1. society
2. crime

Inchoate Offences
1
Teresa Clyne
Lecturer in law and forensic psychology
Criminal law
Course notes
Inchoate Offences:
Inchoate Offense – underdeveloped or unripened.
Involving activity or steps directed toward the completion of a crime. It comes from the Latin
word “inchoare,” which means “to start work on.”
Therefore an inchoate offence is an offence which has not been completed. Its means
‘Just begun’ or ‘undeveloped’, in criminal law it is used to describe activities which precede
the commission of a full offence but are criminal offences in themselves. e.g. conspiracy to
commit murder, theft etc.
Although preparatory to commission of other offenses, they are separate and distinct
crimes.
There are three types of inchoate offences – attempt/conspiracy/incitement
In order to bring a case against the accused for attempt, the prosecution must prove:
1. An intentional act (Mens Rea)
2. Which is more than preparatory! (Actus Reus)
Mens rea for the specific substantive offence must also be present – The People (DPP) –vDouglas and Hayes. The defendants were charged of shooting with intent to commit
murder. They appealed on the basis that the trial judge had given the jury the wrong
instructions in regard the mens rea of the offence.
Teresa Clyne – 0858120101 – [email protected]
Inchoate Offences
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HELD: This attempt requires an actual intention to commit the crime of murder, i.e. killing,
not merely serious injury.
ATTEMPT:
Attempt – an intent to commit a crime coupled with an act that goes beyond mere
preparation toward the commission of that offense.
Attempt: try, effort, plan, endeavour
People (AG) –v- Thornton – an attempt is an act done by the accused with a specific intent
to commit a crime, which must go beyond mere preparatory acts.
The accused was charged with unlawfully attempting to procure a poison, knowing it was to
be used to produce the miscarriage of a girl. HELD: Lack of Actus Reus.
Accused arrested loitering three feet from the post office door with an imitation firearm;
HELD: no attempt. R v Jones (1990)
R v Campbell (1991)- The defendant was arrested outside a Post Office, carrying a gun, a
threatening note and in disguise. His original conviction of attempted robbery was quashed
by the Court of Appeal. His acts were less then preparatory; he would only satisfy this once
he entered the Post Office.
The Court of Criminal Appeal defined attempt as “an act done by the accused with a
specific intent to commit a particular crime … it must go beyond mere preparation, and
must be a direct movement towards the commission after the preparations have been
made.” Thus it is necessary for the Prosecution to show an act of sufficient proximity to
the principal act – not merely in the early, preparatory stages. The ratio from People
(AG) -v- Sullivan (1964) is that an act is proximate enough to constitute attempt.
The offence of attempt is not based on legislation in Ireland unlike its counterpart in the UK
which is the Criminal Attempts Act. Attempt in Irish law is at common law. However, there
are many legislative offences of specific attempt such as attempt to commit murder, S3 of
the Criminal Justice Act 1990 or attempt to drive a vehicle under the influence of alcohol
under the Road Traffic Act 1961.
For instance, if a defendant was intending to murder a person, and in the commission of this
intent they merely injured them, the defendant can be found guilty of the offence of attempt
even though they never committed the murder, they committed an act connected with the
attempt to murder, therefore no charges of murder will be brought but separate and
distinguishable offence of attempt to commit murder is committed.
Accused got into a car and pointed a gun at the driver’s head; safety catch on, no finger on
trigger; HELD: attempt. R v. Campbell (1991).
Teresa Clyne – 0858120101 – [email protected]
Inchoate Offences
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RECAP
•
The defendant must have a specific intent to commit a particular crime
•
The defendant must have carried out SOME part of the act, the desire is not enough.
•
However, the full offence does not have to be committed. i.e. if a defendant puts
poison in a glass of the intended victim just before the victim drinks it but they then
change their mind, the requisite requirements of the offence have been committed.
CONSPIRACY:
Conspiracy – agreement by two or more people to accomplish a criminal act or to use
unlawful means to accomplish a noncriminal objective. The house of Lords in R v Parnell
defines conspiracy as an agreement by “a combination of persons to commit a wrongful act
with a view to injure another… even though the act, if done by one, would amount to no
more than a civil wrong”. The rationale is that a civil act done by many is more formidable –
and harder to recover for – than an act done by one person, therefore the State steps in and
elevates the act to a c rime. HELD: Actus Reus: the mere agreement to carry out an
unlawful act. R v. Parnell (1881)
Conspiracy: plot, scheme, plan, agreement.
A criminal offence under the Criminal Justice Act 2006. This is an addition to the common
law offence and does not replace it.
It consists of the following:
•
agreement by two or more people to accomplish a criminal act or to use unlawful
means to accomplish a noncriminal objective.
•
An agreement to carry out a wrongful act – agreement being the key element of the
actus reus - People v Keane (CCA 1975)
A) mens rea
The inciter must intend that as a result of his persuasion, the incitee will bring about the
crime.
Must also be, in mens rea, the intention to agree to commit the unlawful act and that the
person would take some steps in its furtherance (R –v- Anderson) The prosecution must
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Inchoate Offences
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prove that a defendant intended to further the unlawful object of the conspiracy, and such
intent must exist in the minds of at least two of the parties to the alleged conspiracy.
B) actus reus
The actus reus of incitement is the act of persuading, encouraging or threatening another to
commit a crime. NOTE: If the person incited agrees to commit the crime, both are liable for
conspiracy. If the incitee actually commits the crime, the inciter will be liable as an
accomplice to the complete offence. The actus reus of the crime of conspiracy is the
unlawful agreement. Where an overt act is required, such act doesn’t need to be a
substantial movement toward the target offense.
A single act such as a telephone conversation arranging a meeting has been held to
be sufficient proof of an overt act.
AGREEMENT:
An agreement to carry out a wrongful act – agreement being the key element of the actus
reus - People v Keane (CCA 1975)
