Attempt, Conspiracy and Incitement in Irish Criminal Law

“Inchoate” means just begun, and that is the whole idea. You do not need a completed robbery, arson or murder to convict — you need the encouragement, the agreement or the proximate act. Incitement, conspiracy and attempt form a ladder, and one set of facts frequently discloses all three in sequence. A good answer walks the ladder in order and concludes on each rung separately, because liability at an earlier rung is not undone by what happens later.

All three are governed by the common law in Ireland, supplemented by particular statutory forms. Two themes cut across them: factual impossibility, treated differently for each offence, and the relationship with accomplice liability, since an inciter or conspirator whose crime is carried out will usually also be an accomplice to the completed offence.

Incitement

Incitement is committed where one person tries to coerce, encourage or persuade another to commit a crime. It does not matter whether the person incited agrees, or ever does anything — the offence is complete once the encouragement is communicated.

The conduct element is deliberately wide. In Race Relations Board v Applin Persuasive (Eng), Lord Denning MR held that one may incite by threat or pressure as much as by persuasion. In the South African case S v Mkosiyana, Holmes JA described an inciter as someone who reaches out to influence another's mind towards committing a crime — a formulation that carries the communication requirement inside it. In R v Smith Eng, Clarke LJ required words or actions amounting to a positive step, and confirmed that if the thing urged would not itself be a crime, there is no incitement at all.

The leading Irish authority is The People (AG) v Capaldi Binding (IE), where the accused asked a doctor to do something for his pregnant girlfriend and offered money. The Court of Criminal Appeal accepted, obiter, that a mere expression of desire is not incitement — but upheld the conviction because offering payment went well beyond that. Black J spoke of stirring up enmity or offering some pecuniary or other inducement, and of incitement as conduct but for which the crime would not have occurred to the party incited.

Two refinements are worth carrying into an answer. Incitement need not be directed at a named individual: it may be addressed to the world at large (R v Most Eng). And the person incited must be capable in law of committing the crime — in R v Whitehouse Eng a father who encouraged his under-age daughter to commit incest was not guilty of inciting incest, because the offence exists to protect her and she could not in law commit it. Where communication fails entirely — a message that is intercepted and never arrives — the offence charged is attempted incitement.

There are statutory forms too. Section 4 of the Offences Against the Person Act 1861 criminalises soliciting, encouraging or persuading a person to murder another; in The People (DPP) v Gillane Binding (IE) Lynch J held there must be a definite intended victim, though the person solicited need not know the victim's details. Separately, s.2(1) of the Prohibition of Incitement to Hatred Act 1989 makes it an offence to engage in threatening, abusive or insulting conduct intended or likely to incite hatred against a protected group; intention need not be proved, though the s.2(2) defences become available where it is absent.

Conspiracy

Conspiracy is an agreement between at least two people to do a wrongful act, and it is complete on the agreement itself. Nothing need be done to carry it out. The classic statement is R v Parnell, where Barry J defined the offence as an agreement between two or more to commit a wrongful act with a view to injuring another — and made the striking point that the act agreed upon may be one which, if done by one person alone, would amount to no more than a civil wrong. The rationale is that a wrong done by many combined is more formidable than the same wrong done by an individual.

The actus reus is therefore simply the making of the agreement. It need not be formalised or executed, and no overt step need be proved. It follows that abandonment is no defence: two people who agree to burgle a warehouse and then think better of it have already committed the offence.

Three points on the parties. At common law spouses cannot conspire with each other, being treated as one entity (R v Robinson Eng); commentators doubt the rule's survival in Ireland, but it has not been abrogated. A person may be guilty of conspiring to commit an offence they could not personally commit — in R v Whitechurch Eng a woman who was not in fact pregnant could conspire to procure a miscarriage — and where an offence exists to protect a class, the other conspirator is still guilty. On mens rea, the accused must intend to enter the agreement and, per Lord Bridge in R v Anderson Persuasive (Eng), intend to play some part in the agreed course of conduct.

Beyond the common law, s.71(1) of the Criminal Justice Act 2006 creates a statutory conspiracy to commit a serious offence — one punishable by four years or more (s.70). It does not repeal common-law conspiracy, and a person convicted under it is punishable as if they had committed the substantive offence (s.71(4)). Irish law also recognises, obiter, a conspiracy to corrupt public morals: AG (SPUC Ireland Ltd) v Open Door Counselling Ltd Binding (IE), where Hamilton P drew on Knuller v DPP and accepted that the offence may be committed even where the agreement is to assist a lawful act, with the question whether morals are corrupted left to the jury.

Attempt: where preparation ends

An attempt is a proximate act done with intent to commit the substantive offence. Intention alone is never enough. In The People (AG) v Thornton Binding (IE), Haugh J held that a mere desire to commit a crime does not suffice: the steps must go beyond mere preparation and be a direct movement towards the commission of the substantive offence. In AG v Sullivan Binding (IE), Walsh J framed it as the difference between acts remotely leading towards the offence and acts immediately connected with it, an act being proximate where it is the first of a series of similar acts that would cumulatively result in the crime.

The workable Irish test comes from The People (DPP) v BK Binding (IE), where Barron J held that acts from which an intention to commit the offence can reasonably be inferred are sufficient. The Court of Appeal took the same line in The People (DPP) v O'Brien Binding (IE), where Mahon J approved a jury charge describing an attempt as taking an actual concrete step towards bringing the crime about, not merely forming an intention.

Because proximity is fact-dependent, the English cases are useful for calibration. In R v Jones Eng attempted murder was upheld where the accused held a loaded gun to the victim's head with the safety catch on and his finger off the trigger — proximate. In R v Campbell Eng attempted robbery was quashed where the accused loitered a yard from a post office with an imitation firearm — still preparation. Most exam facts sit between those poles.

The mens rea of attempt is an intention to commit the substantive offence, and it can be narrower than the mens rea of the offence itself. The headline example is murder: the substantive offence is satisfied by an intent to kill or to cause serious injury, but attempted murder requires an intent to kill only. An accused who stabs intending serious injury is guilty of murder if the victim dies, and of causing serious harm under s.4 of the Non-Fatal Offences Against the Person Act 1997 if the victim survives — but not of attempted murder. On sentence, the maximum for an attempt is generally the same as for the completed offence; attempted murder is provided for by s.3 of the Criminal Justice Act 1990, with a minimum of twenty years under s.4.

Abandonment is no defence to attempt. Sullivan is explicit: the offence charged is having the intent at the time the act constituting the attempt is carried out, so a change of heart afterwards does not exculpate.

Impossibility — the rule differs by offence

This is the highest-yield discriminator in the topic, and confusing the rules is a costly error. For attempt, factual impossibility is never a defence: Sullivan states that the ultimate impossibility of achieving or carrying out the crime attempted is not a defence, so picking an empty pocket is still attempted theft. For incitement, the position depends on the specificity of what was incited — a specific impossible crime cannot be incited, whereas a general one can (R v Fitzmaurice Eng). For conspiracy, DPP v Nock Persuasive (Eng) held impossibility a defence where the agreement was specific, the conspirators there having agreed to extract cocaine from a powder that contained none. But Nock was legislatively overruled in England and Wales and has not been followed elsewhere: R v Sew Hoy and United States v Dynar both treat objective impossibility as irrelevant. The safe answer is that the Irish position is specificity-dependent but genuinely contested — flag the tension rather than stating Nock as settled law.

Related Criminal Law notes: accomplice liability and joint enterprise · murder vs manslaughter · actus reus and mens rea · all free Criminal Law notes.