Report No. 69
III. Criminal Conspiracy-English Law
7.116. History.-
In England, conspiracy originated in the 13th century as a crime punishing1 conduct equivalent to that which is now covered by the action for malicious prosecution. By2the early 17th century, it had become an inchoate crime, encompassing the malicious agreement alone, even if its object had not been attained.3 Later, the Judges of the King's Bench extended the conspiracy concept to make criminal all agreements which had crimes as their objects.4
By the early 18th century conspiracy came to be used as a means to punish "all confederacies whatsoever, wrongfully to prejudice the third person".5 Finally, in 1832, Lord Denman defined 'conspiracy' as "an agreement to do an unlawful act, or a lawful act by unlawful means".6 But the word "unlawful" was found to be vague. It is well-known that because of the vagueness of the word "unlawful", acute controversy arose. The law of conspiracy even became an economic and political weapons directed against groups threatening the status quo.7
1. Sayre Criminal Conspiracy, (1922) 35 Harvard Law Review 393 (395) and by Holdsworth Conspiracy and Abuse of Legal Process, (1929) 37 LQR 462 (467) (Book Review of Winfield History of Conspiracy and Abuse of Legal Procedure).
2. Ordinance Concurrent Conspirators, (1305) 33 Edward reproduced by Sayre Criminal Conspiracy, (1922) 35 Harvard Law Review 393 (395).
3. Poultere's case, (1611) 77 English Rep 813.
4. Wright Criminal Conspiracy and Agreements, (1887), p. 26, referred to in Goldstein, Conspiracy to defraud the United States, (1959) 68 Yale LJ 405 (416).
5. Hawkins Pleas of the Crown, (1787) Vol. 1. p. 348, cited by Goldstein Conspiracy to defraud the U.S., (1959) 652 Yale L.J. 405, 416.
6. King v. Jones, (1832) 110 English Rep 485 (487); and see Pettibone v United States, (1893) 148 US 197 (203).
7. Holdsworth History of English Law, Vol. 8, pp. 381 to 384; Nelles The First American Labour Case (1931) 41 Yale LJ 165 (193); Sayre Labour and the Court, (1930) 39 Yale LJ 682 (684).
7.117. Criminal conspirac.- English law at present.-
At present, in England, while it is well established that conspiracy to commit an indictable offence is itself a crime, the question how far conspiracy to commit (i) an offence triable summarily, or (ii) a tort, or (iii) a breach of contract is punishable has been the subject matter of controversy for some time. Ever since the famous work by R.S. Wright on Conspiracies was published, this topic has engaged the attention of courts and writers, not only because Wright was a Judge of the High Court with great reputation for his knowledge of criminal law, but also because of the scholarly and penetrating analysis presented in the book.
7.118. Criminal conspiracy in English law.-
It can be said, however, that in England, the law of conspiracy is not so widely drawn as in India. While the commission of a crime, even a nonindictable crime-is naturally recognised as an unlawful purpose, with reference to criminal conspiracy, there are no precise or clear rules in regard to "non-criminal" unlawful purposes. Conspiracy is a common law misdemeanour, punishable with fine or imprisonment at the discretion of the court, except in the case of murder where, by statute, there is a maximum punishment of ten years imprisonment. Conspiracies to defraud, to commit a tort involving malice, or to COMMit a public mischief are broadly speaking, indictable. A conspiracy to commit or induce breach of contract is probably not indictable at the present day in England.
7.119. Where the agreement is not to commit a crime but other illegal act, the position in England as to the exact scope of the crime of conspiracy is thus in a fluid state. However, we are not concerned with the details of that debate. The law of criminal conspiracy in England was dealt with in some detail in Kamara's case1 where Lord Hailsham Lord Chancellor, discussed at length the offence of criminal conspiracy. As Lord Diplock said in another case,2 "the least systematic, the most irrational branch of English penal law (criminal conspiracy) still rests upon the legal fiction that the offence lies not in the overt acts themselves which are injurious to the common weal, but in an inferred anterior agreement to commit them."
