Consultation Paper on Inchoate Offences - Law Reform Commission

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