The accused was convicted in the Special Criminal Court of conspiracy to cause explosions
with explosive substances. HELD: He was aware of and also helped in building the
explosives therefore even though he had not actually met his co-conspirators in person he
was nonetheless found guilty.
Note:
•
A conspiracy has occurred as soon as an agreement has taken place.
•
The criminal offence itself does not have to be committed.
•
The participants in a conspiracy need not even know or see one another as long as
they otherwise participate in common deeds.
Research to undertake: two people cannot conspire to commit a
crime such as adultery, incest, or bigamy because these offenses
require only two participants. True or False? Consider that the
definition, two or more people..!
Teresa Clyne – 0858120101 – [email protected]
Inchoate Offences
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Soliciting to commit murder
In soliciting to commit murder, it is necessary only that there is an intended victim, not that
the solicited person knew the details about the person, nor that every person in a group of
solicited people knew what was going on. People (DPP) v. Gillane (1998)
Conspiracy to Corrupt Public Morals
Hamilton P. in AG (SPUC) v. Open Door Counselling (1988) held that the offence exists
here, finding it to have occurred where the Def provided non-directive abortion counselling.
He held that it could occur even when the agreement between two or more persons assists
in the commission of a lawful act, where the assistance attacks the very fabric of society.
Excluded parties
A victim cannot conspire against themselves, i.e. A girl under 17 cannot aid and abet
unlawful sexual intercourse because the statute was designed to protect her as a victim, not
prosecute her as a co-defendant. She could thus not conspire to commit the offence
Husband and wife cannot conspire together at common law. The State (DPP) v Walsh 47
Henchy J explained the common law defence of marital coercion: “In an effort to
compensate the wife for her inferior status, and in particular to make up for her inability to
plead benefit of clergy, as her husband could, the law concocted the fiction of a prima facie
presumption that the act done by her in the presence of her husband was done under
coercion.”
Impossibility as a defence to conspiracy
There is no Irish case on impossibility, the following UK case, DPP –v- Nock (1978) D and E
believed they were dealing with cocaine, when in fact it was harmless dentistry material.
Their convictions for conspiracy to produce a controlled drug were quashed because it was
physically impossible to extract cocaine from the powder.
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Relevant knowledge of the facts and circumstances.
•
a person is not guilty of conspiracy if, when he commits a crime, he is not aware of
particular facts or circumstances relevant to that crime.
RECAP
•
All parties must agree to commit the same offence.
•
A conspiracy continues to exist until it is performed, abandoned or frustrated.
•
Each member must agree to participate in some way
•
The individuals involved in a conspiracy do not have to meet each other.
•
The alleged conspirator must have communicated with at least one other member.
•
The conspirators do not have to intend to see the conspiracy through until the end.
Incitement
S.7(1) of the Criminal Law Act 1997
Incite: provoke, spur on, motivate, persuade, encourage.
•
Where a persons incites another to commit a crime, they may be liable for conviction
as the principle.
•
The prosecution must prove that the defendant incited the accused to perpetrate the
offence.
The offence is complete as soon as the agreement has been reached. Therefore, even if the
offence has never been carried out or the offenders change their minds, liability starts once
the offence has been agreed.
The Actus Reus of Incitement
The actus reus of incitement is the act of inciting, a communication to someone else that
seeks to persuade or pressure them to commit a crime.
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Inchoate Offences
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R v Most - The Defendant published an article encouraging people of the world to follow the
example of Russian revolutionaries and murder their Heads of State. It was held to be an
incitement to murder.
Mens Rea
Incitement requires two elements
1.
Knowledge of the circumstances which would make the act of the person incited an
offence;
and
2.
An intention that the person incited should commit the act constituting the offence.
Prohibition of Incitement to Hatred Act 1989
“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”.
The Act prohibits “any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence” by means of threatening, abusive or
insulting words or images. s. 2 primarily prohibits publication and distribution of the
incitement; the private sphere is protected. s. 2 renders the offence a strict liability offence –
no intention necessary – unless the inciter (a) was unaware of the content of the material, or
(b) was unaware that the material
People (DPP) –v- O’Grady. A racist bus driver refused entry to the bus to a Gambian man,
making racial and derogatory remarks to him. HELD: The driver’s conviction was overturned
as there were only two witnesses who overheard the conversation and they did not felt
incited to hate.
Communication of the incitement
R v Banks - Must be some form of actual communication a person whom it is intended to
incite. Where communication sent with a view to incite but not received the sender can only
be guilty of an attempt to incite. Letter was sent advising niece to kill infant with poison, but
was not received.
Renouncing the incitement.
It is not possible to renounce incitement as once the incitement is spoken or communicated
the offence has already taken place.
Teresa Clyne – 0858120101 – [email protected]
Inchoate Offences
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Intention to incite harm and another crime occurs
The defendant must intend the offence which was incited to be committed and intend any
consequences inherent in the actus reus of the offence. (Thus, to be liable for inciting
murder, the defendant must intend the incitee to kill. If he merely intends the incitee to do
serious harm but the incitee kills, the defendant will only be liable for inciting serious harm.
RECAP:

Defendant must also intend or believe that the person incited will act with the
required mens rea for the offence incited.

Incitement must be communicated

It is not possible to renounce incitement

It is not necessary to establish that the person who was incited had the mens rea for
the offence incited

The defendant will only be liable for the crime which they intended to incite.
Teresa Clyne – 0858120101 – [email protected]