INCHOATE OFFENCES IN IRELAND
[2014] Inchoate Offences 1 INCHOATE OFFENCES IN IRELAND I. INTRODUCTION The aim of this paper is to explore the criminal aspect of inchoate offences, making references to the approaches taken by other nations but primarily focusing on Irish law. In David Prendergast’s article on Codifying Inchoate Offences1 he explains that inchoate offences can be applied to many other criminal proceedings on a statutory footing, not just attempt, conspiracy and incitement. Instances such as legislation that criminalises carrying a knife in a public place, aims to reduce the amount of knife crimes committed. Therefore an inchoate offence is one where the desired criminal outcome has not been achieved but aims to punish the accused for such thoughts. Other instances of such “Inchoate” offences that are penalised on a statutory footing are burglary and possession of offensive weapons under s.9 of the Firearms and Offensive Weapons Act (1990). McIntyre2 describes inchoate offences, as offences where the harmful objective intended has not yet been realised. An offence which is inchoate in nature will always contain the necessary mens rea of the desired crime but most importantly does not fulfill the requirements of the actus reus for the purposes of conviction. A criminal that has failed in their proceedings, in the commission or preparation of a crime does not avoid culpability. There are three areas of the law for the purposes of discussing inchoate offences that we should focus on. Attempt, conspiracy and incitement, which all share a common interest of incompleteness. II. ATTEMPT Every criminal offence contains two key elements, an actus reus and a mens rea . It is the onus of the prosecution to prove that both these elements exist “beyond reasonable doubt”3 before a person may be found guilty of any such offence. The actus reus of attempt however differs, as the very nature of the offence is incomplete. As affirmed in R v Eagleton4 , it is described as the 1 David Prendergast ‘Codifying Inchoate Offences’ (2008) 26 I.L.T. 134137 nd T.J. McIntyre, Sinead McMullen and Sean O Toghda, Criminal Law (2 edn, Roundhall 2005). 3 Woolmington v Director of Public Prosecutions [1935] AC 462 “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention” 4 R v Eagleton [1855] 169 ER 826 2 [2014] Inchoate Offences 2 most proximate action towards the completion of the intended offence. This means however that an action failing to be proximate enough will fail to be sufficient evidence as in People v Rizzo5. The leading Irish case of The People (AG) v England6 affirmed this view by concluding that the defendant was merely acting in preparation of the intended act. In R v Jones7 the accused on appeal, convicted of attempted murder, argued that the safety catch was still on the shotgun and that his actions were too remote to be prosecuted for attempted murder. His conviction was upheld on the grounds that pointing the shotgun at his victim's head was beyond preparatory. Summary offences as opposed to indictable offences cannot be attempted due to their minor nature. The mens rea of attempt should be treated the same as any other indictable offence although it may only be proved that the accused be reckless8 in his attempt to secure a conviction. In Sean. E. Quinns9 book he describes accurately the mens rea of attempt as in fact the mens rea of the particular crime intended. This means for the offence of attempted murder the prosecution must prove that the accused has the requisite mens rea of malice aforethought10. An attempt which has been proven as impossible can be used as a general defence as decided by the House of Lords in Haughton v Smith11. However where the impossibility is related to the method used it does not afford oneself the immunity from criminal prosecution. It is not enough to prove that an action could never possibly have led to the completed offence intended as held in the English case of R v White12 where the necessary mental element was present. In this case the defendant had tried to poison his mother but used the wrong drugs. It was held that the intention was valid and although he had unknowingly used an inadequate amount of poison which would never have been enough to kill, he still in fact had the requisite intent for the unlawful act or murder. 5 People v Rizzo 158 NE 888 (1927) The People (AG) v England [1947] 1 Frewen 81 7 R v Jones [1832] 110 ER 485 8 R v Khan [1990] 1 WLR 813 “In rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely an intention to have intercourse plus a knowledge of or recklessness as to the woman's absence of consent. No question of attempting to achieve a reckless state of mind arises; the attempt relates to the physical activity; the mental state of the defendant is the same. A man does not recklessly have sexual intercourse, nor does he recklessly attempt it. Recklessness in rape and attempted rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse. If this is the true analysis, as we believe it is, the attempt does not require any different intention on the part of the accused from that for the full offence of rape.” 9 nd T.J. McIntyre, Sinead McMullen and Sean O Toghda, Criminal Law (2 edn, Roundhall 2005). 