1. Kamara v. D.P.P., (1973) 3 WLR 198 (HL).
2. D.P.P. v. Bhagwan, 1972 AC 60 (79) (HL).
7.120. Conspiracy complete before an offence committed.-
That a conspiracy is complete before any offence is actually committed, was established long ago in England. In a case in which judgment was delivered by Lord Ellenborough, Chief Justice,1 De Berenger and others were convicted on an indictment which averred that they conspired to circulate false rumous of the death of Napolean, with the intent that it would be thought that peace would soon be concluded between England and France so that the market price of government stock would rise.
After conviction, they moved for arrest of judgment, on the ground that it was no crime to raise the price of public funds and that the indictment was defective in tha't it did not name the alleged victims. Rejecting this motion, the court said that it was not necessary to specify the persons who become purchasers of the stock. Apart from the fact that the persons to be affected by the conspiracy would, at the time of the conspiracy, not be known because the accused "could not except by a spirit of prophecy, divine who would be purchasers on a subsequent day," such a statement was wholly unnecessary, "the conspiracy being complete independently of any persons, being purchaser".2
1. R. v. De Berenger, (1814) 105 ER 536.
2. Emphasis added.
7.121. Mens rea.-
The mens rea in conspiracy consists in the intention to execute the illegal elements in the conduct contemplated by the agreement in the knowledge of those facts which render the conduct illegal.1
The agreement represents actualisation of the intent, the assumption being that the individual merely thinking evil thoughts is not punishable, the requirement as to agreement is intended to ensure that the evil intent of the man branded as a criminal has been expressed in a manner signifying harm to society-that is the threat represented by the agreement. However, it must be recognised that punishing conspiracy means punishing conduct which may nowhere come near to the carrying out of the supposed threat.
1. Kamara v. D.P.P., (1973) 3 WLR 198 (HL).
7.122. Overt act.-
Even where there is a statutory requirement as to an overt act, it does not mean that the overt act itself must be harmful. The overt act may be completely harmless and may indicate little or nothing of the kind of injury to society which the conspiracy seeks to bring about.1 It is well established that it need not itself be criminal, excepting that it must stem from the agreement.2 The agreement to accomplish the prohibited purpose furnishes, without more, the basis for criminal liability.3
1. Fiswick v. United States, (1946) 329 US 211 (216), footnote. 4.
2. United States v. Rabiowick, (1915) 238 US 78 (86).
3. Braverman v. United States, 317 US 49 {53, 54).
7.123. Various types of criminal conspiracies.-
An agreement with a common (criminal) design may take various shapes. Howart C.J. in Mevrick,1 had occasion to deal with this aspect. The facts were as follows:-
Between the years 1924 and 1928, in London, a racket existed with regard to the conduct of night clubs in the West End. The police in this district consistently turned a blind eye to the activities of these clubs, which were carried on in a manner involving breaches of the law, particularly of the licensing laws. Ultimately, the matter was investigated, and it was found that one Sergeanf Coddard of the Metropolitan Police Force had been bribed by a number of night club operators, including Mrs. Moyrick, Luigi Ribuffi, Anna Gadda, and others. Mrs. Moyrick and Ribuffi were charged, together with Sergeant Coddard, on an indictment containing several counts. They were convicted and sentenced to imprisonment, and Mrs. Moyrick and Ribuffi appealed. Describing the variety of such crimes, Hewart C.J. said:-
"Such agreements may be made in various ways. There may be one person, to adopt the metaphor of counsel, round whom the rest revolve. The metaphor is the metaphor of the centre of the circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain. A communicates with B, B with C, C with D, and so on to the end of the list of conspirators. What has to be ascertained is always the same matter: is it true to say, in the words already quoted, that the acts of the accused were done in pursuance of a criminal purpose held in common between them?"
1. R. v. Moyrick and Ribuffi, {1929) 21 Cri App R 94.
7.124. Advantages of the prosecution.-
So much as regards the nature of the crime. It is well-known that the prosecution in a trial for conspiracy bears some advantage in contrast with other criminal trials. The general rule of the law of evidence is that actions or statements of X are not admissible against the accused, unless they are done or made either in his presence or by his authority. This limitation does not, however, apply to conspiracy trials. The prosecution is permitted to enter evidence which could not be regarded as having adequate probative value to be admissible for trial in any other offence. We shall have occasion to revert to this aspect later.
