Conspiracy law, class and society Part 14
Updated: Jan 10, 2021
On Second Reading, my hon. friends and I thought this was a diabolically awful Bill and we voted against it. Since then some improvements have been made and it is now no more than a devilishly awful one (Ian Mikardo, during the third reading of the Criminal Law Bill).
19th Century Reforms
Like the other ‘inchoate’, or preliminary offences of attempt and incitement, conspiracy escaped the Benthamite-inspired reforms of criminal law during the 19th century. In 1861, the work of the reformers culminated in the passing of seven major consolidating statutes. Liberal jurists had argued for the separation of the judiciary from the legislature, and despite strong opposition from the judges themselves, the 1861 legislation effectively limited the judicial role to that of interpretation so far as most substantive offences were concerned. The statutes did not expressly repeal offences which remained uncodified and conspiracy, as one of those offences, remained in the hands of the judges, almost entirely outside Parliamentary control. We have seen how the judges were by no means slow to grasp the opportunity to develop conspiracy in the areas of Irish, ‘political’, and trade union trials.
Conspiracy did not entirely escape the reforms: Section 4 of the Offences against the Person Act 1861 provided that:
All persons who shall conspire, confederate and agree to murder any person, whether he be a subject f Her Majesty or not, and whether he be within the Queen’s dominions or not, shall be guilty of a misdemeanour and shall be liable to imprisonment for any term not more than ten years.
This rule was a direct result of the acquittal of Bernard on a charge of conspiring to murder Napoleon III after a trial in which doubts were expressed as to whether an alien could be charged in England with conspiracy to commit a crime abroad. It resulted in the absurdity that, until 1977, a plot to damage property, to trespass or to corrupt the public morals could be punished with a 30 or 40-year sentence (since the judges had unlimited sentencing power in common law conspiracy trials) whereas an agreement to murder was subject to a ten-year maximum.
Other 19th century statutes of marginal relevance to conspiracy were the Conspiracy and Protection of Property Act 1875, passed as a result of trade union agitation, which limited liability in the area of trade disputes, and the Explosive Substances Act 1883, which replaced seditious conspiracy with a statutory charge of conspiring to cause explosions.
The Law Commission
The next major reforms of criminal law came in the 1960s, after Harold Wilson’s Labour government announced its intention to codify the whole of the English Legal System. The Law Commission, set up to achieve this aim, published seven Reports on conspiracy between 1973 and 1977. The first recommended that conspiracy should be limited to criminal offences. The next proposed the creation of new criminal trespass offences to replace Hailsham’s common law conspiracy to trespass. The fourth stated the Commissioners’ view that conspiracy to corrupt public morals and to outrage public decency should be abolished. The final, major Report, which included a draft Bill, confirmed the earlier view that only agreements to commit offences should be punishable as conspiracies, and urged that this should be implemented as soon as possible. With regard to punishments, the Commissioners, who comprised a judge, two barristers, a solicitor and a law professor, advised that judicial sentencing power should be curbed, and set out maximum penalties depending upon the seriousness of the crime agreed to be committed.
In two areas, no change was proposed: first, it was stated that since English law contains no general ‘fraud’ offence, conspiracy to defraud should be retained. Second, the Commission was silent on the question of evidence in conspiracy trials. The Commissioners might respond to this with the reply that their concern was solely with substantive matters, and that the law of evidence was outside the scope of their work. One might respond that, to the person convicted of conspiracy, the distinction between substance and evidence may appear more that a little academic.
There is no doubt that prosecuting counsel in the past have abused the whole business of conspiracy and have put it in when substantive offences were clearly available on the evidence and there was no reason to put in a conspiracy charge, but they have put it in because they can get in hearsay evidence which otherwise would not be admissible and because it tends to magnify the possibility of punishment and to get the case into the higher courts at a much more serious level.
A major criticism of conspiracy law is that, when the charge is brought, the rules of the game change in favour of the prosecution. Over the centuries a body of special rules of evidence has been built up, which are peculiar to conspiracy trials. The Irish and Chartist cases demonstrate the extent to which political trials, heard at a time when judges were prepared to admit that trials could be political, have contributed a special body of evidential and procedural rules to the present system. In Pritt’s view:
The proof of conspiracy is made easier by the provision of the law of evidence (again, common law) that so long as there is any evidence, however tenuous, from which the agreement might be inferred, the acts and words of any of the alleged conspirators, alleged to have been done or spoken in pursuance of the conspiracy, are admissible in evidence against all the others, on the footing that they are all agents of one another (although, at the time when the evidence is admitted, the jury has not found that there was an agreement – and so some agency – as alleged).