10 Criminal Justice Act 1964, s4(1) 11 Haughton v Smith [1975] AC 476 12 R v White [1924] 2 KB 124 6 [2014] Inchoate Offences 3 Similarly an attempt which has been abandoned does not exempt the accused from liability and is not a valid defence. The House of Lords again in Haughton v Smith,13 vocalised the opinion that where a person has a change of mind prior to the proximate act there is no liability, and where they change their mind after the proximate act has been committed it is simply irrelevant as the requisite mens rea and actus reus of attempt have been fulfilled. The same approach as adopted by England has been applied here and gains its authority from the seminal case of The 14 People (Attorney General) v Sullivan where Mr Justice Walsh states: “Even if there were evidence that she had in fact changed her mind it would not amount to a defence because the offence charged is that of having the intent at the time the act constituting the attempt is carried out. That cannot be answered by evidence of a subsequent abandonment of the intent.” However in the United States a defence of voluntary desistance may be available to the accused providing his abandonment of the crime can be proven as one of the conscious mind, and not influenced by any external factors15. The fact that an act must be proximate enough to benefit a conviction of attempt liability means that often times law enforcement must delay in their apprehension of criminals so that they may be certain of a conviction. This approach can be described as outdated and whilst its main aim is to secure a conviction for the prosecution, fundamentally it may put the lives of innocent people at risk for such. The Law Reform Commission recommends16 that in relation to the offence of attempt it be placed on a statutory footing and with regards to the most proximate action, it be placed in statute. Interestingly they also recommend that summary offences be open to be tried as attempt along with offences of strict liability. However they have indicated that the introduction to a defense of abandonment not to be endorsed and also where a criminal has failed in their objectives plainly because of impossibility that it may not be a defense. III. CONSPIRACY A conspiracy to commit a crime is a summary offence even in the case of murder. It is taken from the judgment in The People (AG) v Keane17 , that is, what exactly amounts to conspiracy. 13 Haughton v Smith [1975] AC 476 The People (Attorney General) v Sullivan [1964] IR 169 15 Weaver v State 42 SE 745 (1902) 16 Law Reform Commission, Inchoate Offences (LRC 99 2010) (Report) 17 The People (Attorney General) v Keane [1975] 1 Frewen 392 14 [2014] Inchoate Offences 4 There must be an agreement. There must be two or more parties involved. The agreement must be to commit an unlawful act or a lawful one by unlawful means. The main difference between this offence and one of attempt is that one need only agree with two or more people to commit an unlawful act or a lawful act by unlawful means for conviction. The agreement between the parties need not go any further than their mutual acquiescence, for a conviction of said crime. However there must be evidence of such an agreement either by means of writing in a document or inferences drawn by conduct that would lead a reasonable person to believe there had been a valid acceptance between all parties. In R v Walker18 the accused's expressed desire in discussion with other workers to steal a payroll was found to fall short of an agreement. There must be two or more parties. It is important to discern that one person alone cannot conspire on their own to bring about a result. Married persons are also excluded from being convicted of such an offence, although where a married couple enter into an agreement with another person or another married couple for that matter of fact they will be treated as conspiring. In Mawji v R19 it was held that two spouses could not be convicted of conspiracy within a marriage. The idea being to protect the sanctimony of marriage. Interestingly though in the case of DPP v Murray20 where the Murrays were tried for the murder of an off duty Garda on the basis of common design, gives rise to the possibility that the courts may depart from their previous decisions. Although it is more likely that the Irish courts would follow the authority of England. If two or more persons are indicted, where one party is acquitted, all parties involved in the allegation of conspiracy must also be