Criminal Law: Conspiracy Offences and Agreements

Inchoate Offences: Conspiracy

Conspiracy: Definition and Elements

• Conspiracy is an offence where 2 or more people agree to commit a future offence
• Similarities to attempt: liability is tied to the principal offence, and the principal offence not being committed does not affect liability
• Differences from attempt: conspiracy proceedings can be brought for summary offences with consent from the DPP
• To constitute conspiracy:
  • There must be an agreement between 2 or more people
  • The agreement must be to pursue a course of conduct that will involve the commission of a crime
  • The parties must intend to do the act required for the offence and must intend or know the circumstances within AR exist

Mental Element (MR) in Conspiracy

• Key element of MR is ulterior MR, which is D's commitment to the future principal offence
• Unlike attempts, conspiracy requires identification of AR and MR elements in 2 separate Ds
• AR: agreement - a decision to pursue the criminal course of conduct must have been made (R v Walker)

Common Law Conspiracies

• Conspiracy to defraud: agreement to dishonestly deprive or interfere with property rights or to deceive a public official
• Conspiracy to corrupt public moral or outrage public decency: agreement to act in a highly offensive manner
• Conduct agreed need not amount to an offence in its own right

Assisting or Encouraging Offences: Serious Crime Act 2007 (s44-46)

• Three offences of encouraging or assisting crime:
  • S44: assisting or encouraging with intent to assist
  • S45: assisting or encouraging believing the offence will be committed
  • S46: assisting or encouraging believing one or more of a number of offences will be committed
• S47 clarifies the requirements for each offence, including ulterior MR

Defences

• Being reasonable (SCA 2007, s50): where circumstances exist that make the conduct reasonable, or D reasonably believes such circumstances exist
• Intention to commit principal offence is not required for conspiracy, but D must intend to play a role towards that principal offence (Anderson)### Proving an Offence under SCA 2007
• To prove an offence under this part, it is sufficient to prove that the defendant believed:
  • One or more of a number of acts would be done, which would amount to the commission of one or more of the offences.
  • Their act would encourage or assist in doing one or more of those acts.

SCA 2007, s47(5)

• If the offence is one requiring proof of fault, it must be proved that:
  • The defendant believed that, were the act to be done, it would be done with fault.
  • The defendant was reckless as to whether or not it would be done with that fault.
  • The defendant's state of mind was such that, were they to do it, it would be done with that fault.
• If the offence is one requiring proof of particular circumstances or consequences, or both, it must be proved that:
  • The defendant believed that, were the act to be done, it would be done in those circumstances or with those consequences.
  • The defendant was reckless as to whether or not it would be done in those circumstances or with those consequences.

Assisting or Encouraging (s44-46)

• These central terms are not defined in SCA 2007.
• Encouraging means inciting, convincing, emboldening, persuading, or threatening someone to commit an offence.
• Assisting means helping by whatever means, and need only be capable of assisting, not necessarily making use of the assistance.
• In both cases, the principal offence does not need to be committed for the defendant to be liable for assisting or encouraging the offence.

Mens Rea (MR) as to D's Own Conduct

• In each offence, the defendant requires MR as to whether their act will assist or encourage the conduct element of the principal offence.
• The requirement for each offence is different:
  • S44: requires INTENT that the act will assist or encourage (most serious of the three sections).
  • S45, S46: requires BELIEF that the act will assist or encourage.

Ulterior MR

• S47(5) provides the requirements for the ulterior MR:
  • As to the fault of the principal offender (P).
  • As to the circumstances or consequences of the principal offence.
• Ulterior MR as to principal offender's faults:
  • Belief or recklessness as to P's MR for the principal offence.
  • Or D has the principal MR themselves (covers cases of innocent agent).
• Ulterior MR as to the principal circumstances or consequences:
  • Belief or recklessness.

Defence: Acting Reasonably

• SCA 2007, s50 provides a specific defence of 'acting reasonably'.
• Where circumstances exist that make the conduct reasonable, or D reasonably believes such circumstances exist.

Conspiracy

• Mere agreement is sufficient, do not need preparatory conduct.
• Don't need to identify D2, as long as there is evidence of agreement.
• Wheel and chain conspiracies do not require everyone to have contact, but must show intentional (knowing) agreement to a common course of action.
• Excluded parties: spouses/civil partners, under 10s, principal vs AR.
• Imprecise agreements: must be sufficient detail to specify an offence.
• Conditional agreements: a conditional agreement to commit an offence is sufficient for liability.
• Impossible agreements: factually impossible plans can still be a conspiracy.
• Ulterior MR: intent to commit, must be at least two Ds who hold the intent at the time of the agreement.
• Intent or knowledge must exist with respect to all elements of the principal offence.
• Ignorance of the law is no defence.
• S1(2) of the act rules out a Kahn-like interpretation of principal circumstances MR.