Criminal law lecture 28/01/19 PDF

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Criminal law lecture – 28/01/19 Inchoate offences  Criminal Attempts Act 1981  Actus reus: Acts which are “more than merely preparatory” to the commission of the full offence.  Mens rea: Intention. But remember the uncertainty between Khan and Pace and Rogers. What if a crime requires several different forms of mens rea below that of intention? (E.g. sexual offences, handling stolen goods, criminal damage endangering life, etc). -

SCA 2007 Old law of incitement gone. It is now “encouraging or assisting crime.” Actus reus: An act ”capable of encouraging or assisting an offence.” Mens rea: Different for ss 44, 45 and 46. Intention (44), belief (45), belief that one of several offences will be committed, but not sure which (46).

 “Conspiracy is one of the most complex offences in English law. It is ill-defined and lacks even a clear rationale. Few would deny that reform is desirable.” (Smith and Hogan, 15th ed, p. 473)  ”The reason for criminalization is largely preventive, as in the law of attempts. […] Persons who go so far as to reach an agreement to commit a crime, and are caught before the agreement is carried out, may not be significantly less blameworthy or less dangerous than persons who conspire and succeed.” (Horder, Ashworth’s Principles of Criminal Law, 8th ed, p. 485) We punish people who are conspiring as means of prevention from harm We shouldn’t wait until you kill somebody before the law intervenes Liberalists would say it is only right to punish people if they have actually done harm  Prior to 1977, conspiracy was a common law offence only.  Now, there are two forms:  Statutory conspiracy under s1 of the Criminal Law Act 1977  Common law conspiracies to:  Defraud  Do an act which tends to corrupt public morals or outrage public decency.  See s5 of the Criminal Law Act 1977. – section one talks about statutory conspiracy  Section 5 talks about common law conspiracy – conspiracy to commit fraud and conspiracy to break public morals  “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, either Will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

 Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, He is guilty of conspiracy to commit the offence or offences in question.” - Agreement has to be between two or more people for it to be a criminal conspiracy 2) “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 one other party to the agreement intend or know that the fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.”  Actus Reus:  An agreement with at least one other person to pursue a course of conduct that will necessarily amount to the commission of any offence by at least one of the parties to the agreement.  Mens Rea:  “Carried out in accordance with their intentions.”  Knowledge or intention as to circumstances in some contexts.  Not quite as straightforward as it looks. This is law after all!  If the punishment for the substantive offence is life imprisonment, conspirators to commit that offence also receive the mandatory life sentence. (CLA 1977, s3(2))  If the punishment for the substantive offence is one of imprisonment, conspirators are liable to a term of imprisonment not exceeding the maximum sentence for the offence. Where more than one offence is agreed upon, conspirators are liable for the punishment given for the more serious offence. (CLA 1977, s3(3))  Punished as if you have committed the full offence

 Forms of conspiracy: An agreement.  Should this be enough? – issue of lack of harm; counter argument is about prevention; conspiracy is still a morally culpable act  Law Commission: “The reaching of an agreement is, of course, itself conduct.” (Law Com No. 318, para 2.33)

 Meyrick (1930) 21 Cr App R 94:  Three defendants separately and independently offered bribes to police officers to help them evade licensing laws.  “In order that persons may conspire together it is not necessary there should be direct communication between each and all.” (per Lord Hewart CJ, at p. 101) – looking for a shared/common purpose – no requirement for any communication between the conspiring parties  “What has to be ascertained is always the same matter: is it true to say […] that the acts of the accused were done in pursuance of a criminal purpose held in common between them?” (per Lord Hewart CJ, at p. 102)

 Mehta [2012] EWCA Crim 2824  D1 arranged for people to fraudulently apply for loans from a bank. D2 worked for the bank and approved all of the loans. A third person, Mr Murphy, was identified by the prosecution as being involved in the arrangement, but was not charged with the conspiracy.  D2 was acquitted, whereas D1 was convicted. If D2 was not guilty, how could D1 be guilty?  Mehta [2012] EWCA Crim 2824  “A conspiracy requires that the parties to it have a common purpose or design.  A common design means a shared design. It is not the same as similar but separate designs.  In criminal law (as in civil law) there may be an umbrella agreement pursuant to which the parties enter into further agreements which may include parties who are not parties to the umbrella agreement. So, A and B may enter into an umbrella agreement pursuant to which they enter into a further agreement between A, B and C, and a further agreement between A, B and D, and so on. In that example, C and D will not be conspirators with each other.” (per Toulson LJ, at 36) Just because two people both want to commit the same crime doesn’t mean they’re conspiring, there has to be a shared design  Section 2(1): Victims of the intended offence.  Section 2(2): a) Spouse or civil partner; (cf, Chrastny [1991] 1 WLR 1381 – husband, wife and third party) b) A person under the age of criminal responsibility (below the age of 10); c) McDonnell [1966] 1 QB 233: D1, a sole director of a company, cannot conspire with the company (known as a “legal person”). Statutory conspiracy: course of conduct  DPP v Nock [1978] AC 979:  Defendants agreed to extract cocaine from a substance by putting it through a particular process. In fact, this could never have produced cocaine.  The House of Lords held that they were not liable for conspiracy to produce cocaine as they never could have produced cocaine. It was a more limited agreement to undertake the actions that they took which could never have produced a substantive offence.  This has been directly reversed by s1(1)(b) of the CLA 1977, inserted by the Criminal Attempts Act 1981. ‘Necessarily’  Jackson [1985] Crim LR 444  Agreement to shoot V in the leg if he was found guilty of burglary – they said they didn’t want to shoot him in the leg but that it was a fall back decision  “Necessarily” does not mean “inevitably”.  On the other side of the line: driving to Edinburgh in a very fast time.

