The Law Commission Consultation Paper No 183 CONSPIRACY AND ATTEMPTS A Consultation Paper 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 Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Mr Stuart Bridge Mr David Hertzell Professor Jeremy Horder Kenneth Parker QC Professor Martin Partington CBE is Special Consultant to the Law Commission responsible for housing law reform. The Chief Executive of the Law Commission is Steve Humphreys and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This consultation paper, completed on 17 September 2007, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on its proposals before 31 January 2008. Comments may be sent either – By post to: David Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1212 Fax: 020-7453-1297 By email to: [email protected] It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. We will treat all responses as public documents in accordance with the Freedom of Information Act and we will include a list of all respondents' names in any final report we publish. Those who wish to submit a confidential response should contact the Commission before sending the response. We will disregard automatic confidentiality disclaimers generated by an IT system. This consultation paper is available free of charge on our website at: http://www.lawcom.gov.uk/conspiracy.htm THE LAW COMMISSION CONSPIRACY AND ATTEMPTS CONTENTS Paragraph Page PART 1: CONSPIRACY AND ATTEMPT: THE NEED FOR LAW 1.1 1 REFORM Introduction 1.1 1 Setting this paper in context 1.1 1 General considerations 1.2 1 Law Com No 300 1.8 3 Previous recommendations 1.8 3 Part 2 of the Serious Crime Bill 1.12 4 A key problem in the law of conspiracy 1.18 5 The definition of statutory conspiracy 1.18 5 The problem raised by the decision in Saik 1.20 6 The ambiguous requirement that criminality ‘necessarily’ 1.25 8 be involved Summary of our provisional proposals for the fault element in 1.31 9 conspiracy Two alternatives 1.34 10 Other problems with the law of conspiracy 1.38 10 What must be intended by conspirators 1.38 10 Defences to and exemptions from liability as a conspirator 1.41 11 Spousal immunity 1.42 11 Co-conspirator is a child under the age of criminal 1.45 12 responsibility Co-conspirator is a victim of an intended offence 1.49 13 Crime prevention and acting reasonably 1.51 13 Procedural and jurisdictional issues 1.63 16 Consent to prosecute conspiracy 1.63 16 Indictments alleging conspiracy 1.66 17 Extra-territorial application 1.69 17 A key problem in the law of attempt 1.70 17 Our provisional proposal: the offence of ‘attempt’ 1.77 19 Our provisional proposal: the offence of ‘criminal preparation’ 1.78 19 Other problems with the law of attempt 1.79 19 The fault element in attempt 1.79 19 The respective roles of judge and jury 1.83 20 Omissions 1.85 20 Summary offences 1.87 20 iii Paragraph Page An issue relevant to both conspiracy and attempt 1.90 21 “Double inchoate” liability 1.90 21 Attempting (or criminally preparing) to conspire 1.93 21 Structure of the paper 1.100 23 PART 2: THE RATIONALE OF THE CONSPIRACY OFFENCE 2.1 25 Is ‘pure’ conspiracy effectively redundant as an offence? 2.2 25 The arguments for conspiracy being an unnecessary offence 2.2 25 Counter-arguments 2.4 26 Conspirators, accomplices and the changing nature of 2.4 26 police intervention The special threat posed by two or more people deciding 2.11 28 to commit an offence Procedural and evidential considerations 2.20 31 The increasing prevalence of conspiracy-related offences 2.22 32 Conclusion 2.33 35 PART 3: THE COMMON LAW OF CONSPIRACY AND THE 3.1 36 ROLE OF THE LAW COMMISSION IN THE DEVELOPMENT OF STATUTORY CONSPIRACY Introduction 3.1 36 Early development of the law of conspiracy 3.2 36 The fault element at common law 3.4 36 The common law requirement that the parties must intend 3.4 36 the agreement to be carried out The common law requirement of knowledge as to 3.9 37 circumstances Recommendations of the Law Commission leading to the Criminal 3.14 39 Law Act 1977 Recommendations as to fault 3.15 39 Fault as to circumstance and consequences 3.17 39 Law Com No 300 3.20 40 Other recommendations 3.22 40 The Criminal Law Act 1977 3.26 41 The Draft Criminal Code 1989 3.27 41 Fault as to the circumstance element of the substantive 3.31 43 offence Procedural 3.32 43 Exemptions from liability 3.33 43 Spousal immunity 3.34 43 Conspiracy with a child under the age of criminal 3.35 44 responsibility Conspiracy with intended victim 3.36 44 Assisting or encouraging conspiracy 3.37 44 iv Paragraph Page Conspiracy to incite 3.38 