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Consultation PaPer INCHOATE OFFENCES (lrC CP 48 – 2008) www.lawreform.ie coNsultatioN PaPer INCHOATE OFFENCES (lrc cP 48 – 2008) © coPyright law reform commission 2008 First Published February 2008 ISSN 1393-3140 i law reForM coMMissioN THE LAW REFORM COMMISSION’S ROLE the law reform commission is an independent statutory body established by the Law Reform Commission Act 1975. the commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. since it was established, the commission has published over 130 documents containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. the commission’s role is carried out primarily under a Programme of law reform. its Third Programme of Law Reform 2008-2014 was prepared by the commission following broad consultation and discussion. in accordance with the 1975 act, it was approved by the government in december 2007 and placed before both houses of the oireachtas. the commission also works on specific matters referred to it by the attorney general under the 1975 act. since 2006, the commission’s role includes two other areas of activity, statute law restatement and the legislation directory. statute law restatement involves the administrative consolidation of all amendments to an act into a single text, making legislation more accessible. under the Statute Law (Restatement) Act 2002, where this text is certified by the attorney general it can be relied on as evidence of the law in question. the legislation directory - previously called the chronological tables of the statutes - is a searchable annotated guide to all legislative changes. after the commission took over responsibility for this important resource, it decided to change the name to legislation directory to indicate its function more clearly. ii INCHOATE OFFENCES MEMBERSHIP the law reform commission consists of a President, one full-time commissioner and three part-time commissioners. The commissioners at present are: President: The hon Mrs Justice catherine Mcguinness, former Judge of the supreme court Full-time Commissioner: Patricia t. rickard-clarke, solicitor Part-time Commissioner: Professor Finbarr Mcauley Part-time Commissioner: Marian shanley, solicitor Part-time Commissioner: Donal o’donnell, senior counsel iii law reForM coMMissioN LAW REFORM RESEARCH STAFF Director of Research: Raymond byrne bcl, llM (Nui), Barrister-at-law Legal Researchers: Áine clancy bcl, llM (Nui) Kate dineen llb, llM (cantab) Philip Flaherty bcl, llM (Nui), diop sa gh (Nui) Eleanor leane llb, llM (Nui) Richard McNamara bcl, llM (Nui) Gemma Ní chaoimh bcl, llM (Nui) Verona Ní dhrisceoil bcl (dlí agus gaeilge), llM (Nui) Jane o’grady bcl, llb (Nui), lPc (college of law) Charles o’ Mahony ba, llb (Nui), llM (lond), llM (Nui) Nicola white llb, llM (dub) attorney-at-law (Ny) Joanne williams llb, llM (Nui), barrister-at-law STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma clissmann, ba (Mod), llb, dip eur law (bruges), solicitor Legal Researchers: John P. byrne bcl, llM (Nui), barrister-at-law John Kenny llb, llM (cape town), barrister-at-law LEGISLATION DIRECTORY Project Manager for Legislation Directory: Deirdre ahern llb, llM (cantab), dip e-commerce (law society), solicitor Legal Researchers: Eóin McManus ba, llb (Nui), llM (lond) Tina o’ reilly bcl (law and german), llM (Nui) iv INCHOATE OFFENCES ADMINISTRATION STAFF Secretary/Head of Administration: John Quirke Head of Administration and Development: John glennon Higher Executive Officer: Alan heade Executive Officers: Emma Kenny Darina Moran Peter trainor Legal Information Manager: Conor Kennedy ba, h dip lis Cataloguer: Eithne boland ba (hons), hdip ed, hdip lis Clerical Officers: Ann browne Ann byrne Liam dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS CONSULTATION PAPER David Prendergast llb, llM (lond), barrister-at-law v law reForM coMMissioN CONTACT DETAILS Further information can be obtained from: Head of administration and development Law reform commission 35-39 shelbourne road Ballsbridge Dublin 4 TELEPHONE: +353 1 637 7600 FAX: +353 1 637 7601 EMAIL: [email protected] WEBSITE: www.lawreform.ie vi INCHOATE OFFENCES ACKNOWLEDGEMENTS the commission would like to thank the following people for their assistance in the preparation of this consultation Paper: Dr Bebhinn Donnelly, lecturer, school of law, swansea university Ms Elizabeth Howlin, office of the director of Public Prosecutions Full responsibility for the content of this publication lies with the commission. vii TABLE OF CONTENTS Table of Legislation xi Table of Cases xiii INTRODUCTION 1 A Background to the project 1 B Introduction to inchoate offences 2 C Scope of the project 3 D Outline of this