- Common Law Conspiracies
s 5 CLA 1977 preserves two common law offences; conspiracy to defraud and conspiracy to outrage public decency.
2.1. Conspiracy to Defraud
Look for an agreement which deprives a person of something which belongs to them, which need not be a crime:-
Scott [1975] AC 819 H/L, where the defendants paid projectionists to allow them to copy films and distribute the copies for their own advantage. There was no theft or deception -
(remember Lloyd [1985] QB 829 C/A, where the defendant was a projectionist who took current films out of the cinema. They were copied by others, after which the defendant took them back to work. The issue was whether the defendant had an intention to permanently deprive the film owners of anything (he was charged with conspiracy to steal). It was HELD, allowing the appeals, that " ... a mere borrowing is never enough to constitute the necessary guilty mind unless the intention is to return the 'thing' in such a changed state that it can truly be said that all its goodness or virtue has gone," per Lord Lane CJ. As the films were returned intact, the borrowing did not amount to a theft, so the conspiracy to steal charge was not made out)
-
but there was a conspiracy to defraud in respect of the deprivation of payment to the copyright owners. Viscount Dilhorne (with whom Lords Reid, Diplock, Simon & Kilbrandon agreed) said:-
“[I]n my view it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.”
Allsop (1976) 64 Cr App R 29 C/A, (false reps. to secure HP for cars; if loans repaid, no prejudice?) where Shaw LJ said:-
“Interests which are imperilled are less valuable in terms of money than those same interests when they are secure and protected.”
And see:-
Adams -v- R [1995] 1 WLR 52 P/C, where the appellant was the director of a holding company and a number of its subsidiaries. It was alleged that he conspired with others to defraud the companies by using a complex system of off-shore companies and agreements to disguise the fact that the companies’ assets would be used to make a secret, personal profit. It was HELD that, as the companies were entitled to recover secret profits made by directors, an agreement to disguise the source of such profits could amount to a conspiracy to defraud.
Contrast with:-
Tarling [1979] Crim LR 220 C/A, where it was HELD that an agreement to make a secret profit would not equate to the offence.
2.2. Conspiracy to defraud: the “sandwiches” case [not for use in lecture?]
R –v- Cooke [1986] 2 All ER H/L: the defendant and others were BR buffet car staff who had sold food/drink to BR customers which was not BR property and in respect of which they pocketed the proceeds. When they sold BR food/drink they handed the money over to BR. HELD: the fact that their conduct caused a loss to BR amounted to the actus reus of conspiracy to defraud; the fact that they intended to cause such loss was the mens rea of that offence. It did not matter that merely selling food/drink was not a crime.
Now consider:-
R -v- Rashid [1977] 1 W.L.R. 298 C/A: D, a British Rail steward, was caught boarding his train carrying two sliced loaves and a bag of tomatoes. It was alleged that he was going to make sandwiches to sell to passengers on an enterprise of his own. He was convicted of having in his possession articles for use in the course of or in connection with a cheat contrary to the Theft Act 1968 s. 25(1). The judge directed the jury during the course of the summing up, that the offence could be made out if D had intended a fraud or cheat on his employers. On appeal by D, held, that that was a misdirection; that the offence could only be proved in relation to the passengers who bought the sandwiches, i.e. that they would not have bought them if they had known they were D's property. In any case, the court was inclined to think that the prosecution was misconceived, and that on the facts and on a proper direction, no jury would have convicted.
Thankfully, the “cheat” offence is not on the syllabus. Why, though, was Mr Rashid not charged with conspiracy to defraud? Note that the dates of the cases do not matter for this purpose.
2.3. Conspiracy to Corrupt Public Morals/Outrage Public Decency
Look for something morally “tacky”:-
Shaw -v- DPP [1962] AC 220 H/L (the “Ladies Directory” case) where Lord Simonds said:-
"I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for."
The decision was not unanimous. Lord Reid said:-
"It has always been thought to be of primary importance that our law, and particularly our criminal law, should be certain ... it seems to me that the court has transferred to the jury the whole of its function ... this branch of the law will have lost all the certainty which we rightly prize in other branches of the law."
The decision was attacked, and was reviewed in:-
Knuller -v- DPP [1973] AC 435 H/L, where the defendants had published a “contacts” page for gay people. It was HELD that there was an offence of conspiracy to outrage public decency. However, the residual power to create new offenses was expressly denied by the whole House. Lord Morris said:-
“In recognising that there is a common law offence of conspiring to outrage public decency, learned counsel was amply supported by authority.
