An Impossible Reappearance
| Date | 01 November 1983 |
| Published date | 01 November 1983 |
| Author | R. D. Taylor |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02553.x |
Nov.
19831
NOTES
OF
CASES
777
AN
IMPOSSIBLE
REAPPEARANCE
IN
its report on Attempts and Impossibility in relation to Attempt,
Conspiracy and Incitement,’ the Law Commission deliberately refrained
from proposing any alterations to the common law on incitement to
commit an impossible offence on the grounds that the common law
rule for incitement already corresponded with what it proposed for
attempts and conspiracy,
i.e.
that the impossibility of the completed
offence should be
no
bar to conviction for the inchoate crime. Some-
what perversely, in
R.
v.
Fitzmaurice,2
the Court of Appeal has re-
asserted the apparent logic of treating all three inchoate offences alike
at common
law
for the purposes of impossibility, with the effective
result, given the reversal of the common law rule
for
attempts and
conspiracy in the Criminal Attempts Act
1981,
of actually perpetuating
(albeit in precisely opposite form) an anomalous rule in respect
of
incitement.
The main obstacle which the court had to overcome in order to
assimilate the incitement rule with the common
law
rule for attempt
and conspiracy was the earlier Court of Criminal Appeal decision in
R.
v.
McDonough
which appeared to be expressly approved
of
by
Lord Scarman
in
D.P.P.
v.
Nock
on the basis that
“
,
.
.
the
actus
reus
was the making
of
the incitement.” Lord Scarman’s explanation
of
the
supposedly distinctive rule for incitement has never been regarded as
satisfactory
a
and the Court
of
Appeal quite understandably came to
the conclusion that
‘‘
this passage
in
Lord Scarman’s speech does not
support the proposition that cases
of
incitement are to be treated quite
differently at common law from cases
of
attempt and conspiracy.”
7
Although Lord Scarman’s explanation of the rule based on
McDonough
is
obscure and unsatisfactory, that does not necessarily
lead to the conclusion that such a rule cannot be based
on
the case.
Nevertheless, the Court sought to explain
McDonough
as
a
case where
there was
no
actual impossibility on the facts
“
though there may have
been
no
stolen goods or
no
goods at all which were available to
be
received
at
the time of the incitement, the offence of incitement to
receive stolen goods could nevertheless be proved because it was not
impossible that at the relevant time in the future the necessary goods
would be there.”
Law Commission
No.
102
(1980), paras 4.2
to
4.4.
I19831 2 W.L.R. 227.
The common law rule will still govern those
common
law conspiracies preserved by
(1962) 47 Cr.App.R.
37.
ti
11978)
A.C.
979 at 999.
a
See [I9781 Crim.L.R. 483 at
48-85
and
Williams,
Text
Book
of
Criminal
Low
’
119831
2
W.L.R. at 232.
*
Perhaps the point that Lord Scarman was trying
to
make
is
that made below at note
Loc
cir.
This is essentially the view taken
of
McDonough
by Cohen in (19791 Crim.
s.3(2),
(3)
of
the Criminal Law Act 1977, notably conspiracy to defraud.
(1978),
Supplenrerrt
(1979), at
p.
17.
17.
L.R. 239.
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