The Commission’s work on substantive criminal law complements the work of the Criminal Law Codification Advisory Committee, established under Part 14 of the Criminal Justice Act 2006, whose work is aimed at the development of a criminal code.
3.1 Inchoate offences: conspiracy, attempt and incitement
In November 2010, the Commission published its Report on Inchoate Offences (LRC 99-2010) (3rd Programme of Law Reform, Project 19), which followed from its 2008 Consultation Paper on Inchoate Offences (LRC CP 48-2008). The Report contains the Commission’s final recommendations for reform in the law concerning incitement, conspiracy and attempt, together with a draft Criminal Law (Inchoate Offences) Bill.
Incitement, conspiracy and attempt are called “inchoate offences” because they criminalise conduct which may be described as working towards the commission of a particular offence. For example, the complete offence of murder requires the wrongful killing of a human being; whereas the offence of attempted murder caters for cases where the accused tries, but fails, to kill the victim. Similarly, the offences of conspiracy to murder and incitement to murder provide for cases where the accused has made an agreement to kill (conspiracy), or has sought to persuade someone else to kill (incitement). Prosecutions for incitements, conspiracies and attempts are relatively infrequent compared to prosecutions for the offences to which they relate, but charges such as incitement to murder (usually called solicitation), conspiracy to defraud and attempted robbery remain an important part of the criminal law.
Among the key recommendations in the Commission’s Report are:
- only agreements to commit a criminal offence should be criminal conspiracies. This would be a significant reform of current law. At present the crime of conspiracy includes agreements to commit civil as well as criminal wrongs. In 1881 Charles Stewart Parnell was tried for conspiring with others to encourage non-payment of rent (this arose from one of his “boycott” speeches). This charge would not be possible under the Commission’s proposals because payment of rent is a civil, not a criminal, matter.
- abolition of the vague offences of conspiracy to corrupt public morals, conspiracy to effect a public mischief and conspiracy to outrage public decency.
- retention of the offence of conspiracy to defraud, which is sufficiently clear in scope to remain a valuable part of the criminal law.
- the physical aspect of an attempt should be defined as an act which is close to the completion of the target criminal offence and the mental/fault aspect of attempt should be defined as intention that an act constituting a criminal offence be completed. This ensures that the defendant really was trying to commit the target offence.
- incitement should continue to be defined as “encouraging, commanding or requesting” the carrying out of a criminal act with the intention that the act is carried out.
For all three inchoate offences:
- impossibility should not be a defence. This means that the person who pickpockets an empty pocket (not knowing it is empty) may still be guilty of attempted theft even though in the circumstances they had no chance of gaining anything. Likewise, hiring a hit-man to kill a person who is already dead (but where this is not known to the person hiring the hit-man) is still an incitement to murder. This reflects the commonsense view that the blameworthiness of someone who tries to bring about a crime is the same regardless of their chances of success.
3.2 Sexual Offences and Capacity to Consent
In 2011, the Commission published a Consultation Paper on Sexual Offences and Capacity to Consent (LRC CP 63-2011) (3rd Programme of Law Reform, Project 12). The Consultation Paper focuses on the issue of consent in the specific context of persons with intellectual disability, and complements the general consolidation of sexual offences law currently being undertaken by the Department of Justice and Equality. It builds on the Commission’s previous work on the civil law of mental capacity, culminating in the 2006 Report on Vulnerable Adults and the Law (LRC 83-2006), which recommended new mental capacity and adult guardianship legislation. The 2011 Consultation Paper discusses the current law in this area, section 5 of the Criminal Justice (Sexual Offences) Act 1993, and notes that it (a) fails to protect people with intellectual disability from unwanted sexual contact generally (it is limited to sexual intercourse only) and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Health Research Board has indicated that there are just over 26,000 people registered on the National Intellectual Disability Database.
