Embargo: MIDNIGHT MONDAY 29TH NOVEMBER 2010
LAW REFORM COMMISSION PUBLISHES REPORT ON INCOATE CRIMINAL OFFENCES
REPORT RECOMMENDS ENACTING CLEAR STATUTORY PROVISIONS FOR the LAW OF INCITEMENT, CONSPIRACY AND ATTEMPT
RECOMMENDS LIMITING CONSPIRACY TO CONSPIRACIES TO COMMIT CRIMES
RECOMMENDS THAT FACTUAL IMPOSSIBILITY NOT A DEFENCE
Tuesday 30th November 2010: The Law Reform Commission today publishes its Report on Inchoate Offences, which deals with the offences of incitement, conspiracy and attempt. The Report forms part of the Commission’s Third Programme of Law Reform 2008-2014, it makes 42 reform recommendations and also includes a draft Criminal Law (Inchoate Offences) Bill. The Commission’s work on inchoate offences (and in other areas of criminal law) is intended to assist in the eventual codification of criminal law, which is being overseen by the Criminal Law Codification Advisory Committee.
Incitement, conspiracy and attempt
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).
The thinking behind these offences is that people who take significant steps towards the commission of the full offence are often no less dangerous – and just as blameworthy – as those who succeed in carrying out the full offence. For example, a person who attempts to murder may have failed because the gun didn’t fire. The inchoate offences also reinforce a key function of the criminal law: the protection of society. In practice, 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.
The main recommendations
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.