Recent publications by law reform bodies worldwide

AuthorClaire Murray
PositionB.C.L. (N.U.I.), B.L., Ph.D. (N.U.I.).
2010] Law Reform Update 1
A. England and Wales
Report on Conspiracy and Attempts
Law Com No. 318
December 2009
This Report deals with an aspect of what it terms the
“general part” of the criminal law; namely, the law that supports
the more specific criminal prohibitions, for example on murder,
rape and assault. This Report is linked to the Law Commission’s
Report on Incohate Liability for Assisting and Encouraging
Crime and the Report on Participation in Crime. There are nine
chapters in this Report. The Report contains a very detailed and
technical discussion of the proposed recommendations, and it is
not possible to set them out in any level of detail in this brief
Part 1 provides an overview of the content and structure of
the Report.
Part 2 analyses the fault element of conspiracy.
The recommendations are based on those set out in the
Consultation Paper on the issue. The chapter goes through the
submissions made to the Law Commission in detail, and sets out
the Law Commission’s response where appropriate. The chapter
also contains examples of how the proposals would operate in
practice. Each of the five recommendations is discussed in detail.
Part 3 discusses the issue of double inchoate liability.
This is where liability is incurred through commission of an
B.C.L. (N.U.I.), B.L., Ph.D. (N.U.I.).
Judicial Studies Institute Journal [2010:1
inchoate offence that relates to another inchoate offence. The aim
of the Law Commission is to rationalise the rules in this area. In
this respect the chapter considers the implications of the repeal of
section 5(7) of the Criminal Law Act, 1977, which provided that
incitement to commit the offence of conspiracy was not an
offence, by schedule 14 of the Serious Crime Act, 2007. The Law
Commission does not recommend the expansion of the law to
include an offence of attempting to conspire.
Part 4 deals with how conspiracy should be charged.
Where more than one offence may be the outcome of the course
of conduct that has been agreed, then separate charges of
conspiracy comprising separate counts on the indictment should
be used for each offence. This does not require legislative
changes. The Law Commission also recommends that the
requirement for the consent of the DPP for a prosecution for a
conspiracy to commit a summary offence be abolished.
Part 5 examines the current exemptions from liability for
conspiracy. The Commission recommends abolishing the out-
dated provision that a married couple cannot be charged with
conspiracy. This would also apply to civil partners.
The exemption should be retained for a victim conspirator
provided that certain criteria are met. An agreement involving a
child should not give rise to criminal liability for conspiracy.
Part 6 sets out a recommendation for a defence to
conspiracy. This would be a defence of reasonableness, and an
example of when it would apply would be where a law
enforcement officer enters into a conspiracy in order to expose
the other participants at a later point. The Law Commission notes
that the current absence of a defence of acting reasonably means
that the law on conspiracy is inconsistent with the law on
encouraging and assisting a crime.
Part 7 considers extra-territorial jurisdiction in relation to
the reformed offence of conspiracy. There is a broader approach
to the question of jurisdiction where the defendant is charged with
conspiracy. The Law Commission recommends that it should be
possible to convict a person of conspiracy to commit a
substantive offence, regardless of where any of the relevant
conduct took place, so long as the defendant knew or believed
that the conduct or consequence element of the intended
2010] Law Reform Update 3
substantive offence might occur wholly or in part in England and
Wales. The Law Commission also makes recommendations that it
should be possible to convict a person of conspiracy when various
elements of the offence occurred within the jurisdiction or were
committed by a person satisfying citizenship, nationality or
residency considerations.
Part 8 deals with reform proposals relating to the law on
attempt. In response to the provisional recommendations in the
Consultation Paper, the Law Commission notes that there was
agreement that the current provisions on attempt were not
operating satisfactorily. However, there was no consensus as to
the most appropriate way forward. The Report sets out in detail
the objections raised by those responding to the Consultation
Paper. The Law Commission nevertheless makes a number of
recommendations to reform the law on attempt, including the
introduction of liability for attempted murder by omission where
there is a recognised duty to act. However, omissions would not
generally give rise to liability for attempt.
Part 9 lists the recommendations of the Law Commission.
Consultation Paper on Adult Social Care
Law Com No. 192
February 2010
Adult social care refers to the responsibilities of local
social service authorities towards adults who need extra support.
It includes older people, people with intellectual disabilities,
physically disabled people, people with mental health difficulties
and carers. It can include things like the provision of meals, day
centres, home adaptations, and home care. It also includes the
mechanisms for delivering these services, such as community
care assessments, carers’ assessments and personal budgets.
The legislative framework underpinning these services is
piecemeal and complicated. There is no single modern statute
setting out what the law is. The aim of the Consultation Paper is
to establish a simple, consistent, transparent and modern
framework for adult social care law. There are 14 parts to this
Consultation Paper.

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