The Commission’s main provisional recommendations in the Consultation Paper are: (1) Section 5 of the Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced. (2) The same functional approach to capacity (that is, an assessment of capacity to consent based on understanding the decision and its consequences at the time the decision is being made) must be taken in respect of assessing capacity to marry in the civil law and capacity to consent to sexual relations in the criminal law; consistently with the functional test of capacity. (3) A person lacks capacity to consent to sexual relations if he or she is unable: (a) to understand the information relevant to engaging in the sexual act, and its consequences; (b) to retain that information; (c) to use or weigh up that information as part of the process of deciding to engage in the sexual act; or (d) to communicate his or her decision. (4) A defence of reasonable mistake should apply, as with sexual offences against children, but this defence should not be available to persons in positions of trust or authority. (5) There should be a strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability. (6) Any replacement of section 5 of the 1993 Act should cover all forms of sexual assault and sexual acts which exploit a person’s vulnerability, with a maximum sentence of imprisonment of 10 years on conviction. (7) Guidelines should be developed for those working in the criminal justice process to identify current obstacles and examine methods by which the participation in court proceedings of adults with intellectual disability could be enhanced. The Consultation Paper formed the background to the Commission’s Annual Conference 2011 (see the Other Publications section of the website).
3.3 Mandatory sentences
In 2011, the Commission published a Consultation Paper on Mandatory Sentences (LRC CP 66-2011). This arose from a request to the Commission by the Attorney General, in accordance with section 4(2)(c) of the Law Reform Commission Act 1975, “to examine and conduct research and, if appropriate, recommend reforms in the law of the State, in relation to the circumstances in which it may be appropriate or beneficial to provide in legislation for mandatory sentences for offences.” In the Consultation Paper, the Commission examined the general aims of criminal sanctions and the general principles of sentencing. The Commission identified four main aims of criminal sanctions: (a) punishment, (b) deterrence, (c) reform and rehabilitation and (d) reparation. The Commission also identified three key principles of sentencing: (a) the humanitarian principle (which incorporates respect for constitutional and international human rights), (b) the justice principle (including proportionality) and (c) the economic principle.
The Consultation Paper contains a detailed analysis of the development of the law in Ireland on mandatory sentences, including analysis of similar laws enacted in other jurisdictions such as the UK and US. The Commission notes that the only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence, and do not even have the power to suggest any specific minimum sentence, unlike the position, for example, in Northern Ireland where the sentencing judge can recommend a minimum life tariff. The Commission also examined other “presumptive” mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the “street value” is over €13,000, but also allows for a lesser sentence in exceptional circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is a repeat offender.
The main recommendations in the Consultation Paper are: (1) The Commission supports the recommendation (most recently reiterated in the 2011 Report of the Thornton Hall Review Group) that the proposed Judicial Council should develop and publish suitable guidance or guidelines on sentencing; and also provisionally recommends that these would have regard to decisions of the Court of Criminal Appeal, to the sentencing principles discussed in the Consultation Paper, and to information in databases such as the Court Service’s Irish Sentencing Information System (ISIS). (2) the Commission provisionally recommends that, while the use of the entirely mandatory sentence may be applied to the offence of murder, it should be amended to provide that, on the date of sentencing, the court should be empowered to indicate or recommend that a minimum specific term should be served by the defendant, having regard to the particular circumstances of the offence and of the offender. (3) the Commission provisionally recommends that the presumptive sentencing regime that applies in the case of certain drugs and firearms offences should not be extended to any other offences but should be reviewed because, while it has succeeded in one objective, namely, an increased severity of sentences for certain drugs and firearms offences, it has not been established that it has achieved another general aim of the criminal justice system, namely reduced levels of criminality through deterrence. The Commission notes that, in particular, the presumptive drugs offences regime has had the following results: a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders; the adaptation of the illegal drugs industry to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the drugs industry, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent bulge in the prison system comprising low-level drugs offenders. (4) The Commission provisionally recommends that the existing legislation concerning mandatory sentences (and, where relevant, presumptive mandatory sentences) as it applies in the case of second and subsequent offences should not be extended to any other offences; but the Commission also considers that, as a general proposition, a statutory framework that takes account in sentencing of repeat offending is consistent with the general aims of the criminal justice system and the principles of sentencing.
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