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Report on Conspiracy and Criminal Law Reform

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Report on Conspiracy and Criminal Law Reform The Law Commission (LAW COM. No. 76) CRIMINAL LAW REPORT ON CONSPIRACY AND CRMNAL LAW aEFORM Laid before Parliament by the Lord High Chancellor pursuant to section 3 (2) of the Law Commissions Act 1965 ~~ ~ ~ ~~ ~~~ Ordered by The House of Commons to be printed 17th March 1976 LONDON HER MAJESTY’S STATIONERY OFFICE 176 €2.45 net The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are- The Honourable Mr. Justice Cooke, Chairman. Mr. Aubrey L. Diamond. Ivlr. Stephen Edell. Mr. Derek Hodgson, Q.C. Mr. Norman S. Marsh, Q.C. The Secretary of the Law Commission is Mr. J. M. Cartwright Sharp and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. 11 CONTENTS Paragraph Page INTRODUCTION A. GENERAL . 1 1 B. SCOPE OF REPORT 7 2 PART I: CONSPIRACY A. THENEED FOR AN OFFENCE OF CONSPIRACY . 1.1 3 B. THEOBJECTIVE OF CONSPIRACY . 1.7 5 1. The present law . 1.7 5 2. Working Party’s consideration and proposals . 1.8 6 3. Difficulty of implementation . 1.10 -8 (a) Conspiracy to defraud . 1.14 10 (b) Offences against the administration ofjustice 1.17 11 C. THEELEMENTS OF CONSPIRACY . 1.20 11 1. Introduction 1.20 11 2. The agreement . 1.21 12 3. Corporations . 1.24 12 4. The mental element . 1.25 13 (a) Introduction . 1.25 13 (b) The mental element in relation to the agreement itself . 1.26 13 (c) The mental element in respect of the objective . 1.27 13 (i) General . 1.27 13 (ii) The present law . 1.31 14 (iii) Recommendations . 1.39 17 (iv) Consequences . 1.42 18 (v) Circumstances . 1.43 18 5. Conspiracy to commit other inchoate offences . 1.44 19 6. Exclusion of certain agreements . 1.45 20 (a) Agreements between husband and wife . 1.46 20 (6) Agreements with persons exempted from criminal liability . 1 SO 21 (i) General . 1.50 21 (ii) Agreements with children . 1.51 22 (iii) Agreements with people who are not liable for prosecution for the sub- stantive offence . 1.52 22 (iv) Agreements with victims . 1.55 23 (v) Conclusion as to exempted persons . 1.56 23 D. PROCEDURE 1.59 24 1. Conviction of one only of two or more con- spirators . 1.59 24 2. Consummated conspiracies . 1.64 27 ... 111 Paragraph Page (a) The present position . 1.64 27 (b) Criticism of the present position . 1.65 27 (c) Consideration by the Working Party . 1.66 28 (d) Consultation on Working Paper . 1.68 29 (e) Conclusion: a new rule of practice . 1.69 29 3. Restrictions on prosecution . 1.72 30 (a) The present law . 1.72 30 (i) Time limits . 1.73 30 (ii) Consent to prosecution . 1.74 31 (b) Conclusion . 1.75 31 4. Withdrawal . 1.76 32 E. CONSPIRACYTO COMMIT A SUMMARYOFFENCE . 1.80 33 !. 1. The present law . 1.80 33 2. Should conspiracy to commit a summary offence be a crime? . 1.82 33 3. Conclusion . 1.85 34 F. PENALTIESFOR CONSPIRACY. 1.88 35 1. The present law . 1.88 35 2. Consideration of the present law . 1.96 38 3. Conclusion as to indictable offences . 1.99 39 4. Conclusion as to summary offences 1.104 40 5. Summary of conclusions as to penalties . 1.106 41 G. CONSPIRACYAND PROTECTIONOF PROPERTY ACT 1875 1.107 41 H. SUMMARYOF CONCLUSIONSAND RECOMMENDATIONS FOR LEGISLATION. 1.112 42 PART Iz: CONSPIRACY TO TRESPASS: OFFENCES OF ENTERING AND REMAINING ON PROPERTY A. INTRODUCTION. 2.1 45 B. PRESENTLAW . 2.5 46 1. Introduction 2.5 46 2. Forcible entry and detainer . 2.7 47 (a) Common law . 2.7 47 (b) Forcible Entry Acts 1381-1623 . 2.8 47 (c) Analysis of present law of forcible entry and detainer 2.12 48 3. Conspiracy to trespass . 2.17 50 4. Failure to comply with an order for possession . 2.22 52 c. THEPROBLEM OF REFORM . 2.25 52 1. Present day conditions . 2.25 52 2. Criticisms of the present law . 2.27 53 (a) The Statutes of Forcible Entry . 2.27 53 (b) Conspiracy to trespass . 2.30 54 iv Paragraph Page 1 1 (c) Failure to comply with an order for I possession . 2.35 55 D. PROPOSALSIN WORKINGPAPER No. 54 . 2.38 56 E. OUTLINEOF RECOMMENDEDOFFENCES . 2.49 59 F. THENEW ENTRY OFFENCE . 2.53 60 1. Introduction 2.53 60 2. Violence . 2.59 62 3. Entering . 2.63 63 4. Premises . 2.64 64 5. Against the will of the person on the premises . 2.65 64 6. Without lawful authority . 2.66 64 7. Penalty . 2.67 64 G. OCCUPATIONOF RESIDENTIALPREMISES . 2.69 65 H. TRESPASSINGWITH AN OFFENSIVE WEAPON . 2.81 67 I. TRESPASSING ON FOREIGNMISSIONS . 