 O’Hadhmaill [1996] Crim LR 509  Defendants were members of the IRA. In the mid-1990s there was a ceasefire agreement. Ds produced bombs “just in case” the cease-fire broke down.  Held: this was still an agreement that would “necessarily” lead to an offence – still a conspiracy An offence:  Summary offences (e.g. common assault):  Section 4(1): Require the consent of the DPP.  Double inchoate liability?  It is possible to conspire to attempt a crime and to conspire to commit one of the crimes in ss 44 – 46 of the SCA 2007.  Summary offence is a very small offence Complicity:  Section 1(1): “will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement.”  Kenning [2008] EWCA Crim 1534:  One cannot be complicit (i.e. aid and abet) a crime unless the substantive offence has been committed.  “It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt so to do.” (per Lord Phillips LCJ, at 18)  “An agreement to aid and abet an offence is not in law capable of constituting a criminal conspiracy under section 1(1) of the 1977 Act.” ( per Lord Phillips LCJ, at 21) Mens Rea (Intention):  Section 1(1): “If the agreement is carried out in accordance with their intentions.”  D1 must intend to do the actions or speak the words that form the basis of the agreement with D2.  See later lectures on automatism and insanity.  Saik [2006] UKHL 18:  If the crime requires intent to do X, conspirators must also intend that they act with the requisite intent. I.e. s18 of the OAPA 1861. ( per Lord Nicholls, at 4)  Anderson [1986] AC 27  Prison break! D1 claimed that he never actually intended to carry out the plan, he was going to run off with the money and head to Spain.  “I do not find it altogether easy to understand why the draftsman of this provision chose to use the phrase ‘in accordance with their intentions’.” (per Lord Bridge, at p. 38)  If D1 lends a car to a gang to use in a robbery, knowing that they are going to use it in a robbery, and is indifferent to whether or not the robbery takes place, he is still liable for a conspiracy to rob.

 Anderson [1986] AC 27

 However, if D1 learns of a plan to commit an offence, and enters into an agreement to commit an offence “with the purpose of exposing and frustrating the criminal purpose of the other parties to the agreement”, D1 will not have the mens rea required for a conspiracy. (per Lord Bridge, at p. 39)  “The necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required.” ( per Lord Bridge, at p. 39)  Anderson [1986] AC 27  Here, D1 agreed to take part in the offence, and “neither the fact that he intended to play no further part in attempting to effect the escape, nor that he believed the escape to be impossible, would, if the jury had supposed they might be true, have afforded him any defence.” (per Lord Bridge, at p. 39)  Heavily criticised:  Smith and Hogan (15th ed, p. 453): Significantly expands the scope of conspiracy.  Ferguson (1986) 102 LQR 26, at 28: Defeats the intentions of Parliament and s1 has been “wrongly interpreted”. Poses difficulties for undercover police officers.  McPhillips (1990) 6 BNIL:  Court of Appeal of Northern Ireland stated that where D had agreed to plant a bomb, but intended to give a warning, he could not be part of a conspiracy to murder.  Clearly evading the decision in Anderson.  Siracusa (1989) 90 Cr App R 340:  Participation in a conspiracy can be active or passive. D’s intention is “established by his failure to stop the unlawful activity.”

Mens Rea (Intention – consequences)  If D1 and D2 agree to put poison in V’s tea, there is no guarantee that V will drink the tea. Is this conspiracy to murder?  What if they merely intend to make V a bit poorly?  Siracusa (1990) 90 Cr App R 340:  Intention to cause a lesser offence (i.e. a non-fatal offence) does not mean D intended to commit a greater offence.  What if there was a risk of killing V?  In Saskavickas [2004] EWCA Crim 2686 the Court of Appeal held that recklessness would suffice.  This was reversed in Harmer [2005] EWCA Crim 1 and Ali [2005] Crim LR 864. Totally overturned by the House of Lords in Saik [2006] UKHL 18.  What if D1 and D2 agree to kill V, but D1 only intends to cause V grievous bodily harm? D2 goes on to kill V.