“It has sometimes been asserted that in his speech in Shaw’s case Viscount Simonds was proclaiming that the courts have power to extend the sphere of the law by devising new extensions of the operations of the criminal law: his use of the words ‘residual power’ is pointed to as a basis of what is asserted. In my view, the sustained reasoning of his speech refutes the assertion.”
2.4. The mens rea of common law conspiracies
We have seen how Gibson [1990] 3 WLR 595 C/A is authority for the proposition that it is sufficient that the defendant intended to do the act which had the effect of outraging public decency. The use of the word “defraud” in conspiracy to defraud seems to import extra elements of mens rea into that offence. In:-
Wai Yu Tsang [1992] 1 AC 269 P/C, where the defendant was charged with conspiracy to defraud where he had agreed with others to disguise the dishonouring of cheques in his employers’ (bank) accounts. The dishonoured cheques were issued in a “kiting” scheme. The defendant argued that he was trying to stave off the bank’s collapse. There was no evidence that he was involved in the “kiting”. Lord Goff said:-
“ ... it is enough ... that ... the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.”
A benign motive will not be sufficient to negative a dishonest intention, although it may be evidence that the defendant was not acting dishonestly.
- Jurisdictional issues
Generally, the agreement must be in respect of an offence to be committed within the jurisdiction, but see the Sexual Offences (Conspiracy and Incitement) Act 1996, which makes it an offence to conspire to commit certain sexual acts outside the UK where:-
* the pursuit of the agreed course of conduct would involve one of the defendants committing an act outside the UK;
* which amounts to an offence according to the law of the country where it would be committed;
* and would be an offence under s 1 (1) Criminal Law Act 1977 had it been committed in the UK; and
* a party to the agreement does something in relation to the agreement prior to it being made, or a person becomes a party to the agreement, or does/omits to do something in furtherance of the agreement within the jurisdiction.
An agreement abroad to commit a crime in England will be triable as a conspiracy: Sansom [1991] 2 All ER 145 C/A.
4. Incitement
Incitement is a common law offence, triable in the same way as the offence incited. Look for:-
* encouragement or persuasion to commit a crime.
It differs from counselling (as in aiding or abetting or counselling or procuring the commission of an offence) in that no substantive offence need be carried out.
4.1. The act incited must be a crime
It is necessary for the act incited to amount to a crime:-
Whitehouse [1977] 3 All ER 737, where the defendant encouraged his 15 year old daughter to have intercourse with him. She could only be guilty of incest if she were over 16. His conviction for incitement was quashed.
It is not necessary that the incitement be direct:-
Invicta Plastics -v- Clare [1976] Crim LR 131 D Ct, where the defendants had advertised for sale a device which could be used for detecting police speed traps. It’s use for this purpose would contravene the Wireless Telegraphy Act 1949.
4.2. The mens rea for incitement
It used to be thought necessary that the person incited has the necessary mens rea for the offence incited:-
Curr [1968] 2 QB 944 C/A, where the defendant trafficked in family allowance books. There was no evidence that the women he incited to present the books for payment knew that they were committing an offence. HELD, that it was necessary to prove that the women incited knew that the actions they carried out were an offence. Appeal allowed.
Curr was explained in Armstrong "The Times" 10th December 1999 D Ct. The true position seems to be that it is necessary for the prosecution to show:-
i) that the incitor intended that the person incited would commit the offence in question (something that was not proved in Curr); and
ii) that it was possible for the person incited to commit the offence (in Armstrong this was shown by evidence that the person incited (the police officer) had access to a stock of indecent photographs).
It was not necessary to show that the police officer actually intended to commit the offence.
If it is different from (i) (above), it may also be necessary for the inciter to intend to incite the offence:-
Shaw [1994] Crim LR 365 C/A, where the dispute was whether the defendant intended to incite an offence of obtaining by deception, or whether (as he claimed) he merely intended to show up a deficiency in his employers’ accounting processes. The person allegedly incited did not know of the defendant’s alleged intention. HELD, allowing his appeal, that if they merely thought (rather than believed) that the defendant’s story was true, they should have acquitted him.
This decision has been heavily criticised by Smith:-
“It is necessary to show that [the defendant] intended [the person incited] to act dishonestly and with the intention permanently to deprive but quite unnecessary to show that [the defendant] had any such dishonest intentions ... “
5. Attempts
5.1. The Statutory framework
The Statutory framework is provided in s 1 Criminal Attempts Act 1981 which tells us that a person is guilty of an attempt where s/he:-
“ ... does an act which is more than merely preparatory to the commission of [an] offence”
with the intent to commit that offence.