Consultation Paper 4 CHAPTER 1 INCHOATE LIABILITY 7 A Introduction 7 B Historical development 7 C The rationale of inchoate offences 9 (1) Retributivism and harm prevention 9 (2) Rationale of conspiracy 10 D Criminal law theory engaged by inchoate offences 11 (1) Legality 11 (2) Subjectivism and objectivism 12 (3) The significance of mens rea for inchoate offences 12 E Inchoate liability and secondary liability 13 F Inchoate offences in practice 14 (1) Attempts 14 (2) Inchoate offences in the wide sense 15 (3) Conspiracy 16 G Codification of inchoate offences 17 CHAPTER 2 ATTEMPT 21 A Introduction 21 B The components of attempt 22 (1) The actus reus of attempt 22 (2) The mens rea of attempt 48 (3) The target of an attempt 56 C Impossible attempts 61 (1) Categories of impossible attempts 61 (2) Irish judicial comment on impossible attempts 63 (3) The debate about impossible attempts 64 (4) The irrelevance of impossibility 67 D Abandonment of an attempt 69 (1) The relevance of abandonment to attempt liability 69 (2) A defence of abandonment? 71 CHAPTER 3 CONSPIRACY 77 A Introduction 77 B Agreement in conspiracy 78 ix (1) Parties to agreement 79 (2) The mens rea of conspiracy 87 C The unlawfulness requirement 90 (1) The meaning of unlawful 90 D Specific common law conspiracies 92 (1) Conspiracy to defraud 92 (2) Conspiracy to corrupt public morals 93 (3) Other specific common law conspiracies 94 E Restricting conspiracy 95 (1) Arguments for and against restricting conspiracy to agreements to commit crimes 96 (2) The case for retaining conspiracy to defraud 97 (3) Developments and recommendations elsewhere 98 F Impossible conspiracies 99 G Abandonment of a conspiracy 101 CHAPTER 4 INCITEMENT 103 A Introduction 103 B The components of incitement 103 (1) The actus reus of incitement 103 (2) The mens rea of incitement 109 (3) The conduct incited 113 C Issues unique to incitement 116 (1) A perceived gap in liability 116 (2) Free speech 118 D Impossible incitements 120 E Abandonment of an incitement 121 CHAPTER 5 PROVISIONAL RECOMMENDATIONS 123 A Attempt 123 (1) Actus reus of attempt 123 (2) Mens rea of attempt 123 (3) Target of an attempt 123 (4) Impossible attempts 124 (5) Abandoned attempts 124 B Conspiracy 124 (1) Actus reus of conspiracy 124 (2) Mens rea of conspiracy 124 (3) The target of a conspiracy 124 (4) Impossible conspiracies 125 (5) Withdrawal from a conspiracy 125 C Incitement 125 (1) Actus reus of incitement 125 (2) Mens rea of incitement 125 (3) The target of an incitement 125 (4) Retaining incitement 125 (5) Impossible incitements 125 (6) Withdrawn incitements 125 x TABLE OF LEGISLATION Abortion Act 1967 1967, c. 87 Eng Child Trafficking and Pornography Act 1998 1998, No. 22 Irl Crimes Act 1958 (Vic) 1958, No. 6231 Aus Crimes Act 1961 1961, No. 43 NZ Criminal Attempts Act 1981 1981, c. 47 Eng Criminal Code Act 1899 (Qld) 1899 Aus Criminal Justice (Theft and Fraud Offences) Act 2001 2001, No. 50 Irl Criminal Justice Act 2006 2006, No. 26 Irl Criminal Law Act 1977 1977, c. 45 Eng Criminal Law Act 1997 1997, No. 14 Irl Explosive Substances Act 1883 1883, 46 & 47 Eng Vict. c. 3. Firearms Act 1925 1925, No. 17 Irl Firearms and Offensive Weapons Act 1990 1990, No. 12 Irl Immigration Act 1971 1971, c. 77 Eng Italian Penal Code Ita Misuse of Drugs Act 1971 1971, c. 38 Eng Non-Fatal Offences Against the Person Act 1997 1997, No. 26 Irl Offences Against the Person Act 1861 1861, 24 & 25 Eng Vict. c. 100 Offences Against the State Act 1939 1939, No. 13 Irl Prohibition of Incitement to Hatred Act 1989 1989, No. 19 Irl Road Traffic Act 1961 1961, No. 24 Irl Serious Crime Act 2007 2007, c. 27 Eng Sexual Offences Act 1967 1967, c. 60 Eng South Australia Criminal Law Consolidation Act 1935 Aus Terrorism Act 2006 2006, c. 11 Eng xi TABLE OF CASES Anderton v Ryan [1985] AC 560 Eng Attorney General (SPUC) v Open [1988] IR 593 Irl Door Counselling Ltd Attorney General for England and [1986] IR 597 Irl Wales v Brandon Book Publishers Ltd Attorney General v Oldridge [2001] 2 ILRM 125 Irl Attorney General v Richmond (1935) 1 Frewen 28 Irl Attorny v Starling (1664) 83 ER 1164 Eng Board of Trade v Owen [1957] AC 602 Eng Brandenburg v Ohio (1969) 395 US 444 US Cawthorne v HM Advocate 1968 JC 32 Sco Churchill v Walton [1967] 2 AC 224 Eng Connolly v Loughney (1953) 87 ILTR 49 Irl Corway v Independent Newspapers [1999] 4 IR 484 Irl Davey v Lee [1967] 2 All ER 423 Eng de Gortari v Smithwick (No 2) [2001] 1 ILRM 354 Irl DPP v Armstrong [2000] Crim LR 379 Eng DPP v Carew [1981] ILRM 91 Irl DPP v Nock and Alsford [1978] AC 979 Eng DPP v Shannon [1975] AC 717 Eng DPP v Stonehouse [1978] AC 55 Eng DPP v Withers [1975] AC 842 Eng Ellis
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