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 [1973] QB 815 England & Wales the English Court of Appeal held that one may incite by threat or pressure as much as by persuasion. In the South African case S v Mkosiyana (1966) 4 SA 655, 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 [2004] EWCA Crim 2187 Eng the Court of Appeal (Clarke LJ) adopted the view that encouragement must be a positive step "aimed at inciting another to commit a crime". If what is urged would not be a crime by the person incited, there is no incitement (Whitehouse, below).

The leading Irish authority is The People (AG) v Capaldi (1949) 1 Frewen 95 Ireland, 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.

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 (1881) 7 QBD 244 Eng). And the person incited must be capable in law of committing the crime — in R v Whitehouse [1977] QB 868 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, and since 1 November 2023 carries life imprisonment (s.3, Criminal Justice (Miscellaneous Provisions) Act 2023; previously ten years); in The People (DPP) v Gillane (Unreported, Court of Criminal Appeal, Lynch J, 14 December 1998) Court of Criminal Appeal (IE) the Court held that the offence is established by proving that the accused solicited any other person or persons to murder any other person. 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 "stir up 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. Irish courts apply Lord Denman's definition — an agreement "to do an unlawful act, or a lawful act by unlawful means" — and R v Parnell (1881) 14 Cox CC 508 is among the Irish authorities applying it; "unlawful" is wider than criminal, so an agreement to commit a tort may be a conspiracy — 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 (1746) 1 Leach 37 Eng). There is no recent Irish judicial pronouncement on the rule; the Law Reform Commission points to developments such as The State (DPP) v Walsh [1981] IR 412 (marital coercion) suggesting that spouses are no longer always treated as one person. A person may be guilty of conspiring to commit an offence they could not personally commit — in R v Whitechurch (1890) 24 QBD 420 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. In R v Anderson [1986] AC 27 England & Wales the House of Lords, applying the English Criminal Law Act 1977, held that the accused need not intend the agreement to be carried out; it is a statutory English ruling, persuasive at most here.

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 charged under it is liable to be indicted, tried and punished as a principal offender, or, where the object is murder, to life imprisonment (s.71(4), as substituted with effect from 1 November 2023); s.71 does not apply to a conspiracy to murder within s.4 of the Offences Against the Person Act 1861 (s.71(4A)). Irish law also recognises, obiter, a conspiracy to corrupt public morals: AG (SPUC Ireland Ltd) v Open Door Counselling Ltd [1988] IR 593 Ireland, where Hamilton P drew on Knuller v DPP [1973] AC 435 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 [1952] IR 91 Court of Criminal Appeal (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 [1964] IR 169 Supreme Court (IE) (Supreme Court; Lavery J dissenting) Walsh J stated "the proximity rule", quoting Parke B in R v Eagleton: "acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are". A midwife's false reports of births were each "sufficiently proximate" to an attempt to obtain money by false pretences.

The Court of Appeal applied the same idea in The People (DPP) v O'Brien [2015] IECA 160 Ireland, where Birmingham J (Sheehan and Mahon JJ agreeing) upheld 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, English cases can help with calibration, but they apply a statutory "more than merely preparatory" test, not the Irish proximity rule. In R v Campbell [1991] Crim LR 268 Eng attempted robbery was quashed where the accused loitered a yard from a post office with an imitation firearm — still preparation. Most exam facts need the Irish test applied to them directly.

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, a person convicted of an attempt cannot be given a longer term or larger fine than could be imposed for the completed offence (s.10(2) Criminal Law Act 1997). Ordinary attempted murder carries no minimum: the twenty-year minimum in s.4 of the Criminal Justice Act 1990 applies only to an attempt to commit one of the murders to which s.3 applies (for example of a Garda or prison officer acting in the course of duty).

Abandonment is no defence to attempt. Once a proximate act has been done with intent, the attempt is complete; in Sullivan Walsh J said, obiter, that the result would have been no different had the accused abandoned her plan, 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: in Sullivan Walsh J said, obiter, that his finding would be no different even if it had been impossible for the accused to obtain the money, 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 [1983] 1 All ER 189 Eng). For conspiracy, DPP v Nock [1978] AC 979 England & Wales 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 states the English common law, since changed by statute in England and Wales. There is no Irish case on an impossible conspiracy; the Law Reform Commission (Consultation Paper on Inchoate Offences, LRC CP 48-2008, para 3.79) takes the view that, given Sullivan, impossible conspiracies are still conspiracies in Irish law. Treat the Irish position as unsettled and argue it both ways 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.