5.2 Excluded activities
Basically any offence can be attempted, although s 4 (1) (c) CAA 1981 excludes the following:-
* attempting to conspire
* attempting to aid abet counsel or procure
* attempting to assist an offender after the commission of a crime.
Attempting the “impossible” crime is an offence:-
Shivpuri [1985] 1 All ER 143 H/L, where the defendant was convicted of attempting to deal with prohibited drugs where he had admitted that he had handled packets of heroin, which turned out to be snuff. It was HELD that he could be guilty of the attempted offence, even though commission of the full offence would have been impossible (reversing Anderton –v- Ryan [1985] AC 560 H/L).
5.3. “Acts which are more than merely preparatory”
s4 (3) CAA 1981 states that once there is sufficient evidence on the “more than merely preparatory” point (a question of law), the question whether act(s) were more than merely preparatory becomes a question of fact. The main area of doubt is the extent to which the defendant must commit the actus reus of the full offence. Check for sufficient coverage of the actus reus:-
Gullefer [1990] 1 WLR 1063, where the defendant interrupted a greyhound race. He was trying to stop the race so that he could recover his stake money. He got no further than stopping the race: stewards apprehended him and minds turned towards how to make his actions criminal. He was convicted of attempted theft of the stake money, but it was HELD on appeal that, as he had not tried to claim the money back, he had only done acts preparatory to the commission of the full offence.
or possibly geographical proximity:-
Campbell (1991) 93 Cr App R 350 C/A, where the defendant was arrested in front of a post office carrying an imitation gun and a threatening note. Had he done more than merely preparatory acts? HELD, that it would be difficult to uphold a conviction for an attempted robbery where the accused had not arrived at the place where the crime was to be committed – here, inside, rather than outside the Post Office, as robbery requires proof of the use/threat of force. Each case would depend on its’ facts. The conviction was quashed.
Gullefer was applied in:-
Jones [1990] 3 All E.R. 886 C/A, where the defendant was convicted of attempted murder. He appealed, claiming that, though he was pointing a sawn-off shotgun at the victim, since he needed to perform three further acts - (a) removing the safety catch of the shotgun (b) putting his finger on the trigger and (c) pulling the trigger - to complete the full offence, his acts were merely preparatory. The C/A emphasized that the correct approach was to give the words of the statute their natural meaning; the words "more than merely preparatory" did not mean the "last act within his power". The appeal was dismissed.
This approach was followed in:-
AG’s Reference (No 1 of 1992) [1993] 2 All E.R 190: the defendant had attacked the victim, a person known to him for several years. The evidence suggested that he was too drunk to penetrate the victim, and there was doubt as to whether he had tried fully to do so. The trial judge directed an acquittal, and the AG posed the following question for the C/A:-
“Whether, on a charge of attempted rape, it is incumbent on the prosecution, as a matter of law, to prove that the defendant physically attempted to penetrate the woman's vagina with his penis."
The Court ruled that it was not. Lord Taylor CJ noted:-
“It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to prove that the defendant with the requisite intent had necessarily gone as far as to attempt physical penetration of the vagina. It is sufficient if there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence. For example, and merely as an example, in the present case the evidence of the young woman's distress, of the state of her clothing, and the position in which she was seen, together with the respondent's acts of dragging her up the steps, lowering his trousers and interfering with her private parts, and his answers to the police, left it open to a jury to conclude that the respondent had the necessary intent and had done acts which were more than merely preparatory. In short that he had embarked on committing the offence itself.”
This notion that “acts which were more than merely preparatory = embarked on committing the offence itself” was applied most controversially in:-
Geddes “The Times” 16th July 1996 C/A, where the appellant was found in the boy’s toilet in a school. He ran off, leaving a bag containing string, sealing wax, a knife and other items. He was charged with attempted kidnapping. It was HELD on his appeal against conviction that a criminal attempt was made only if it could be shown that the defendant had done an act which showed that he was actually trying to commit the full offence, rather than merely putting himself in the position to commit the offence. As the appellant had not been in contact with any children at the school, there was insufficient evidence to sustain his conviction.
This does violence to the language of the Act. An act which is “more than merely preparatory” may well be short of the Court of Appeal’s ‘rule of thumb’. Once again the Court distances itself from common sense, and doubtless wonders why people have no faith in the criminal justice system.
5.4. The mens rea of attempt
The basic principle is that the defendant must have intended to commit an offence. This seems to require that s/he intend to commit the full offence which was in fact attempted. At common law:-
Mohan [1975] 2 All ER 193 C/A, where the defendant drove his car at a policeman to affect an escape. He was charged with attempting to cause bodily harm to the officer. The trial judge directed the jury that they could convict if they were satisfied either (i) the defendant deliberately drove the car in the way he did, realising that such driving was likely to cause bodily harm, or being reckless as to whether such harm would be caused. He was convicted and appealed. HELD, that to prove an attempt it was necessary to prove a specific intent:-
" ... a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged the accused attempted to commit, no matter whether the accused desired that consequence of his act or not" per James LJ. Conviction quashed.
