Report No. 29
Conspiracy to Commit Public Mischief-English Law
1. A brief discussion of the offence of conspiracy as known to English law appears to be useful, first, because it has been used often to punish a conspiracy to defraud, and secondly, because its wide scope is illustrated by certain recent decisions1.
2. The following statement in one text-book2 seems to sum up the law neatly:-
"An agreement by two or more persons:-
(1) To commit a crime; or
(2) Subject to possible qualifications mentioned in the explanation3 to commit any other unlawful act; or
(3) To do any act which is (a) immoral or (b) tends to the public mischief; is a common law misdemeanour punishable with a fine and imprisonment;.
3. The offence covers not only a conspiracy to commit a breach cf statute, but also an agreement to contravene a law, whether statute-made or otherwise4-5.
4. That the offence has not become obsolete, will be shown by the charges of conspiracy framed in connection with the recent Great Train Robbery6, and the charges of "conspiracy to pervert the course of justice" framed against Detective Sergeant Challenor7 (later found to be insane and unfit to plead), and the case-law relating to conspiracy to commit summary offences8.
5. Certain species of the offence of conspiracy in criminal law have become controversial9. Of these, the conspiracy "to corrupt the public morals" and to commit a public mischief is one10.
The recent decision of the House of Lords11-12 leaves no doubt that the law recognises such a conspiracy13-14.
6. Some important instance of conspiracy to defraud15 may be noted. Agreements to do the following things have been regarded as punishable as conspiracy to defraud
(i) to raise the price of public funds on a particular day by false rumours16;
(ii) to make and publish a false balance-sheet, the shares of a company on the official list of stock exchange, in order to give a fictitious value to such share17;
(iiii) to induce a false belief among investors that there is a bona fide market for certain shares; by making sham sales, etc., at high prices18.
(iv) to make and publish a false balance-sheet, misrepresenting the financial condition of company19.
(v) to defraud a railway by obtaining non-transferable excursion tickets and selling them to other20.
7. The common law offence of conspiracy can be used for frauds in relation to passports, it seems21.
8. As to conspiracies and strikes, see discussion in the under-mentioned study22.
9. In New Zealand23-24, the offence of conspiracy has been narrowed down to specific classes of conspiracy.
An important feature of the crime of conspiracy to defraud is that it does not require "false pretence". As has been pointed out25, the crime of obtaining by false pretences requires a false pretence, but conspiracy to defraud does not.
Another feature worth noting is that the obtaining of property or the execution of some kind of document, which is necessary for the offence obtaining by false pretences in English law, is not necessary for conspiracy26. Thus, where the buyer of a mare entered into plan with another person to deceive the seller into supposing that the mare was unsound (so that the seller agreed to accept less than the price originally fixed), the plan was held to be punishable as conspiracy to defraud the seller of the balance of price, though no property was obtained27.
These two features also show that a conspiracy to defraud is criminal even if the act which it is agreed to do may not be criminal if done by only one person28-29.
In a recent case30, an agreement by a debtor (entering into a scheme of arrangement) to confer a fraudulent preference upon one creditor was regarded as punishable as conspiracy. Though the actual decision does not go to the length of holding that it was a conspiracy to defraud, the cases cited in the arguments, for the Crown31 throw a good deal of light on the subject, and also show that ultimately such agreements are "bottomed in fraud„ which is a species of immoralityg32".
1. See Shaw v. D.P.P., (1961) 2 AER 446: (1961) 2 WLR 897 (HL).
2. Cross & Jones Introduction to Criminal Law, (1964), p. 297, Article 90.
3. The qualification stated is to the effect that the second head would, perhaps, apply only to torts involving the elements of fraud and of malice. Cross & Jones Introduction to Criminal Law, (1964), p. 299.
4. See R. v. Jacobs, 1944 1 All ER 485: (1944) KB 417; 88 Solicitors' Journal, 188; and discussion thereof in Babulal v. King Emp., AIR 1945 Nag 218 (221) (Vivian Bose J.).
5. See also R. v. Sorsky, 1944 All ER 333 (CCA) and Halsbury, 3rd Edn., Vol. 10, p. 311, para. 569 (middle).
6. See R. v. Field, (1964) 3 WLR 605 (607-608) (CCA).
7. R. v. Pedrini, (September, 1964), 7 Current Law, 366-a, Notes of recent cases (CCA).
8. See R. v. Blamires Transport Services Ltd., (1963) 3 AER 170: (1963) 3 WLR 496 (CCA).
9. See the discussion in Glanville Williams Criminal Law, The General Part, 1961 Ch. 15.
10. For earlier cases, see Stallybrass Public Mischief (1933) 49 LQR 83 (191).
11. Shaw v. D.P.P., (1961) 12 AER 466: (1961) 2 WLR 897 (HL) discussed exhaustively by Goodhard. "The Shaw case; the law and public morals" (1961) 77 MLR 560.
12. See also C.C. Turpin Conspiracy to Corrupt Public Morals, (1961) Camb LJ 144.
13. Other cases relevant to this are--
(a) R. v. Newland, (1933) 12 All ER 1067 (CCA).
(b) Board of Trade v. Owem, 1957 AC 602: (1957) 1 All ER 411 (HL) (Discusses history of the offence in detail).
14. For earlier cases see Stallybrass "Public Mischief" (1933) 49 LQR 183, 191.
15. Halsbury, 3rd Edn., Vol. 10, p. 834 footnote (u).
16. R. v. De Berenger, (1814) 3 M&S 67. See Turner and Armitage, Cases on Criminal Law, 1964, p. 161 (as explained in R. v. Aspinal, infra.).
17. R. v. Aspinal, (1876) 2 QBD 48 (50) (CA).
18. Scott v. Brown Co., (1892) 2 QB 724 (CA).
19. R. v. Burch, (1865) 4 F&F 407.
20. R. v. Absolon & Clark, (1859) 1 F&F 498.
21. See Halsbury, 3rd Edn., Vol. 7, p. 265.
22. K.W. Wdderbum Intimidation and the Right to Strike, (1964) 27 MLR 257, 267.
23. See sections 155, 116, 257, 309, 310 (New Zealand) Crimes Act, 1961.
24. See also sections 43, 134, 135, 412, 558 to 561, Criminal Code of Western Australia.
25. Glanville Williams Criminal Law, The General Part, 1961, p. 690.
26. Glanville Williams Criminal Law, The General Part, pp. 690, 691.
27. Carlisle, (1854) Dears CC 377: 16 ER 750 (CCR). See Halsbury, 3rd Edn., Vol 10, p. 835.
28. R. v. Whitaker, (1914) 3 KB 1283 (CCR).
29. Halsbury, 3rd Edn, Vol. 10, p. 313, para. 570.
30. R. v Potter, (1953) 1 All ER 296.
31. See the arguments of Veale, Q.C. for the Crown.
32. Cf. Cockshott v. Bennett, 1788 Term Re: 765: 100 English Reports 411.