theapplication of attempt in England and Wales under the Criminal AttemptsAct 1981 unsatisfactory. The Court of Appeal‟s decision in R v Geddes 118illustrates, for the Law Commission for England and Wales, the undulyrestrictive scope of criminal attempt that the 1981 Act has put in place. InGeddes an attempt was held, on appeal, not to be made out where thedefendant had entered the lavatory in a boys‟ school equipped with materialsuseful in effecting a kidnap. The Court of Appeal viewed the defendant as113114115116117118State v Reeves (1996) 916 S.W.2d 909, extracted in Dressler Cases and Materials onCriminal Law (3rd ed Thomson West) at 763.An example is section 44(8) of Australian Capital Territory Criminal Code 2002.See discussion of common law doctrine of merger in Charleton, McDermott andBolger Criminal Law (Butterworths 1999) at 278.Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007).Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at paragraph 12.6-12.7.(1996) 160 JP 697; [1996] Crim LR 894.46
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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
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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 and 62: drafted by James Fitzjames Stephen,
Page 63: 2.68 The Law Commission for England
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
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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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