Consultation Paper on Inchoate Offences - Law Reform Commission

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having readied himself to make a kidnap but not having actually tried to doso. Thus the requirement of an act more than merely preparatory to thecommission of the offence was not satisfied.2.80 The key motivation for the two-offence proposal of the LawCommission for England and Wales is to preserve the label “attempt” givenits value in conveying much about the actor‟s culpability and dangerousness,while also making sure that the conduct that just falls outside the ordinarymeaning of “attempt” is still caught by means of the criminal preparationoffence. The latter was intended to be caught by the 1981 Act, according tothe Law Commission for England and Wales, but the more than merelypreparatory formula as applied in Geddes results otherwise.2.81 The proposed attempt offence relies on the notion of “last acts”.It is “last acts”, not “last act”. The plurality of last acts refers not to the lastact in an attempted murder plus the last act in an attempted theft, and so on,but rather to the last few acts in any one offence. So, for example, the lastacts of murder might include the taking aim with a gun and the pulling of thetrigger. When there is more that one last act towards a particular offence itis questionable whether “last” is an accurate word to use. If “last act” is notrestricted to the very last single act, then there is not really a last actrequirement.2.82 The proposed offence of criminal preparation is a strange offence.In sum, its actus reus is “more than merely preparatory preparation”. Itseems strange to label an offence something – here, criminal preparation –that does not constitute the offence in its pure form. The offence X is notcommitted where all that is done is X.2.83 Strange this may be, there is nothing illogical about it. Therereally does exist more than merely preparatory preparation, referred to alsoas “executory preparation”. 119 With the Law Commission for England andWales‟ proposal to provide illustrative examples of criminal preparation as aguide this can be appreciated. The proposed offence of criminal preparationis to include, but is not limited to, the following:“(1) D gains entry into a building, structure, vehicle or enclosureor (remains therein) with a view to committing the intendedoffence there and then or as soon as an opportunity presents itself.(2) D examines or interferes with a door, window, lock or alarmor puts in place a ladder or similar device with a view there andthen to gaining unlawful entry into a building, structure or vehicleto commit the intended offence within.119Law Commission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy andAttempts (CP No 183 2007) at paragraph 16.42.47
(3) D commits an offence or an act of distraction or deceptionwith a view to committing the intended offence there and then.(4) D, with a view to committing the intended offence there andthen or as soon as an opportunity presents itself:(a) approaches the intended victim or the object of the intendedoffence, or(b) lies in wait for an intended victim; or(c) follows the intended victim.” 1202.84 If it is desired to catch this type of conduct as criminal thequestion is whether the concept of attempt, coupled with the numerousspecial part offences that criminalise preparatory acts, achieve this?2.85 The Commission invites submissions on whether a general offenceof criminal preparation is desirable.(2) The mens rea of attempt(a)The specific intent requirement2.86 An attempt involves trying to do something; trying to dosomething usually means that the something is intended. 121 Of course, tryingto do something does not necessarily mean you intend it. An example oftrying to do something without intending it is kicking a toughened glasswindow in order to demonstrate its toughness. You are trying to break it, butyou intend it not to break. 1222.87 Haugh J in The People (Attorney General) v Thornton 123described a criminal attempt as an act done with “specific intent to commit aparticular crime.” For the avoidance of doubt it is worth pointing out that“intent to commit a particular crime” does not mean that a thought such as “Iintend to commit the criminal offence of X” must be attributable to thecriminal defendant. In Ireland, as elsewhere, criminal liability is imposedregardless of whether the accused knew that what he or she was doing wascriminal. The maxim “ignorance of the law is no excuse” generally applies.120121122123D refers to the defendant. Law Commission for England and Wales <strong>Consultation</strong><strong>Paper</strong> on Conspiracy and Attempts (CP No 183 2007) at paragraph 16.47 (footnotesomitted).See Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at 259,Marlin, “Attempts and the Criminal Law: Three Problems” (1976) 8 Ottawa L Rev518, 527.Example taken from Horder “Varieties of Intention, Criminal Attempts andEndangerment” (1994) 14 Legal Studies 335.[1952] IR 91, 93.48
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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 and 64: 2.68 The Law Commission for England
Page 65: crime; (2) an overt act toward the
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
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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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