Consultation Paper on Inchoate Offences - Law Reform Commission

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(b)Inchoate offences2.110 Attempt to incite is recognised at common law. 154 The classicexample of attempt to incite occurs where a communication intended toincite a crime is intercepted and never reaches its intended recipient.Incitement is not made out because the communication never reached itsintended recipient, but on any test for attempt, attempted incitement is madeout. Some cases of attempted incitement could be viewed as cases ofincitement where it so happens that the recipient refuses to act on theincitement. 1552.111 Attempt to conspire is also recognised at common law. 156 InEngland and Wales the Criminal Attempts Act 1981 157 abolished this offence.A Supreme Court decision from Canada in 2006 confirms an earlierCanadian authority in holding that there is no such crime in current Canadianlaw. 158 In thinking up examples of an attempt to conspire it seems thatincitement or attempted incitement would almost always be made out.2.112 There is no crime of attempt to attempt because the requirementfor an act that is more than mere preparation would not be satisfied. Inaddition, it can be said that merely attempting to attempt a crime would notoccasion the requisite mens rea since aiming to bring about a mere attemptmeans that the target substantive offence is not sought to be completed and,therefore, is not intended.(i)A note on double inchoate liability2.113 In Shergill 159 the court declined to acknowledge a crime ofattempting to commit the statutory offence of facilitating the entry of non-EU citizens into the UK. 160 This case shows judicial unease with a relationalinchoate offence attaching to what is already an inchoate offence presentedas a special part offence via its enactment in statute.2.114 There is good reason to be uneasy about inchoate offencesattaching to other inchoate offences (“double inchoate crimes” 161 or double154155156157158159160161R v Banks (1873) 12 Cox CC 393; Ransford (1874) 13 Cox CC; R v ChelmsfordJustices ex p Amos [1973] Crim LR 437; R v Goldman [2001] Crim LR 822.R v Goldman [2001] Crim LR 822; Morton v Henderson (1956) JC 55.R v De Kromme (1892) 17 Cox CC 492.Section 1(4)(a).R v Déry [2006] SCC 53 affirming R v Dungey (1980) 51 CCC (2d) 86.[2003] CLY 871. See Ormerod Smith & Hogan: Criminal Law (11th Ed OxfordUniversity Press 2005) at 411.Section 25 of the Immigration Act 1971.See Robbins “Double Inchoate Crimes” (1989) 26 Harv J on Legis 1.57
inchoate liability) because such practice moves the net of criminal liabilityout very far from the central prohibited harm. UK anti-terrorism legislationprovides a rather extreme example. The offence of encouragement ofterrorism under the Terrorism Act 2006 is made out, among other ways, bypublishing a statement that is understood by some members of the public toindirectly encourage them to assist someone to prepare to train to threaten tocommit acts of violence against property in order to advance an ideologicalor political aim. This description is arrived at by combining the definitionsin the statute. It sounds an absurd thing to criminalise because it is so farremoved from an actual act of terrorism. It encroaches on personal liberty,in particular, freedom of expression. No person has yet been prosecuted forthe encouragement of terrorism offence, though it has been in force in theUK since mid-2006. This in itself is little consolation for those concernedabout having well-constructed substantive criminal law because it meansthere is great disparity between what the law says is criminal and what isactually getting recognised as criminal by the criminal justice system.2.115 If double inchoate liability is thought a problem then the questionis whether judges can legitimately decline to acknowledge relationalinchoate offences attaching to some special part inchoate offences? This tobe done where there are statutory inchoate offences and general partprovisions providing for relational inchoate offences to attach to all offences.Alternatively, the question could be put, by what criteria may judges refuseto countenance double inchoate liability?2.116 First of all, it is noted that some relational inchoate offences arerestated in statutes. A prime example is attempted murder, which is codifiedin section 11 of the Offences Against the Person Act 1861. 162 This isenumerating in statute what should already be available to charge at commonlaw. It is important to resist inferring an offence of attempt to attemptmurder just because “attempted murder” is presented in statute as asubstantive stand alone offence which attempt as a general relational offencecan attach to. An offence of attempt to attempt murder, apart from soundingabsurd, simply cannot satisfy the definition of attempt. Logic and commonsense is all a judge needs to resist recognising attempted attempts.2.117 Incitement to incite hatred under the Prohibition of Incitement toHatred Act 1989 Act would be a different matter since the incitement tohatred offence enacted in the 1989 Act is not a restatement of a pre-existingrelational inchoate offence but rather a completely new offence since thething incited – hatred – was not, and is not, an offence.162Other prominent examples are section 4 of the Offences Against the Person Act 1861(soliciting murder) and section 71 of the Criminal Justice Act 2006 (conspiracy tocommit a serious offence).58
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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
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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 and 74: a Working Party assisting the Law C
Page 75: consequences/circumstances distinct
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.
Page 124 and 125: 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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