acquitted. Similarly where one party is convicted of conspiracy, all other involved parties will also be convicted. A defense of impossibility is an option for any persons accused of conspiracy as can be viewed in the case of DPP v Nock,21 but only where it can be proven that the agreement intended is factually not possible. Interestingly if in the Nock case the defendants had all the correct ingredients for the production of cocaine and they had failed simply because lack of knowledge, then they would be found guilty of conspiracy. Abandonment is not a valid defense to conspiracy simply because once the unlawful agreement has been made all the elements for the conviction of said crime are present, and so abandoning 18 R v Walker [1962] Crim LR 458 Mawji v R [1957] AC 126 20 DPP v Murray [1977] IR 360 21 DPP v Nock [1978] AC 979 19 [2014] Inchoate Offences 5 the enterprise has no effect. However in relation to conspiring to cause explosions, such an act is treated differently and under section 3 of the Explosive Substances Act, 1883, it is an indictable offence. The commision also recommends that conspiracy be placed on a statutory footing and that the “agreement” not be defined as a technical word but rather given its plain and ordinary meaning within the act. It introduces the idea for the abolishment of spousal protection that is currently afforded under the current common law system. Acts of strict liability and also acts of a summary as well as indictable nature are recommended to be tried. Interestingly they also introduce the idea of limiting the agreements under conspiracy as criminal only. In DPP v 22 Kamara a group of students were found guilty of conspiracy after agreeing to trespass the London premises of the High Commissioner of Sierra Leone. Similarly in the case of Parnell23 where, the defendant was found guilty of conspiring to persuade tenant farmers not to pay their rents and inciting them to boycott those who were cooperating with their landlords, which is a civil wrong that should have no jurisdiction in criminal law proceedings. IV. INCITEMENT Incitement can be described in Blacks24 dictionary as to “instigate, persuade,or move another to commit a crime.” Where a person incites another to commit a crime, be it an indictable or summary offence, he himself is liable to be convicted as the principal offender. As set out in s.7(1) of the Criminal Law Act 1997 for indictable offences and s.22 of the Petty Sessions (Ireland) Act 1851 for minor offences. As we know for the offence of attempt there must be a proximate act towards the commision of an offence, but the very nature of incitement is to punish the offender who solicits another into committing a desired crime for their own gratification. Therefore the offence of incitement has been completed where it can be proven by the prosecution beyond all reasonable doubt that the defendant has incited another to commit a crime whether that crime has been or is yet to be committed. In R v Whitehouse25 the defendant was charged with inciting his daughter to have incest with him, whom at the time was but fifteen years of age. In order for the offence of incest to be completed his daughter would have had to be over the age of sixteen and knowingly allowed her father to commit incest. Since she was only fifteen the court held that no crime had been 22 DPP v Kamara [1974] AC 104 R v Parnell [1881] 14 Cox CC 508 24 Bryan A Garner , Black’s Law Dictionary (9th edn, Thomson West 2009). 25 R v Whitehouse [1977] QB 868 23 [2014] Inchoate Offences 6 committed and that she was rather the victim not the offender, therefore the defendant could not be convicted of incitement to a crime which did not exist It may be difficult to rationalise the stark difference between a mere desire and an act that goes above and beyond such a desire, but the leading case of AG v Capaldi26 sets out exactly what can been deduced as incitement. The defendants desire to have the doctor perform an abortion went beyond that of wishful belief when he stated “there is ample money to meet your fees.” The introduction of monetary incentive was seen as sufficient to deduce incitement. Similarly, threatening a person or holding a person under duress in an attempt to make them perform a particular criminal act and may also be used to prove intent. A person may also be convicted of inciting more than one party. In R v Most27, the defendant was found guilty of inciting revolutionaries around the world to assassinate their Heads of State in a worldwide article. Although where a person solicits another to commit a specific crime, and they commit another crime, said person will not be held culpable for the sporadic crime spree of the other person, but will most importantly be found guilty of incitement to their specific desired crime. It is an offence to publish, distribute or broadcast threatening