REPORT INCHOATE OFFENCES (LRC 99 - 2010) © COPYRIGHT Law Reform Commission FIRST PUBLISHED November 2010 ISSN 1393-3132 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 160 documents (Consultation Papers and Reports) 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 legislative changes, available at www.irishstatutebook.ie. 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 MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: 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: Mr Justice Donal O‟Donnell, Judge of the Supreme Court iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM, (NUI), Barrister-at-Law Legal Researchers: Dannie Hanna BCL (NUI), LLM (Cantab) Helen Kehoe BCL (Law with French Law) (NUI), LLM (Dub), Solicitor Donna Lyons LLB (Dub), LLM (NYU) Tara Murphy BCL (Law with French Law) (NUI), LLM (Essex), Barrister-at-Law Jane O„Grady BCL, LLB (NUI), LPC (College of Law) Darelle O„Keeffe LLB (UL), H Dip Soc Pol (NUI), EMA (EIUC) Helen Whately LLB, LLM (Dub) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researcher: Andrew Glynn BBLS (NUI), LLM (Dub) LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law Legal Researcher: Aoife Clarke BA (Int.), LLB, LLM (NUI) iv ADMINISTRATION STAFF Executive Officers: Deirdre Bell Simon Fallon 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 PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT David Prendergast LLB, LLM (London), Barrister-at-Law v CONTACT DETAILS Further information can be obtained from: 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 ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: Mr Tom Callan, Barrister-at-Law Dr Sarah Christie, Robert Gordon University Mr Mark Coen, Trinity College Dublin Ms Eileen Creedon, Office of the Director of Public Prosecutions Dr Bebhinn Donnelly, Swansea University Ms Valerie Fallon, Department of Justice and Law Reform Mr Carl Grainger, Criminal Law Codification Advisory Committee Ms Liz Howlin, Office of the Director of Public Prosecutions Ms Sharon McLaughlin, NUI Galway Ms Jane Mulcahy, Criminal Law Codification Advisory Committee Professor Paul O’Connor, School of Law, University College Dublin Ms Tracy O’Keefe, Criminal Law Codification Advisory Committee Mr Sean Ó Toghda, Criminal Law Codification Advisory Committee Full responsibility for this publication lies, however, with the Commission. vii TABLE OF CONTENTS Table of Legislation xv Table of Cases xvii INTRODUCTION 1 A Background to the Project 1 B The Commission‟s Overall Approach to Inchoate Offences 2 C Outline of Report 3 CHAPTER 1 INCHOATE LIABILITY 5 A Introduction 5 B General inchoate liability 5 (1) Terminology for describing inchoate offences 5 (2) General inchoate liability and specific inchoate offences 5 (3) Inchoate liability and secondary liability 7 C Inchoate offences and protected persons 8 (1) Report Recommendation on inchoate offences and protected persons 10 D The rationale of inchoate liability 10 (1) The rationale of criminalising inchoate crime 10 (2) The rationale of attempt 11 (3) The rationale of conspiracy 11 (4) The rationale of incitement 13 E Procedural issues relating to inchoate offences 13 (1) Punishment of inchoate offences 13 (2) Further procedural matters relating to inchoate offences 18 CHAPTER 2 ATTEMPT 23 A Introduction 23 (1) Reform of attempt 23 (2) Main Report recommendation on reform of attempt 24 B The act in a criminal attempt 24 (1) Consultation Paper analysis and recommendations on the act in a criminal attempt 25 (2) Discussion: the act in a criminal attempt 25 ix (3) Report recommendations on the act in a criminal attempt 44 C The target of a criminal attempt: what can be criminally attempted? 45 (1) Consultation Paper analysis and recommendations on the target of a criminal attempt 45 (2) Discussion: the target of a criminal attempt 45 (3) Report Recommendations on the target of a criminal attempt 51 D Attempt culpability 52 (1) Consultation Paper analysis and provisional recommendations on attempt culpability 52 (2) Discussion: Attempt culpability 54 (3) Report recommendations on attempt culpability 65 E Criminal Attempt and Impossibility 65 (1) Legal impossibility and factual impossibility 65 (2) The Sullivan case and impossible attempts 66 (3) Why impossibility should not preclude attempt liability 67 (4) Report recommendation on attempt and impossibility 69 F Abandoned attempts 69 (1) The Sullivan case and abandoned attempts 69 (2) The case for and against introducing a defence of abandonment 70 (3) Report recommendation on abandoned attempts 70 CHAPTER 3 CONSPIRACY 71 A Introduction 71 (1) Main Report recommendation on reform of conspiracy 73 B Agreement in conspiracy 73 (1) Consultation Paper analysis and provisional recommendations on agreement in conspiracy 73 (2) Discussion: agreement in conspiracy 77 (3) Report Recommendations on agreement in conspiracy 84 C Conspiracy culpability 85 (1) Consultation Paper analysis and provisional recommendations on conspiracy culpability 85 (2) Discussion: conspiracy culpability 87 x (3) Report recommendations on conspiracy culpability 92 D The activity to which a conspiracy relates 93 (1) Consultation Paper analysis and provisional recommendations on the activity to which a conspiracy relates 93 (2) Discussion: the activity to which a conspiracy relates 94 (3) Report recommendations on the activity to which a conspiracy relates 98 E The specific common law conspiracies 98 (1) Consultation Paper analysis and provisional recommendations on the specific common law conspiracies 99 (2) Discussion: evaluation of the specific common law conspiracies 99 (3) Report recommendation on the specific common law conspiracies 101 (4) Conspiracy to defraud 101 F Conspiracy and impossibility 107 (1) Consultation Paper analysis and provisional recommendations on conspiracy and impossibility 107 (2) Discussion: impossibility no bar to liability for conspiracy 108 (3) Report recommendation on conspiracy and impossibility 108 G Withdrawal from a conspiracy 108 (1) Consultation Paper analysis and provisional recommendation on withdrawal from a conspiracy 110 (2) Discussion: the case for and against a new defence of withdrawal from conspiracy 110 (3) Report recommendation on withdrawal from a conspiracy 111 CHAPTER 4 INCITEMENT 113 A Introduction 113 (1) Main Report recommendation on reform of incitement 113 B The act of incitement 114 (1) Consultation Paper analysis and provisional recommendations on the act of incitement 114 xi (2) Discussion: the act of incitement 114 (3) Report recommendations on the act of incitement 117 C Incitement culpability 117 (1) Consultation Paper analysis and provisional recommendations on incitement culpability 117 (2) Discussion: incitement culpability 118 (3) Report recommendations on incitement culpability 122 D The target of an incitement: the person and act incited 122 (1) Consultation Paper analysis and provisional recommendations on the target of an incitement 123 (2) Discussion: the target of an incitement 123 (3) Issues regarding the criminality of the incited act 125 (4) Report recommendations the target of an incitement 130 E A new inchoate offence of assisting or encouraging crime? 130 (1) Consultation Paper analysis and provisional recommendation 130 (2) Discussion: retaining incitement