Consultation Paper on Inchoate Offences - Law Reform Commission

More documents

Recommendations

Info

the defendant had abandoned her quest to gain money for work she had notdone. 2112.156 In contrast to the common law approach, the American LawInstitute‟s Model Penal Code provides for each of the three inchoateoffences an affirmative defence of renunciation of criminal purpose. 212 Merevoluntary renunciation of criminal purpose suffices as a defence to attempt.American courts‟ interpretation of the common law had tended to recognisethe defence even before codification. 213 The German Penal Code recognisesa general defence of abandonment, which can be made out by preventing thecompletion of the target criminal activity. 214 A number of other jurisdictionshave some version of the defence. 215 The Italian Penal Code, unusually for acivil law jurisdiction, does not recognise abandonment as a defence toattempt liability. Voluntarily preventing the target offence can, however,result in a one third to one half reduction in punishment for attempt. 216(2) A defence of abandonment?2.157 There are a number of arguments in favour of having anabandonment defence.i) When the law allows for someone to escape attempt liabilitybecause they voluntarily desisted, it respects citizens asresponsible agents who are open to persuasion to desist from theirwould-be criminal endeavours. 217 This could be called anargument from moral autonomy. This argument might be thoughtto lack appreciation of the reality of attempting crime. That is,those who attempt crime have already made their choice aboutwhat they want to do. We respect people by ensuring theirfreedom to desist from crime; we do not have to additionallyensure freedom for those who voluntarily try to commit crime tosubsequently turn back at any and all points of their specificcriminal endeavour.211212213214215216217[1964] IR 169, 196-197.Sections 5.01(4), 5.02(3), and 5.03(6) of the Model Penal Code.See Wechsler, Jones and Korn “The Treatment of Inchoate Crimes in the Model PenalCode of the American Law Institute: Attempt, Solicitation, and Conspiracy” (1961)61 Columbia Law Review 571at 615-616, citing, among other cases, Weaver v State116 Ga 550, 42 SE 745 (1902); Parker v State 29 Ga App 26, 113 SE 218 (1922).Section 24 of the German Penal Code.France, Norway, Malta, Switzerland.Article 56 of the Italian Penal Code. See McAuley and McCutcheon CriminalLiability (Round Hall Press 2000) at 451.Duff Criminal Attempts (Oxford University Press 1996) at 395-396, and at 388-389.71
ii)Having an abandonment defence gives the would-be criminalworking towards a crime a prudential reason or motive to desistfrom completing that crime. This, it might be supposed, wouldresult in a number of what otherwise would have been completedcrimes being abandoned and hence less criminal harm than ifthere was no such defence. A weakness of this argument is that itis speculative, and perhaps unrealistic, 218 to suppose that would-becriminals weigh up the pros and cons of continuing their effortstowards crime right up to the final moment, and even if they do,that the defence of abandonment could have much impact, giventhat there is always strong reason to desist since uncompletedcrimes are much less detected than completed crimes. 219 Inaddition, if an abandonment defence provides a real incentive todesist an embarked-on crime it also provides a real, albeit lesspowerful, incentive to embark on crime in the first place since itmakes embarking on crime not the “fatal” decision it otherwise isfrom the point of view of an actor crossing into the area ofcriminal liability. In other words, with an abandonment offencethe actor lacks an incentive to refrain from working towards crime– that once he crosses the threshold of attempt there is, in theory,no escaping criminal liability – that he has when there is noabandonment defence. 2202.158 Arguments against having a defence of abandonment include:i) Once a criminal attempt, which is a complete offence in itself, ismade out why should liability further depend on the particularreason why the target offence of the attempt was not completed?In criminal law generally, subsequent regret or remorse does notalter liability. Giving back stolen money does not alter liabilityfor theft, for example. (Such behaviour may have relevance tolegal issues other than liability, sentencing being the chiefexample.) This is logical: we cannot change the past, yet thedefence of abandonment, in effect, allows what was in law acriminal attempt at one point in time to be changed to not-acriminalattempt at a time in the future. 221 This can be called theargument from logic. The Law Commission for England and218219220221Stuart Canadian Criminal Law (4 th ed Carswell 2001) at 671.See Fletcher Basic Concepts of Criminal Law (Oxford University Press 1998) at 183.See Wechsler, Jones and Korn “The Treatment of Inchoate Crimes in the Model PenalCode of the American Law Institute: Attempt, Solicitation, and Conspiracy” (1961)61 Columbia Law Review 571 at 617-618.This expresses the reasoning that common law courts have provided in declining toacknowledge a defence of abandonment. See Kosh (1965) 44 CR 185.72
Page 1:
Consultation <stro
Page 4 and 5:
Law Reform CommissionTHE LAW REFORM
Page 6 and 7:
Law Reform CommissionLaw Reform Res
Page 8 and 9:
Law Reform CommissionContact Detail
Page 10 and 11:
TABLE OF CONTENTSTable of Legislati
Page 12:
TABLE OF LEGISLATIONAbortion Act 19
Page 15 and 16:
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 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 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: just to make it look like he would
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
Page 130 and 131: 4.23 It is noted that while the act
Page 132 and 133: direction. The analysis of criminal
Page 134 and 135: (iii)Inciting non-criminal conduct4
Page 136 and 137: encouragement or assistance will in
Page 138 and 139: Convention on Human Rights. 75 Inci
Page 140 and 141:
conduct incited. This position was
Page 142 and 143:
5CHAPTER 5PROVISIONAL RECOMMENDATIO
Page 144 and 145:
(4) Impossible conspiracies5.21 The
Page 146:
The Law Reform Commission is an ind
show all

Consultation Paper on Inchoate Offences - Law Reform Commission

Create successful ePaper yourself

Delete template?

Save as template?