Tuesday, 26th February 2008: The Law Reform Commission’s Consultation Paper on
Inchoate Offences will be launched this evening by the Hon Mr Justice Garrett Sheehan,
judge of the High Court.
The Consultation Paper forms part of the Commission’s Third Programme of Law Reform
2008-2014. 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, established under the Criminal Justice Act
2006.
Attempt, conspiracy and incitement
Attempt, conspiracy and incitement are called “inchoate offences” because they criminalise
conduct that is working towards a particular offence and they attach or relate to that offence,
for example, murder. For murder it is necessary for someone to have been wrongfully killed;
but if a person tries - and fails - to kill, they may be guilty of attempted murder. If two or more
have plotted a killing, there may be a conspiracy to murder. And if a killing has been requested, there may be an incitement to murder.
The criminal law has these offences because those who try their best to cause crime are no
less blameworthy if they fail. For example, a person who tries to shoot someone dead should
not avoid punishment merely because they are a “bad shot”. Inchoate offences also help
prevent crime because they allow prosecution of those caught working towards crime. In
practice, prosecutions for attempts, conspiracies and incitements are infrequent compared to
prosecutions for the offences to which they relate. Nonetheless, inchoate offences are an
important part of the criminal law.
Outline of the Consultation Paper’s provisional recommendations
The Commission’s Consultation Paper analyses the current law on attempt, conspiracy and
incitement and identifies uncertainty in the scope of these offences. Accordingly, the
Commission provisionally recommends that the rules on inchoate offences be codified as part
of the work being overseen by the Criminal Law Codification Advisory Committee.
As to conspiracy:
- the Commission provisionally recommends that only agreements which involve the commission of crimes should be criminal conspiracies. This would be a significant reform of current law. At present conspiracy is unique as a criminal offence because it may transform mere civil wrongs into criminal conduct once two or more persons agree to it. In 1881 Charles Stewart Parnell was tried for conspiring with others to encourage non-payment of rent. This charge would not be available under the Commission’s proposals because payment of rent is a civil matter, not a criminal one. The Commission’s proposals would rule out such vague and open-ended offences.
- the Commission also provisionally recommends the abolition of the nebulous offence of conspiracy to corrupt public morals. the Commission has examined the offence of conspiracy to defraud. The Commission has invited submissions on whether this offence should be abolished.
As to attempt:
- the Commission provisionally recommends that the physical aspect of an attempt should be defined as an act which is close to the completion of the target criminal offence. This ensures that the defendant can fairly be said to have been trying to commit the target offence. the Commission also provisionally recommends that the mental aspect of attempt should be defined as intention that an act constituting a criminal offence be completed. This also ensures that the defendant really was trying to commit the target offence.
As to incitement:
- the Commission provisionally recommends: codification of the current position, namely, that incitement is committed by encouraging, commanding or requesting the carrying out of a criminal act with the intention that the act is carried out. This proposal aims to cover those people who are trying to get another person to commit a crime.
For all three inchoate offences:
- the Commission provisionally recommends that 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 proposal 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.
- the Commission also invites submissions on whether there should be a defence for abandoning, or withdrawal from, the pursuit of a crime.