This is an edited version of the speech by Mr Justice Garrett Sheehanat the launch of the Law Reform Commission's consultation paper on inchoate offences last week
Inchoate offences criminalise behaviour that is working towards or leading up to the completion of a crime. In the days when the rule of law requires citizens to know what is required of them, when ignorance of the law is no excuse, it behoves us to promulgate laws that are sufficiently clear so that everyone knows what they can and cannot do. When it comes to this tension [between certainty and flexibility] the best may indeed be the enemy of the good and there is more to be said for an approach which favours certainty.
When reading through the section [of the consultation paper] on "Attempt", I was reminded of some transcripts of evidence that I had read of English and American cases in recent years. These transcripts disclosed a huge amount of police surveillance and it seemed to me that criminal offences, at least under Irish law, were disclosed at a much earlier point in the proceedings than when the police intervened.
Of course the reasons for late intervention (in one case a shooting was allowed to take place) may have been operational ones. However, it seems to me that it is in the interests of society that the Garda can intervene as soon as it has evidence that a person or persons are engaging in activity clearly designed to lead to criminal harm.
The paper draws attention to the English case of R v Campbell , Criminal Law Reports. In that case the defendant was arrested as he was about to enter a Post Office with an imitation firearm, a pair of sunglasses and a threatening note. The Court of Appeal held that because he had yet to enter the place of the intended robbery, the defendant's acts had not progressed beyond mere preparation, and thus could not be considered a criminal attempt to commit robbery.
In this jurisdiction these particular circumstances would at least be caught by other offences and you certainly would not find our DPP confining himself to an "attempt" indictment only.
It is interesting to note that the commission invites submissions on whether a general offence of criminal preparation is desirable.
One hopes that those involved in law enforcement will have an opportunity to contribute to this debate and be in a position to advise it there are practical situations where early intervention would be desirable and which the criminal law does not presently adequately cover.
There are a number of other interesting provisional proposals in this paper - for example at paragraph 5.09 the commission recommends that intra-jurisdictional attempts be expressly recognised as attempts try-able within the jurisdiction - something of far more relevance in the Ireland of today than 30 years ago.
It is also likely that the provisional proposals to abolish the common law offences of conspiracy to corrupt public morals, to outrage public decency and to affect a public mischief will provoke public debate.
Since the ultimate purpose of this exercise is not only to define criminal behaviour in accordance with the needs of modern Ireland but also to express what we as a society stand for, it seems to me to be relevant to comment briefly on a related aspect of law.
About the same time as I received the invitation to launch this report, I also received a copy of the annual Prison Chaplains Report. Last week I received a copy of a research report commissioned by the Bedford Row Family Project in Limerick entitled Voices of Families Affected by Imprisonment. Both reports make uncomfortable reading.
Is it too much to hope that the outstanding work of the commission might be extended to an examination of Irish prison law? If I am not mistaken your director of research, Raymond Byrne, co-authored the first book on Irish prison law some 30 years ago.
Hopefully this paper will stimulate disciplined discussion and co-operation between legal practitioners and the Garda, academics and judges - and all other interested individuals or groups - and that this in turn will lead to legal clarity and to a criminal code in which we can all take pride.