Consultation Paper on Inchoate Offences - Law Reform Commission

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ii)(a)Wales has stated that “[t]he availability of the defence would belogically indefensible.” 222 A major problem for this argument isthat it could be deflected by redefining criminal attempt so that anattempt is not made out in the first place if it was abandonedvoluntarily. In other words, build in a non-abandonmentrequirement into the definition of attempt. For example, attemptis committed where an actor “does any act toward the commissionof [a] crime, but fails or is prevented or intercepted in theperpetration thereof”. 223 The French Penal Code‟s definition ofattempt would achieve this effect. Article 121-5, translated: “Anattempt is committed where, being demonstrated by a beginningof execution, it was suspended or failed to achieve the desiredeffect solely through circumstances independent of theperpetrator’s will.” (Emphasis added) This definition implies thatif the attempt fails because of reasons dependent or connectedwith the perpetrator‟s will then the definition of attempt is notsatisfied.Some abandoned attempts still cause great “harm”. For example,the would-be rapist who discontinues his efforts at the last minutemay still have caused immense fear and anxiety. 224 Of course,depending on the facts there are other offences available tocharge, aggravated sexual assault for example. But what thewould-be rapist did is properly labelled attempted rape rather thansome degree of sexual assault. This could be called an argumentfrom fair labelling.What should constitute abandonment?2.159 If a defence of abandonment is thought desirable it remains to beworked out when it should be available. A requirement that theabandonment be voluntary almost goes without saying, for to recogniseinvoluntary abandonment also would contract criminal attempt so much as toeffectively abolish it. Where the defence is available the meaning ofvoluntary is more restricted than the ordinary meaning of the word. To be avoluntary abandonment in law the defendant must have ceased his worktowards substantive crime for reasons such as:222223224Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at paragraph 6.57.Quoted in Wechsler, Jones and Korn “The Treatment of Inchoate Crimes in the ModelPenal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy”(1961) 61 Columbia Law Review 571 at 616.Duff Criminal Attempts (Oxford University Press 1996) at 396.73
i) The would-be perpetrator had a change of heart; he or she decidesto discontinue for moral reasons.ii)The would-be perpetrator decides prudentially to obey the law.That is, they decide, all things considered, they will be better off ifthey do not break the law.2.160 In contrast, the following reasons, though in some sense acted on“voluntarily”, are not recognised as being sufficient for voluntaryabandonment:i) The would-be perpetrator is faced with a very high probability ofgetting “caught” whether by law enforcement officers orotherwise. Section 5.01(4) MPC: “Renunciation of criminalpurpose is not voluntary if it is motivated, in whole or in part, bycircumstances, not present or apparent at the inception of theactor‟s course of conduct, that increase the probability ofdetection or apprehension or that make more difficult theaccomplishment of the criminal purpose.”ii)iii)The would-be perpetrator realises their pursuit of a substantiveoffence will not give them the satisfaction they seek. This shouldbe wide enough to encompass the person who desists because herealises he will not be able to achieve what he is trying to do. 225The completion of the substantive offence is merely postponed.Section 5.01(4) MPC: “Renunciation is not complete if it ismotivated by a decision to postpone the criminal conduct until amore advantageous time or to transfer the criminal effort toanother but similar objective or victim.” Nevertheless, there is aGerman case 226 where the defence was held available to adefendant who had desisted from raping on a promise ofconsensual sex at a later point.2.161 Even if, in principle, the arguments in favour of having a defenceof abandonment outweigh those against, putting the defence in place posesfurther difficulties:i) What type of reverse onus, if any, to place on the accused?ii)Specifying what is voluntary.225226See Stuart Canadian Criminal Law (4 th ed Carswell 2001) at 671, Fletcher BasicConcepts of Criminal Law (Oxford University Press 1998) at 183.See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 451citing the German case, Judgment of 7 BGHSt, 1995, 296. Case discussed byFletcher Basic Concepts of Criminal Law (Oxford University Press 1998) at 183.74
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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
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D(1) LegalityCriminal law theory en
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1.16 Some textbook writers reverse
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one resulted in conviction by the j
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1.30 Evident here is a principled r
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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 and 90: just to make it look like he would
Page 91: ii)Having an abandonment defence gi
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
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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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