The following are so-called incomplete offences. The term is misleading as the “incomplete” offences are themselves offences. The three types of offence are attempting, conspiring, or inciting to undertake the principal offence. For example, attempted murder, incitement to theft, and conspiracy to cause malicious damage are each offences of themselves.
Intention by itself is not enough. There must be some act constituting the attempt. Not all acts aimed at committing the substantive event are themselves an offence. A remote act would not be sufficient. Act immediately connected with the offence would be sufficient.
This position reflects the principle that criminal law does not penalise intention of itself. A distinction is drawn between preparatory acts and acts that go a substantial distance towards the commission of the principal crime itself. There is a however a grey line between the two.
The Irish courts take the view that the offence must be sufficiently close with the complete offence or so-called proximate to it. Generally, the accused must have come close or even very close to committing the crime.
Intent and Attempt
An intention to commit the complete offence must be shown. This is the case even if the complete offence could be constituted by recklessness. As with other offences, the intention may be inferred from the circumstances. If there is no reasonable explanation for any other inference, then the accused is found to have the requisite intent and may be convicted of an attempt to commit the offence concerned.
Intention is required in relation to the completion of the offence. Recklessness may be sufficient as to the circumstances. It is sometimes said that recklessness as to the circumstances is sufficient.
If a person comes sufficiently close or proximate to committing an offence but then abandons the attempt, this would not be of itself be a defence to the attempt.
Attempting the Impossible
An interesting question arises as to whether a person may be convicted of an attempt to commit an offence, where for a technical reason, the offence is not possible; e.g. murdering a deceased person. Generally, a person may not be convicted of such an offence.
Where, however, the impossibility relates to the method employed, which may be deficient to achieve the relevant result, he may be convicted. Therefore, in a case where a person attempted to poison with a dose that was not, in fact, sufficient, he was convicted of attempted murder.
Incitement to commit an indictable or summary offence is itself an offence. Incitement usually involves encouragement and persuasion. It may involve pressure, threats, or duress.
The Prohibition of Incitement to Hatred Act makes it an offence to utter threatening, abusive or insulting words or publish, display, broadcast such material, where it is intended or likely to incite hatred.
The relevant guilty act for the purpose of incitement is the act of influence and encouragement of another to commit the requisite offence. Incitement may involve duress, threat, a reward, other pressure or encouragement.
The mere desire that an offence be committed is not sufficient. Some steps must be taken towards engaging and procuring another to do it. An act of solicitation or encouragement is required. There must be actual encouragement or incentivisation.
As with the other incomplete offences, there may be a distinction between incitement to commit an offence generally and a specific offence. Where the incitement is of a general nature, the fact that it is impossible is irrelevant. If however, there is a specific incitement and objective which is impossible, this may not be sufficient for incitement.
Communication and Intent
The incitement or incentive must be actually communicated to the persons intended to be incited or encouraged. A person may be convicted of an attempted incitement.
There is no requirement that the incitement leads to the offence. The incitement of itself is the offence and the offence is committed at that point.
If the person offering the incitement and the incited person agrees, they may become conspirators.
It is essential that the person intended a person whom he incited, to commit the offence. If the person incited is not able to commit the offence, and the defendant is so aware, there is no incitement. A person who incites may himself be convicted of the principal offence on the basis that the person incited acted on his behalf in implementing the offence.
A conspiracy is an agreement between a number of persons to commit an unlawful act. There are a number of types of conspiracies.
- where the objective is itself unlawful.
- where the objective is lawful but the means used are unlawful.
- where the objective is to commit a civil wrong but not a crime.
In the latter case, the conspiracy although not criminal if done by one person, may become criminal if done by more than one.
Conspiracy requires nothing more than the agreement. It does not require any attempt or step to be taken.
Types of Conspiracy
There are a number of types of conspiracy.
- conspiracy to commit a criminal offence.
- conspiracy to defraud.
- conspiracy to pervert the course of justice.
- conspiracy to corrupt public morals.
- conspiracy to commit public mischief.
- conspiracy to commit a civil wrong.
- conspiracy to outrage public decency.
A conspiracy involves an agreement between two or more parties. It does not require a formal contract or agreement. A common aim or intention is sufficient. A discussion or preparatory steps would not be sufficient. As with other evidence for criminal wrongdoing, the fact of the conspiracy would be a matter of inference for the jury from the circumstances.
The conspiracy is committed once the agreement has been made, irrespective of whether it is ever implemented. Similarly, if an attempt is made to implement it, which fails, the conspiracy may be charged independently. The fact that the conspiracy fails does not absolve the participants from criminal liability.
The participant in the conspiracy must be proved to have the intent to commit the act, being the principal offence. He must have sufficient knowledge of the purpose and intention. He need not necessarily know the precise details. He cannot shut his eyes if he knows what is broadly involved, and claim he did not know.
Conspirators can be charged together or separately. The fact that one conspirator is acquitted does not necessarily mean that the other may not be convicted. Even if two persons are charged jointly, it may be that the weight of evidence against one is more than the other. However, if they are tried jointly, logic would generally dictate that they cannot be convicted unless each is convicted.
If the conspiracy is to do a specific thing that is impossible, there may not be a conviction. If however, there is a general intention and the specific method chosen is impossible, a conviction for conspiracy may ensue.
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