abusive or insulting material that is likely or intended to incite hatred. Furthermore it has been given a statutory footing under the Prohibition of Incitement to Hatred Act 1989. Hatred defined in the act, “means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation” V. CONCLUSION The commision recommends to codify the law of inchoate offences. In David Prendergast’s article the author introduces the idea of double inchoate offences, such as conspiracy to conspire and attempt to attempt. He raises the issue in R v Banks28 where the accused attempted to incite another to murder her child. The commission recognises that double inchoate liability exists and that as a matter of sensible practice that most prosecutors will exercise appropriate discretion 26 The People (Attorney General) v Capaldi [1949] 1 Frewen 95 R v Most [1881] 7 QBD 244 28 R v Banks [1873] 12 Cox CC 393 “A wrote and put in the post office at H at four o'clock one afternoon, a letter addressed to B at W containing a suggestion for the murder of a child to which B was expecting to give birth. The child was born at 1 a.m. on the following morning. The letter posted at H would have been in the ordinary case and was in fact, delivered at the house where B lodged at eight o'clock on the morning of the day after it was posted at H. The letter never came to B's hands, being intercepted by the landlady of the house: Held the jury might find that the act of A continued until the letter was delivered at the house of B, and if the letter had reached B, A might properly have been convicted of soliciting and inciting B to murder her child, and, the letter having been intercepted, A could be convicted of an attempt to solicit and incite B to murder her child .” 27 [2014] Inchoate Offences 7 where double inchoate liability does not make practical sense. Furthermore, “A sensible rule of thumb could be that charges involving more than two inchoate offences should be avoided. Double inchoate liability may be acceptable at times, but triple inchoate liability and beyond is not.”29 It is also recomm ended that attempt to attempt is an illogical charge and should be avoided. For all three offences the law reform recommends “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 hitman to kill a person who is already dead (but where this is not known to the person hiring the hitman) is still an incitement to murder.”30 In Ireland there is currently very little case law in the area of inchoate offences relating to attempt, conspiracy and incitement. It is for this reason we must look to our neighbouring country for guidance by way of persuasive authority when judging criminal endeavours. The recommendation by the commision to abolish the common law offences and place all three in statute would alleviate uncertainty that is prevalent within the law at present and allow for a more formal and technical approach. 29 Law Reform Commission, Inchoate Offences (LRC 99 2010) ibid 30 [2014] Inchoate Offences Bibliography Cases 1. DPP v Kamara [1974] AC 104 2. DPP v Murray [1977] IR 360 3. DPP v Nock [1978] AC 979 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. Ellis v O'Dea and Governor of Portlaoise Prison [1991] ILRM 365 Haughton v Smith [1975] AC 476 Hyam v DPP [1975] AC 55 Mawji v R [1957] AC 126 People v Rizzo 158 NE 888 (1927) R v Banks [1873] 12 Cox CC 393 R v Eagleton [1855] 169 ER 826 R v Gullefer [1990] 3 All ER 882. R v Jones [1832] 110 ER 485 R v Khan [1990] 1 WLR 813 R v Khan [1990] 1 WLR 813 R v Mohan [1976] QB 1 R v Most [1881] 7 QBD 244 R v Parnell [1881] 14 Cox CC 508 R v Robinson [1915] 2 KB 342 R v Walker [1962] Crim LR 458 R v White [1910] 2 KB 124 R v White [1924] 2 KB 124 R v Whitehouse [1977] QB 868 The People (Attorney General) v England [1947] 1 Frewen 81 The People (Attorney General) v Capaldi [1949] 1 Frewen 95 The People (Attorney General) v Keane [1975] 1 Frewen 392 The People (Attorney General) v Sullivan [1964] IR 169 Weaver v State 42 SE 745 (1902) 8 [2014] Inchoate Offences 9 Books th 1. Allen M and Cooper S, Elliott and Wood’s Cases and Materials on Criminal Law (10 edn, Sweet and Maxwell 2010) 2. Bryan A Garner , Black’s Law Dictionary (9th edn, Thomson West 2009) 3. Charleton P, McDermott P.A & Bolger M, Criminal Law (Butterworths 1999) nd 4. Hanly, C, An Introduction to Irish Criminal Law , (2 edn, Gill and Macmillan 2006) nd 5. McIntyre T.J, McMullen S and O Toghda S, Criminal Law (2 edn, Roundhall 2005) rd 6. Quinn S, Criminal Law in Ireland (3 edn, Irish Law Publishing 1998) Articles David Prendergast ‘Codifying Inchoate Offences’ (2008) 26 I.L.T. 134137 Law Reform Commission, Inchoate Offences (LRC 99 2010) (Report) Law Reform Commission, Inchoate Offences (LRC CP 48 – 2008) (Consultation Paper) Legislation Firearms and Offensive Weapons Act (1990) Criminal Justice Act 1964
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