Recent publications by law reform bodies worldwide

• Author: Claire Murray
• Position: B.C.L. (N.U.I.), B.L., Ph.D. (N.U.I.).
• Pages: 1-40

2010] Law Reform Update 1

RECENT PUBLICATIONS BY

LAW REFORM BODIES WORLDWIDE

COMPILED BY

CLAIRE MURRAY

A. England and Wales

Report on Conspiracy and Attempts

Law Com No. 318

December 2009

http://www.lawcom.gov.uk/docs/lc318.pdf

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

outline.

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

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 B.C.L. (N.U.I.), B.L., Ph.D. (N.U.I.).

Judicial Studies Institute Journal [2010:1

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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

http://www.lawcom.gov.uk/docs/cp192.pdf

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.