Mens Rea and the General Inchoate Offences: Another New Culpability Framework

Abstract

This article examines approaches to reforming the mens rea of inchoate offences, focusing in particular on recently published proposals of the Irish Law Reform Commission, and contrasting them with very different recommendations recently adopted by the English Law Commission. Both sets of proposals recommend a departure from the orthodox position which is that for a defendant to be liable for an inchoate offence they must intend that the full offence be committed. In recommending a departure from that approach, each Commission’s proposal involves an expansion of the scope of inchoate criminal liability, though, the Irish Commission goes considerably further in this regard. In exploring the Commissions’ proposals, we are concerned to identify and evaluate the implications of the approaches they suggest. We argue that deciding what the mens rea of inchoate offences should be requires a clear conception of what the wrong is that is inherent in these offences which it is proposed to criminalise. Furthermore, any culpability framework must be rational and coherent, and therefore must consistently accord with whatever wrong it is claimed inchoate liability is there to penalise.

Keywords: inchoate, element analysis