It follows from this that to prove an attempt to murder, it is necessary to prove an intent to kill, and an intention to cause gbh will not suffice. This was confirmed in:-
Walker & Hayles [1990] Crim LR 44 C/A, where the defendants had dropped a man from a third floor balcony. He survived, and the defendants were charged with attempted murder. The trial judge directed the jury that the prosecution had to prove that the defendants recognised that there was a “very high degree of probability” that death would occur. They were convicted and appealed. It was HELD that a Nedrick-style direction was preferable, but what the trial judge had said was close enough, particularly as he had stressed that it was necessary to prove an intention to kill.
and in:-
Gotts [1992] 1 All ER 832 H/L where the 16 year old defendant was charged with attempted murder of his mum. He claimed that his father had threatened to shoot him unless he did so. The trial judge ruled that duress was not a defence to attempted murder, and G changed plea to guilty. He was sentenced to 3 years probation and appealed. (Q) Whether duress was a defence to a charge of attempted murder? HELD (3 v 2) that it was not:-
(i) The "highest duty of the law [is] to protect the freedom and lives of those that live under it" per Lord Jauncey;
(ii) it was pure chance that an attempted murderer was not an actual murderer, so there was no logical or policy ground for distinguishing between the case of the successful and the unsuccessful would-be murderer; and
(iii) as an intent to kill had to be proved to sustain a conviction for attempted murder, no desperate hardship was caused.
5.5. Where the main offence can be committed recklessly
Generally speaking, it would appear that an offence which can be committed recklessly can only be attempted intentionally, unless the recklessness relates to a circumstance of the offence, as in:-
Khan [1990] 2 All ER 783 C/A, where the defendants were convicted of the attempted rape of a girl. The accused did not penetrate her. She did not consent to any sexual activity. They did not care whether she consented or not. The question to be decided was whether the crime of attempted rape could be committed recklessly. HELD. dismissing their appeals, that it could in the sense that:-
" ... an acceptable analysis of the offence of rape is as follows:
(1) the intention of the offender is to have sexual intercourse [with the victim];
(2) the offence is committed if, but only if the circumstances are that (a) the [victim] does not consent; AND (b) the defendant knows that s/he is not consenting or is reckless as to whether s/he consents.
"Precisely the same analysis can be made of the offence of attempted rape:
(1) the intention of the offender is to have sexual intercourse with [the victim];
(2) the offence is committed if, but only if the circumstances are that (a) the [victim] does not consent; AND (b) the defendant knows that s/he is not consenting or is reckless as to whether s/he consents.
"The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse ... No question of attempting to achieve a reckless state of mind arises ... a man does not recklessly have sexual intercourse, nor does he recklessly attempt it. Recklessness ... arises not in the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse."
Thus it was sufficient if the defendants intended to have sexual intercourse with the victim and were reckless as to whether she consented.
A similar decision was reached in:-
AG Ref (No. 3 of 1992) [1994] 2 All ER 121 C/A, where the question was whether on a charge of attempted arson in the aggravated form (s 1 (2) CDA 1971: "A person who without lawful excuse destroys or damages any property, whether belonging to himself or another (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b ) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered shall be guilty of an offence.") it was sufficient to prove recklessness as to endangerment of life in addition to a specific intent to cause danger by fire. A petrol bomb had been thrown at people in and around a car; the bomb had missed them but had set fire to the garden wall of a house a pavement’s width from the car. It was HELD that the question should be answered in the affirmative. Khan was approved.
5.6. The Mens Rea for Aiding and Abetting an Attempt
O’Brien [1995] Crim LR 734 C/A, where the defendant was convicted of aiding and abetting an attempted murder. He appealed on the basis that he could only be guilty if he knew that the principal intended to kill. HELD, that this was not so. The defendant was guilty of aiding and abetting an attempted murder where he foresaw that death or grievous bodily harm might have resulted from the common plan being carried out, and the jury were satisfied that the principal was guilty of attempted murder.
5.7. Punishing attempts
Where the sentence is fixed by law (i.e. these days, murder) the sentence is life; for other indictable offences, the sentence is the same as for the full offence; where the offence is triable either way and is heard by the magistrates, the maximum allowed to the magistrates for the full offence: all s 4 (1) CAA 1981.