44 PART 4: THE FAULT ELEMENT FOR CONSPIRACY 4.1 45 A summary of our provisional proposals 4.1 45 A preliminary issue: the distinction between the conduct, 4.6 46 consequence and circumstance element Proposal 1: An agreement to engage in criminal conduct and to 4.16 48 bring about criminal consequences Proposal 2: The need for each conspirator to intend that the 4.22 49 conduct and consequence element (if any) occur The decision in Anderson 4.26 50 An alternative approach to the problem addressed in 4.31 52 Anderson The meaning of intention under section 1(1) of the 1977 Act 4.34 52 Proposal 3: The fault element in relation to circumstances 4.42 54 A brief summary of the existing law and its flaws 4.42 54 Illustrating proposal 3 in relation to particular crimes 4.50 56 Criminal damage 4.51 56 Handling stolen goods 4.53 57 Comparing the two examples above 4.54 57 The modern law of rape: a test case for our proposal 4.57 58 More detailed analysis of the problems with the existing law 4.64 60 Sakavickas 4.65 60 Saik 4.70 62 Lord Nicholls 4.77 63 Lord Hope (with whom Lord Brown agreed) 4.85 64 Problems with the current law as stated in Saik 4.91 66 ‘Wilful blindness’ and knowledge in American and 4.94 66 English courts American courts 4.94 66 English courts 4.100 68 Is section 1(2) too narrow? 4.107 69 Our proposal 4.113 71 Definition of recklessness 4.114 71 First requirement 4.116 72 Second requirement 4.119 73 Comparison with the approach in the Serious Crime Bill 4.124 74 Proposal 4: Fault as to the circumstance element higher than 4.133 77 recklessness Question 1: Should fault in relation to the circumstance element be 4.136 77 narrower than recklessness? Question 2: Should the circumstance fault element be the same for 4.145 79 conspiracy as for the substantive offence? v Paragraph Page The analogy with the fault element in attempts to commit 4.150 80 crimes PART 5: CONDITIONAL INTENT IN CONSPIRACIES 5.1 84 Introduction 5.1 84 Conditional intent in conspiracy 5.4 84 The basic principle: a conditional intent satisfies the fault 5.4 84 element Applying the basic principle to attempt cases 5.8 86 Conditions said to undermine the existence of a 5.13 87 conspiracy Must conspirators agree on a course of conduct that ‘necessarily’ amounts to or involves the commission of a 5.18 88 criminal offence? Agreements to engage in conduct ‘even if’ it involves 5.23 90 committing a crime PART 6: CHARGING CONSPIRACIES OF CONDITIONAL 6.1 92 INTENT OR CONSPIRACIES WHERE DIFFERENT SUBSTANTIVE OFFENCES ARE CONTEMPLATED Introduction 6.1 92 Summary of conclusions 6.3 92 The former indictment rules 6.4 93 The new indictment rules 6.7 93 Reasons for the rule against duplicity 6.12 95 The reason that we consider that a single count of conspiracy to 6.21 97 commit more than one offence did not breach the former rule against duplicity Roberts 6.25 99 The decision of the Court of Appeal 6.25 99 Comments on Roberts 6.32 100 The ‘either/or’ conspiracy 6.34 101 Attorney General’s Reference (No 4 of 2003) 6.35 102 The facts 6.35 102 Suchedina 6.39 103 Circumstances In which the compendious count is justified 6.44 104 Conclusion 6.49 104 Our proposal 6.56 106 Further procedural issues 6.57 106 The requirement of consent from the Director of Public 6.58 106 Prosecutions for the prosecution of conspiracy to commit a summary offence vi Paragraph Page Background: a different approach to conspiracy to commit 6.58 106 summary offence Four options for conspiracy to commit a summary offence 6.61 107 Should conspiracy to commit a summary offence itself become a 6.68 108 summary offence? PART 7: CONSPIRACY AND DOUBLE INCHOATE LIABILITY 7.1 109 Introduction 7.1 109 Assisting and encouraging a conspiracy 7.22 112 Introduction 7.22 112 The current law 7.23 112 Our previous proposals and recommendations 7.24 112 Working Paper No 50 7.24 112 Law Com No 76 7.25 112 Law Com No 177 7.26 113 Law Com No 300 7.27 113 Policy concerns 7.29 114 Arguments against an offence of assisting and 7.29 114 encouraging a conspiracy Arguments in favour of an offence of assisting and 7.31 115 encouraging a conspiracy Attempting (or criminal preparing) conspiracy 7.36 116 The current law 7.37 116 Our previous proposals and recommendations 7.38 117 Working Paper No 50 7.38 117 Law Com No 76 7.39 117 Law Com No 177 7.40 117 Policy concerns 7.41 118 Arguments against an offence of attempting (or criminally 7.41 118 preparing) to conspire Arguments in favour of providing for an offence of 7.46 118 attempting (or criminally preparing) to conspire Our questions 7.57 122 PART 8: DEFENCES 8.1 123