There are two types of conspiracy:-
Conspiracy to commit offences by statute and Conspiracy to Defraud contrary to the common law (see below).
There are great similarities but this section deals with conspiracies to commit specific offences such as :-
- Conspiracy to import drugs (see Drug Offences)
- Conspiracy to supply drugs (see Drug Offences)
- Conspiracy to commit theft (see Theft)
- Conspiracy to evade duty
- Conspiracy to launder money (see Money Laundering)
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The offence of conspiracy
Criminal Law Act 1977, s.1
(1) If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with the intentions, either -
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
Exemptions from liability for conspiracy
Criminal Law Act 1977, s.2
(1) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence if he is an intended victim of that offence.
(2) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence or offences if the only other person or persons with whom he agrees are (both initially and at all times during the currency of the agreement) persons of any one or more of the following descriptions, that is to say -
(a) his husband or wife (spouse) or civil partner;
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence or of each of those offences.
A wife may conspire with her husband, contrary to section 1 of the Act if, knowing that her husband was involved with others in a conspiracy to commit an unlawful act, she agreed with him to join that conspiracy, notwithstanding that the only person with whom she concluded the agreement was her husband: R. v. Chrastny,94
Where husband and wife are charged with conspiring with another, the jury should be directed to acquit the husband and wife if they are not satisfied that there was another party to the conspiracy: R. v. Lovick (Sylvia) .
Companies - Companies and conspiracies
A company may be convicted of an offence of conspiracy: R. v. I.C.R. Haulage Co. Ltd
Where the sole responsible person in a company is the defendant, a charge or indictment for conspiracy between the defendant and that company will not succeed as there are not two or more persons or minds acting.
Penalties for conspiracy
Criminal Law Act 1977, s.3
(1) A person guilty by virtue of section 1 above of conspiracy to commit any offence or offences shall be liable on conviction on indictment in a case falling within subsection (2) or (3) below, to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question
(2) Where the relevant offence or any of the relevant offences is an offence of any of the following descriptions, that is to say -
(a) murder, or any other offence the sentence for which is fixed by law;
(b) an offence for which a sentence extending to imprisonment for life is provided; or
(c) an indictable offence punishable with imprisonment for which no maximum term of imprisonment is provided, the person convicted shall be liable to imprisonment for life.
(3) Where in a case other than one to which subsection (2) above applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for the offence to which the conspiracy relates.
The ingredients of conspiracy
The essence of conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the very plot is the criminal act itself: Mulcahy v. R.(1868).
Nothing need be done in pursuit of the agreement: repentance, lack of opportunity and failure are all immaterial.
It is the course of conduct agreed upon which is critical; if that course involves some act by an innocent party, the fact that he does not perform it and thus prevents the commission of the substantive offence, does not absolve the parties to the agreement from liability:
An agreement may amount to a conspiracy even if it contains some condition and it depends largely on what the condition is and this depends on the facts of each case.
The question is whether the prosecution can prove a real intention to be in an agreement to commit a crime.
Proving the agreement
Proof of the existence of a conspiracy is generally a "matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them": Actions by some defendants may be looked at as against all of them, to show the nature and objects of the conspiracy:
There must be an intention to be a party to an agreement to do an unlawful act. And the prosecution must prove it.
A defendant must be proved to have intended to be a party to an agreement to commit an offence.
"The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary guilty mind for the offence. An undercover agent who has no intention of committing the crime lacks the necessary guilty mind to be a conspirator" .
All conspirators must intend to play an active part in the agreed course of conduct. The organiser of a crime who recruits others to carry it out is equally guilty of conspiracy whether or not the organiser intends to play some active part in it thereafter: see R. v. Siracusa,90
Conversely, a person who intends that the offence should be carried out is guilty of conspiracy even if he has a larger purpose in mind, such as the gathering of evidence for the authorities: R. v. Jones (Peter),2002.
Knowledge of the law on the part of the defendant is immaterial. If what the alleged conspirators agreed to do was, on the facts known to them, an unlawful act, they cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that it was a crime.
If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon:
Intention to commit an offenceThere is no requirement that the prosecution should prove against any particular alleged conspirator that he intended that the offence the subject of the conspiracy should be committed.
What has to be proved, is that the accused knew that the course of conduct agreed upon involved the commission of an offence (although not the exact type of offence.
What is required is that the conspirators should agree on a course of conduct which involves an act or omission by at least one of them which is prohibited by the criminal law (statute or common law), knowing or intending that a criminal act will be taking place as part the course of conduct or as part of the agreement.
What the alleged conspirator intend is what the prosecution have to prove.
For example, an intent to commit grievous bodily harm is sufficient for murder, but is insufficient for conspiracy to murder: R. v. Siracusa,90
A conspiracy to steal cannot be proved by a conspiracy to rob: R. v. Barnard (Philip Charles),70
Nor can a conspiracy to import heroin (a Class A drug within the Misuse of Drugs Act 1971) be established by proving an agreement to import cannabis (a Class B drug at the material time): R. v. Siracusa, . But the charge could be worded to cover the commission of more than one offence.
The effect of Siracusa (as summarised in R. v. Patel 1991, and the summary was specifically approved in R. v. Taylor (Robert John) . The effect of these decisions is that where a conspiracy count identifies in the particulars of offence a particular controlled drug, it must be proved against any defendant not merely that he knew that the agreement related to the importation, production, supply, etc., of a controlled drug; he must be proved either
(i) to have known that it related to the particular drug mentioned in the indictment, or
(ii) to have known it related to a drug of the same "Class" (as specified in the Misuse of Drugs Act 1971) as the drug mentioned, without having any knowledge or belief as to it involving any particular drug, or
(iii) to have believed that it related to another particular drug of the same class, or of a class attracting a greater penalty, or
(iv) to have believed that it related to a drug of a class attracting a greater maximum penalty, without having any belief as to any particular drug, or
(v) to have not cared at all what particular drug was involved. A defendant would escape liability only where he mistakenly believed that the conspiracy related to a controlled drug of a class attracting a lesser maximum penalty.
The law relating to conspiracy can be highly complex and technical as the case above demonstrates.
Conspiracy to Defraud at common law
Much of the law is the same as for conspiracy by statute (or Act of Parliament).
The prosecution have to prove
- an agreement which dishonestly
- puts at risk the property of another.
This might sound simple but usually this offence is used by the prosecution when no other offence fits the facts.
It has to be interpreted by criminal defence lawyers who usually deal with commercial fraud cases or complex international frauds.
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