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Principles - conspiracy

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Conspiracy - introduction

History of statutory conspiracy

Following R v Churchill [1967] HL the Law Commission reported on Conspiracy and Criminal Law Reform (Law Com no 76):

    "What the prosecution ought to have to prove is that the defendant agreed with another person that a course of conduct should be pursued which would result, if completed, in the commission of a criminal offence, and further that they both knew any facts they would need to know to make them aware that the agreed course of conduct would result in the commission of the offence."

This report led to the enactment of the Criminal Law Act 1977.

 

Conspiracy is about blameworthy intention

Conspiracy imposes criminal liability on the basis of a person's intention.

 

This is a different harm from the commission of the substantive offence.

 

The intention which is criminalised in the offence of conspiracy should itself be blameworthy, irrespective of the provisions of the substantive offence.

 

A conspiracy is looking to the future. It is an agreement about future conduct.

 

Section 1(1) Criminal Law Act 1977

"…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 their intentions … (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement …he is guilty of conspiracy to commit the offence or offences in question."

There are three elements in statutory conspiracy

Element 1:

The actus reus of conspiracy is complete in the making of an agreement in which the parties intend to carry out their agreement.

 

The offence is complete even if the parties do not carry out their agreement.

 

The offence is complete even if the substantive offence is not thereafter committed by any of the conspirators or by anyone else.

 

Element 2:

The mens rea (apart from the mental element involved in making an agreement), comprises the intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators.

 

The conspirators must intend to do the act prohibited by the substantive offence.

 

The conspirators' state of mind must also satisfy the mental ingredients of the substantive offence.

 

If one of the ingredients of the substantive offence is that the act is done with a specific intent, the conspirators must intend to do the prohibited act and must intend to do the prohibited act with the prescribed intent.

 

Example: conspiracy to wound/ GBH

A conspiracy to wound with intent to do grievous bodily harm contrary to section 18 of the Offences of the Person Act 1861 requires proof of an intention to wound with the intent of doing grievous bodily harm.

 

Conditional agreements

On the one hand, if I conspire to rob a bank tomorrow if the coast is clear when I reach the bank is not, by reason of this qualification, any less a conspiracy to rob. On the other hand, if I agree to commit an offence should I succeed in climbing Mount Everest without the use of oxygen, plainly I have no intention to commit the offence at all.

 

Fanciful cases apart, the conditional nature of the agreement is insufficient to take the conspiracy outside section 1(1).
 

Element 3:

Under Section 1(2) conspiracy involves a third mental element: intention or knowledge that a fact or circumstances necessary for the commission of the substantive offence will exist.

 

Example: handling stolen goods

One of its ingredients in the offence of handling stolen goods is that the goods must have been stolen. That is a fact necessary for the commission of the offence.

 

Section 1(2) requires that the conspirator must intend or know that this fact will exist when the conduct constituting the offence takes place.

 

Strict liability and recklessness offences

Strict liability and recklessness have no place in the offence of conspiracy

Section 1(2) removes strict liability and recklessness from the statutory offence of conspiracy by requiring "intention" or "knowledge":

"Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."

Section 1(2) is not confined strict liability offences

A conspiracy is looking to the future. It is an agreement about future conduct. When the agreement is made the "particular fact or circumstance necessary for the commission" of the substantive offence may not have happened.

 

Section 1(2) expressly caters for this situation.

Generally, references to "knowingly" or the like in substantive offences are references to a past state of affairs.

 

On a charge of conspiracy to handle stolen property where the property has not been identified when the agreement is made, the prosecution must prove that the conspirator intended that the property which was the subject of the conspiracy would be stolen property.

 

R v Saik [2006] HL

 

Whole case here

In R v Saik [2006] HL the defendant suspected but did not actually "know" that the money he was laundering was the proceeds of crime, he was therefore not guilty.

 

In this case Lord Nicholls explains and clarifies the law of conspiracy and this now must be seen as the leading case on the subject.

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