Law Reform Commission of Ireland Report on Inchoate Offences Like Incitement and Conspiracy

The Law Reform Commission of Ireland has published a Report on Inchoate Offences:

"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. [from the press release]"

Among the report's recommendations:

• only agreements to commit a criminal offence should be criminal conspiracies. At present the crime of conspiracy includes agreements to commit civil as well as criminal wrongs
• abolition of the vague offences of conspiracy to corrupt public morals, conspiracy to effect a public mischief and conspiracy to outrage public decency
• 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
• 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; 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