2.84 68 J. RESISTINGA SHERIFF OR BAILIFF . 2.89 69 1. General . 2.89 69 2. Detail of offence . 2.92 70 K. SUMMARYOF RECOMMENDATIONS. 2.94 71 PART III: CONSPIRACIES RELATING TO PUBLIC MORALS AND DECENCY A. INTRODUCTION. 3.1 72 B. PRESENTLAW . 3.8 74 1. Conspiracy . 3.8 74 (a) Conspiracy to corrupt public morals . 3.8 74 (b) Conspiracy to outrage public decency . 3.15 76 (c) Criticisms of the conspiracy charges . 3.16 77 (d) Possible generic common law offences independent of conspiracy . 3.21 79 (e) Relationship between conspiracy and in- dividual common law offences . 3.24 80 2. Individual offences at common law . 3.25 80 I (a) Indecent exposure . 3.25 80 (b) Public exhibition of indecent acts and things 3.27 81 (c) Keeping a disorderly house . 3.29 82 (a> Obscene libel . 3.31 83 (e) Conspiracy to debauch an individual . 3.32 83 V Paragraph Page C. CONSPIRACY AND COMMON LAW OFFENCES: THEIR PRESENT FUNCTIONS AND RECOMMENDATIONS FOR THEIR REPLACEMENT 3.33 83 1. Cinematograph exhibitions . 3.34 84 (a) The conspiracy cases . 3.34 84 (b) The Obscene Publications Act 1959 . 3.37 85 (e) Proposals in Working Paper No. 57 and subsequent developments . 3.41 86 (i) Proposals in Working Paper No. 57 . 3.41 86 (ii) Possible changes in licensing arrange- ments by local authorities . 3.43 87 (iii) Application of the common law to cinematograph exhibitions on licensed premises . 3.46 88 (iv) Distribution of films . 3.49 89 (d) The range of problems for consideration . 3.52 90 (i) Criminal liability in respect of the exhibition of films . 3.53 90 (ii) Defences to criminal liability . 3.69 96 (iii) Exceptions to the application of crim- inal sanctions . 3.77 99 (iv) Restrictions on institution of proceed- I ings 3.80 100 (e) Recommendations as to films . 3.86 103 2. Live performances not subject to the provisions of the Theatres Act . 3.87 104 (a) The conspiracy cases . 3.87 104 (b) The Theatres Act 1968 . 3.88 104 , (c) Proposals in Working Paper No. 57 . 3.89 104 (d) Revised recommendations . 3.91 105 3. Performances of plays in private dwellings . 3.97 107 4. Indecent exposure . 3.100 108 (a) The review of the Vagrancy Act 1824 . 3.100 108 (b) Proposals in Working Paper No. 57 . 3.102 109 (e) Further consideration of indecent behaviour I and revised recommendations . 3.103 109 I (i) Exposure by males . 3.103 109 (ii) Exposure by females . 3.106 110 (iii) Other indecent behaviour in public view 3.107 111 5. Conduct for which new criminal sanctions are not required . 3.112 112 (a) Indecent exhibitions at common law , 3.114 112 (b) Indecency with children . 3.117 113 (c) Advertisements by prostitutes . 3.120 114 (i) The present law . 3.120 114 (ii) Response to Working Paper No. 57 . 3.125 116 (iii) Conclusion . 3.127 117 (d) Sale of accoutrements for use in deviant sexual practices . 3.128 117 vi Paragraph Page (e) Soliciting custom for films and live per- formances . 3.131 118 (f) Other conduct subject to conspiracy charges 3.133 119 D. ABOLITIONS,REPEALS AND AMENDMENTS. 3.135 119 1. Abolitions . 3.135 119 (a) Conspiracy to corrupt public morals . 3.136 119 (b) Conspiracy to outrage public decency . 3.137 120 (c) Public exhibition of indecent acts and things 3.138 120 (4 Keeping a disorderly house . 3.139 120 (e) Indecent exposure at common law . 3.140 120 (f) Obscene libel . 3.141 120 (g) Conspiracy to debauch an individual . 3.142 121 (h) Conclusion . 3.143 121 2. Repeals and amendments . 3.144 121 E. SUMMARYOF RECOMMENDATIONS. 3.149 123 PART N: CONSPIRACIES TO EFFECT A PUBLIC MISCHIEF A. INTRODUCTION. 4.1 125 B. THECONSEQUENCES OF Withers v. D.P.P. 4.4 126 C. POSSIBLEDEFECTS IN THE PRESENT LAW . 4.8 127 1. Obtaining information by deception. 4.9 127 2. Causing alarm and false reports . 4.13 129 3. Other cases . 4.20 132 D. CONCLUSION . 4.21 132 PART V: CONSPIRACIES TO COhXiWT A CIVIL WRONG A. INTRODUCTION. 5.1 132 B. CONSPIRACYTO COMMIT A TORT . 5.2 133 1. Conspiracies to commit trespass to land, goods or person . 5.5 133 2. Conspiracies involving commission of a private nuisance . 5.8 134 3. Conspiracies to commit torts involving fraud . 5.9 134 4. Conspiracies involving defamation of character . 5.10 135 5. Conspiracies effected by other tortious means . 5.15 136 6. Conclusion . 5.17 137 C. CONSPIRACYTO INJURE 5.18 137 1. The extent of crimiilal liability . 5.18 137 2. Conclusion . 5.23 140 vii I Paragraph Page PART VI: CONTEMPT OF STATUTE A.
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