Consultation Paper on Inchoate Offences - Law Reform Commission

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The accused who pleads, no matter how sincerely, that they did not knowthat what they were doing was criminal is generally not entitled to any relieffrom liability. That the accused did not know or realise their act wasprohibited may well effect their treatment by the criminal justice system atstages other than trial for liability, for example, at sentencing stage. So,strictly speaking, for an attempt the guilty person does not have to intend todo a particular crime, but rather must intend to do an act, which happens tobe contrary to the criminal law.2.88 There are two significant aspects of Haugh J‟s description of themens rea of attempt. First, intent, rather than other states of mind(recklessness, negligence) is required. Intention in this respect is directintention. Direct intention can be identified by asking how an actor feelsabout a consequence not materialising. 124 So if the enquiry is whether anactor‟s (direct) intention was to kill, then the question to ask is whether theactor would have considered what he did a failure if a killing did not result.In attempt liability, even where the target offence is one for which a state ofmind different from intent suffices, the person allegedly attempting thattarget offence must intend to commit it in order to be guilty of criminalattempt. The substantive offence of endangerment is committed byintentionally or recklessly engaging in conduct creating a substantial risk ofdeath or serious harm. 125 But to convict for attempted endangerment itwould need to be established that the defendant intentionally engaged in theputative risky conduct (which as it so happened created no actual risk – thisbeing why attempt, rather than the complete offence, is charged).2.89 The second significant aspect of the mens rea of attempt is thatthe core of the target offence must be intended. In other words, the mens reaof attempt must relate exactly to the target offence. This requirement can beillustrated using the example of attempted murder. Murder requires mensrea of either intent to cause death or intent to cause serious injury. 126 But forattempted murder, intent to cause death is required; intent to cause merelyserious injury will not suffice. This is the common law position, 127 which124125126127Duff Intention, Agency and Criminal Liability (Blackwell 1990) at 61.Section 13(1) of the Non-Fatal Offences Against the Person Act 1997.The Commission has recently made final its recommendation that mens rea formurder be expanded to included a certain type of reckless killing. See Law ReformCommission Report on Homicide: Murder and Involuntary Manslaughter (LRC 87-2008) and <strong>Consultation</strong> <strong>Paper</strong> on Homicide: The Mental Element in Murder (LRCCP-2001).R v Schofield [1784] Cald 397, 403; R v Whybrow [1951] 35 Cr App R 141.49
the Court of Criminal Appeal has approved in The People (DPP) v Douglasand Hayes. 1282.90 In Douglas and Hayes the accused had been convicted of shootingwith intent to murder contrary to section 14 of the Offences Against thePerson Act 1861. The accused had fired shots at an occupied Garda car.The trial judge was of the opinion that, had the shots caused death, murderwould have been committed. On this basis according to the trial judge thesection 14 offence, which does not require shots to actually hit a person,could be made out. The Court of Criminal Appeal rejected this reasoningand overturned the conviction.2.91 In Douglas and Hayes the trial judge incorrectly applied thestatutory offence of shooting with intent to murder. The offence requiredintent to murder; the trial judge said reckless disregard of the risk of killingsufficed. The ratio the Court of Criminal Appeal decision in Douglas andHayes corrects this misinterpretation. Additionally, obiter dictum inDouglas and Hayes clearly approves (despite calling the situation“anomalous”) of R v Whybrow 129 and R v Mohan, 130 which are authority forthe proposition that shooting with intent to cause no more than serious injuryis murder if it results in death, yet not attempted murder if death does notresult. A Scots authority, Cawthorne v HM Advocate, 131 which holds,contrary to the position in England and Wales, that mens rea sufficient forthe target offence is sufficient for an attempt at that offence was implicitlyrejected by the Court of Criminal Appeal in Douglas and Hayes. TheCanadian courts formerly 132 favoured the same approach as Scots law, butnow 133 endorse the same position as Ireland and England.(i)Attempting crimes of recklessness?2.92 Since the Irish courts appear to endorse the position that intentalone suffices as a state of mind for the mens rea of attempt, it follows thatcrimes of recklessness cannot be attempted – that is, they are logicallyprecluded since one cannot intentionally try to do something recklessly.This statement requires qualification. Consider the case of manslaughter,128129130131132133[1985] ILRM 25, approving R v Whybrow (1951) 35 Cr App R 141 and R v Mohan[1976] QB 1.(1951) 35 Cr App R 141.[1976] QB 1.1968 JC 32; 1968 SLT 330.Lajoie v R [1974] SCR 399. For criticism of Lajoie see Marlin “Attempts and theCriminal Law: Three Problems” (1976) Ottawa L Rev 518 and MacKinnon “MakingSense of Attempts” (1982) 7 Queen‟s LJ 253.Ancio (1984) 39 CR (3d) 1.50
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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
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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 and 66: crime; (2) an overt act toward the
Page 67: (3) D commits an offence or an act
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
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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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