Consultation Paper on Inchoate Offences - Law Reform Commission

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2.103 Glanville Williams, who was a member of the Working Party whoproposed the consequences/circumstances distinction in 1973, has defendedits usefulness by employing a further distinction between result-crimes andconduct-crimes. 146 Unlike murder, the result of which is death, rape is aconduct-crime, not a result-crime. In response to Williams, Richard Buxtonargued that Williams‟ result/conduct-crime distinction does not amelioratethe indeterminacy of the consequences/circumstances distinction, but merelymoves the indeterminacy on to the question of whether a crime is a conductcrime or a result crime. 147 There is no authoritative guide to which crimesare conduct-crimes and which are result-crimes.2.104 Khan (and R v Pigg 148 ) stand as authority for the law in Englandprior to 1981. The Law Commission for England and Wales in 1980expressly declined to recommend the consequence/circumstance forinclusion in statute. The Criminal Attempts Act 1981 accordingly did not useit. The Report on Codification of the Criminal Law of 1985 149 of the LawCommission for England and Wales again rejected it. But the Report of1989, 150 having briefly noted there may be difficulty in applying thedistinction, nonetheless recommends it, commenting that it is workable forcrimes such as rape and obtaining property by deception.2.105 The consequences/circumstances distinction may have difficultystanding up to rigorous analysis, yet it is capable of working reasonably wellin practice. It can be employed without contradicting the aim of keepingcriminal attempt in line with the common notion of attempt as purposiveactivity. That is, it is coherent to say the mens rea of attempt is intentionwhile allowing one of the elements – the circumstance element – of thetarget offence to be satisfied by recklessness.2.106 With codification in mind it is an open question whether thedefinition of attempt requires, or should contain, an express statement of theconsequences/circumstances distinction. The attempt provision could statewithout more, as per Haugh J in Thornton, that the mens rea of attempt isintent to commit a specific crime and leave it to the courts to employ the146147148149150Williams Textbook of Criminal Law (Stevens & Sons 1978) at 32. Williams and theliterature he criticises use the crime of abduction rather than rape as an illustrativeexample, but the observations about abduction would apply to rape also.Buxton “Circumstances, Consequences, and Attempted Rape” [1984] Crim LR 25.[1982] 1 WLR 762.Law Commission for England and Wales Report on Codification of the Criminal Law(No 143 1985) at paragraph 14.30.Clause 49(2) of Draft Code in Law Commission for England and Wales A CriminalCode for England and Wales, Volume 1: Report and Draft Criminal Code Bill (No.177 1989).55
consequences/circumstances distinction where necessary. The interpretationof the common law in the English cases could be cited as persuasiveauthority. Alternatively, the attempt provision could explicitly endorse thedistinction. This is done in the Draft Criminal Code for England and Wales,Clause 49(2) provides:“[A]n intention to commit an offence is an intention with respectto all the elements of the offence other than fault elements, exceptthat recklessness with respect to a circumstance suffices where itsuffices for the offence itself.” 1512.107 The Commission invites submissions on whether the definition ofmens rea for criminal attempt should employ an expressconsequences/circumstances distinction.(3) The target of an attempt(a)Special part offences2.108 It is key, and perhaps obvious, to note that criminal attempts relateor attach to substantive (or special part) offences. A criminal attempt is anattempt to commit a specific offence, which can be called the target offence.Under the common law scheme of attempt liability, it is not that some“attempts” (in the general sense of the word) are criminal. Rather,attempting crimes is criminal. Criminal attempts are entirely parasitic on thespecial part offences.2.109 At this stage it is worth recording what the law‟s view is on whichcrimes it is criminal to attempt to commit, for it is not simply the case that itis clearly a criminal attempt to attempt any and all crimes. Which specificoffences or what type of offence qualify as the target offence?Commentators suggest that at common law it is not an offence to attempt asummary offence, that only indictable offences can be criminallyattempted. 152 No clear authority is cited for this proposition; it seems to bejust a “generally accepted view.” 153 Proceeding on the basis that onlyattempts to commit indictable offences are criminal, some exceptionsremain.151152153Law Commission for England and Wales A Criminal Code for England and Wales,Volume 1: Report and Draft Criminal Code Bill (No. 177 1989).Ormerod, Smith & Hogan Criminal Law (11 th ed Oxford University Press 2005) at416. Law Commission for England and Wales Working <strong>Paper</strong> on Codification of thecriminal law: general principles: inchoate offences: conspiracy, attempt andincitement (WP No 50 1973) at 73-74 and Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at 54-55.Law Commission for England and Wales Working <strong>Paper</strong> on Codification of thecriminal law: general principles: inchoate offences: conspiracy, attempt andincitement (WP No 50 1973) at 73.56
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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
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R v O‟Brien [1954] SCR 666 CanR v
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INTRODUCTIONABackground to the proj
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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 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: a Working Party assisting the Law C
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
Page 118 and 119: abolishing the latter but not the f
Page 120 and 121: G(a)Abandonment of a conspiracyThe
Page 122 and 123: 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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