Consultation Paper on Inchoate Offences - Law Reform Commission

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(d)Codifying the target offence2.125 Some code provisions on attempt as a relational offence expresslystipulate which categories of crime it is criminal to attempt. The CriminalAttempts Act 1981 of England and Wales provides that the target of acriminal attempt must be triable in England and Wales as an indictableoffence and expressly excludes some categories. 1692.126 It is apparent that if the provisions on attempt as a relationaloffence in the general part of a criminal code are to be comprehensive 170 thenthe target of a criminal attempt must be specified. The Criminal AttemptsAct 1981 of England and Wales provides a model for this. The general partprovision on attempt, after providing it is an attempt to commit an offence,could say that this applies to any offence which, if it were completed, wouldbe triable in Ireland as an indictable offence.2.127 There is a question whether this should be limited to indictableoffences. Perhaps not much turns on this question given that only a minorityof special part offences are exclusively summary offences. Summaryoffences are still offences and as such the rationale of relational inchoateoffences applies. In any event, a code provision on attempt should makecertain the matter.2.128 The Commission invites submissions on whether both indictableand summary offences should be capable of being criminally attempted.CImpossible attempts(1) Categories of impossible attempts2.129 Is it, and should it be, criminal to attempt the impossible? As amatter of description of what the common law is, there is no simple answer.Sometimes at common law impossibility has been held to bar attemptliability, 171 sometimes not. 172 Types of impossibility need to bedifferentiated and defined in order to identify patterns in the case law. Somejudges and writers have used a dual classification of factual and legalimpossibility; some have insisted on greater differentiation within thesecategories. 173 The adjectives “legal” and “factual” are unhelpful because169170171172173Section 1(4) of the Criminal Attempts Act 1981. Excluded target offences includeconspiracy as a relational inchoate offence.See Report of the Expert Group on the Codification of the Criminal Law Codifyingthe Criminal Law (Government Publications 2004) at 49.Haughton v Smith [1975] AC 476.R v Whyte [1910] 2 KB 124.Haughton v Smith [1975] AC 476.61
either label could be applied to a case of impossibility depending on whichway it is looked at. 174 Consider the famous case of Haughton v Smith. 175The defendant received what he believed was “stolen” corned beef. But thecorned beef was actually under the control of the police. The police hadsearched the van transporting the corned beef and then allowed the van tocontinue its journey under covert police supervision. So Haughton isdescribed as a case of factual impossibility – the defendant could not havecommitted the substantive offence of receiving/handling stolen goods in thecircumstances because the goods he received were not in fact stolen. But thestate of being “stolen” is a construct of the law. Nothing intrinsic to thecorned beef changed when the police discovered it; yet in the view of thelaw the corned beef changed from being “stolen” to “not stolen”.Additionally, it is a matter of law that the goods in question must be “stolen”for the purpose of establishing the offence of handling stolen goods. It iseasy to imagine a different legal regime where stolen goods are consideredstolen until returned to their true owner. With these rather obvious anduncontroversial observations in mind one could comfortably describeHaughton as a case of legal impossibility: it was impossible for thedefendant to commit the substantive offence of handling stolen goods in thecircumstances because the law is such that receiving or handling goods thatare under control of the police does not constitute the offence.2.130 Instead of “factual” and “legal”, more elucidating phrases can beused when categorising impossible attempts. So what it often called a caseof legal impossibility can be called a case of an “imaginary crime”. This iswhere a person attempts to do, or in fact does, something which they think iscriminal, but is actually not criminal. R v Taafe 176 is an example. Thedefendant brought sealed packages into England believing them to containcurrency and believing that importing currency was a crime. As a matter oflaw, importing currency is not, and was not, a crime. The English Court ofAppeal held that no criminal attempt was made out because one cannotcriminally attempt to do what is not criminal; where an imaginary crime isattempted the definition of a criminal attempt will not be satisfied. Theimaginary crime case is best viewed not as a case of impossibility at all, butrather simply as a case where the definition of attempt – which requires thetarget of an attempt to be criminal – is not made out.2.131 The “factual” impossibility label is applied to the situation wherethe accused attempts to do something, which is indeed a crime, but because174175176The argument here is influenced by HLA Hart, “The House of Lords on Attemptingthe Impossible” in Hart Essays in Jurisprudence and Philosophy (Clarendon, Oxford,1983) at 367-391.[1975] AC 476.[1983] 1 WLR 627.62
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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
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CHAPTER 1INCHOATE LIABILITYAIntrodu
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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 and 76: consequences/circumstances distinct
Page 77 and 78: inchoate liability) because such pr
Page 79: Oireachtas has sole law-making powe
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.
Page 126 and 127: (v)Incitement need not be directed
Page 128 and 129: 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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