 In Barnard (1980) 70 Cr App R 28, it was held that D1 would only be liable for conspiracy to commit the lesser offence that they actually intended to commit  Your intention when you conspire governs your liability

Circumstances:  Section 1(2): “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 one other party to the agreement intend or know that the fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.”  If the substantive crime is one of strict liability or recklessness, conspirators can only be liable if they “intend or know” that the fact or circumstance shall or will exist. Circumstances – Saik [2006] UKHL 18  D1 was convicted of a conspiracy to launder money. He ran a currency exchange and converted a large amount of money from foreign currency. The money was the result of drug trafficking or other criminal activity.  D1 claimed he only suspected that the money was the proceeds of criminal activity.  Held:  Lord Nicholls – “the conspirator must intend or know that this fact or circumstance shall or will exist when the conspiracy is carried into effect.” (para. 20)  Lord Hope – s1(2) was designed to “exclude recklessness as to the consequences.” (para 57). The words ‘shall or will’ in s1(2) “indicate that nothing short of intention or knowledge … will do.” (para 78)  Lady Hale (dissenting in part) – would have broadened out s1(2) to convict D1 if he would have committed the substantive offence had he known that the property was criminal. (para 102) If you take money that you think has come from criminal activity, that is a criminal offence Common Law Conspiracies:  Conspiracy to defraud - Scott v Metropolitan Police Commissioner [1975] AC 919: “it is clearly the law that an agreement between two or more by dishonesty to deprive a person of something which is his or to which he would or might be entitled and a agreement two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.” Wai Yu-tsang [1992] 1 AC 219(PC): There is a general principle that “conspiracies to defraud are not restricted to cases of intention to cause the victim economic loss.” ( per Lord Goff, at p. 277) Consequently, conspiracy to defraud also includes deceiving someone holding a public office to act contrary to their public duty. “it is enough for example 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.” ( per Lord Goff, at p. 280) Dishonesty – recently changed from a two part test to an objective one part test Ghosh [1982] QB 1053 Ivey v Genting Casinos [2017] UKC 67: “the question whether his conduct was honest or dishonest is to be determined by the factfinder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.” (per Lord Hughes, at 74)

Conspiracy to corrupt public morals  Shaw v DPP [1962] AC 220  Viscount Simonds identifies a crime of conspiracy to corrupt public morals.  “In the sphere of criminal law 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.” (p. 267)  Lord Reid dissented, on the basis that there should not be a criminal offence to commit an act that would not be criminal if committed by a person alone. Knuller v DPP [1973] AC 435  Upheld the decision in Shaw.  Rejected the obiter comments of Viscount Simonds in Shaw suggesting that judges have a residual power to create new criminal offences. But conspiracy to corrupt public morals should stay in the interests of certainty.  Lord Simon held that “The words ‘corrupt public morals’ suggest conduct which a jury might find to be destructive of the very fabric of society.” (p. 491)

Reform:  Law Commission’s Proposals (Law Com, No. 318, 2009):  Recommendation 1: “A conspiracy must involve an agreement by two or more persons to engage in the conduct element of an offence, and (where relevant) to bring about any consequence element.”  Recommendation 2: “Each conspirator must be shown to have intended that the conduct element of the offence, and (where relevant) the consequence element (or other consequences) should respectively be engaged in or brought about.”  Law Commission’s Proposals (Law Com, No. 318, 2009):  Recommendation 3: “An alleged conspirator must be shown at the time of the agreement to have been reckless whether a circumstance element of a substantive offence (or other relevant circumstances) would be present at the relevant time, when the substantive element requires no proof of fault, or has a requirement only for proof of negligence.”

 Recommendation 4: “Where a substantive offence has fault requirements not involving mere negligence (or its equivalent), in relation to a fact or circumstance element, an alleged conspirator may be found guilty if shown to have possessed those fault requirements at the time of his or her agreement to commit the offence.”  Consequences of Law Commission’s recommendations 3 and 4:  They would “extend the scope of the offence dramatically.” (Smith and Hogan, 15th ed., p. 474)  Mr Saik would have been liable if he had had reasonable grounds to suspect that the money he was exchanging was “criminal”. Would follow Lady Hale’s decision in Saik.  Conspiracy to commit criminal damage being reckless as to endangering life? (see Criminal Damage Act 1971, s 1(2)(b)).  Other Law Commission Recommendations:  Removal of the spousal exception (recommendation 8)  Extension of the defence of acting reasonably to a charge under ss 44 – 46 of the SCA 2007, found in s50....