The rule against hearsay, described by Glanville Williams as ‘one of the best known rules of law as well as one of its most intricate professional mysteries’, is all but abandoned in conspiracy trials. An early example is Shellard (the Monmouthshire Chartists) where evidence of someone other than the accused having told people to go to a meeting was admitted against the accused on the basis that all the acts in question were part of one transaction. Some academics have argued that this is not really a special exception to the rule, but forms an example of the doctrines of agency. This attempt to rationalise the relaxation of evidential requirements in conspiracy trials may be traced to 19th century cases like Duffield where Mr Justice Erle was keen to introduce the concept of agency as a means of admitting hearsay evidence against trade unionists.
Proof of Agreement
It is extremely difficult for the prosecution to prove conspiracy according to the normal rules of evidence, because direct evidence of an agreement is rarely available. This has led to the development of the doctrine of inference. The judges have repeatedly declared that, so far as proof goes, conspiracy is generally to be inferred from the acts of the parties carried out in pursuance of their agreement. Prosecution strategy is generally aimed at establishing that the accused acted in a certain way and in asserting that such behaviour could only have arisen as the result of a plan of action. In this way, proof of conspiracy is actually easier than proof of other offences. One example is Hunt, where Mr Justice Bayley directed the jury that if
…the circumstances were such that they could not have occurred except in pursuance of a previous plan between the parties, then that implies that there must have been such a plan, and would warrant the conclusion of conspiracy. In this way, standards of proof have been relaxed to such an extent that is has been said that a conspiracy is easier to prove than a normal commercial contract – in the words of prosecuting counsel at the trial of the Shrewsbury Three: ‘…it could be done with a nod or a wink.’
The Law Commission was silent on this point. In fact, the only comment relevant to rules of evidence was the view stated in its 76th report that the reason for retaining the offence of conspiracy is to enable the criminal law to intervene at an early stage before a contemplated crime has actually been committed. The Commissioners felt that the necessity for proof of an agreement was a sufficient safeguard against the danger of punishing conduct too far removed from an actual crime. They did not state an opinion as to the methods of establishing this proof. Their statements take no account of the fact that most conspiracy charges, far from enabling the law to intervene at an early stage and nip criminal organisations in the bud, are normally preferred after the agreed offence has been committed. One may cite, as leading examples, Shaw (conspiracy to corrupt public morals after publication of Ladies’ Directory); Kamara (conspiracy to trespass after occupation of Sierra Leone High Commission) and the Angry Brigade (conspiracy to cause explosions after series of explosions). One of the great myths of English law, comparable with the myths of judicial neutrality, the separation of powers and an unarmed police force, is the fictional assertion that conspiracy has an essentially ‘preventive’ nature. As a general rule, and certainly in the great majority of cases decided since 1960, conspiracy counts have been tacked on by the prosecution because the relaxation of rules of evidence makes a conviction more likely and increases judicial sentencing power. As the Haldane Society pointed out, no truly comprehensive reform of conspiracy law is possible without a thorough examination of the rules of evidence associated with it.
The Criminal Law Bill
This Bill entered Parliament in its draft form as set out by the Law Commission. It was advertised to the public as a far-reaching measure for the reform of conspiracy law, to increase the penalties for football hooliganism, and to protect holidaymakers whose homes might be taken over by squatters. In reality, it contained a marginal change in conspiracy, measures to criminalise trespass and an onslaught on the right to trial by jury on purely financial grounds.
The paltry reforms offered, which amount to no more than a correction of the most crass of judicial innovations in this field, will probably be offered as a liberal balance to the sterner medicine of other sections.
Even these paltry reforms received such a Parliamentary mauling that the final result totally refuted the views of those who thought that analyses of the history of conspiracy would become irrelevant, a mere pre-history, when the Bill became law.
First, the government decided not to abolish conspiracy to corrupt public morals, pending an examination of the whole of the law relating to obscenity by a Departmental Committee. This decision was generally criticised during the Bill’s second reading, and in the Upper House Lord Gardiner, having described the offence as ‘a great blot on our legal system’, stressed that the Bill thus excluded one of the first and most definite recommendations of the Law Commission.
Second, the draft Bill had included a clause defining the mens reas of conspiracy – the element of intention which the prosecution would have to prove. This was taken out during the Committee Stage in the Lords, when a group of senior judges who had themselves been directly involved in making the law during the 1960s-1970s excluded the clause on the grounds of complexity and obscurity. In the words of Lord Morris of Borth-y-Gest:
If you wanted to set a question to judges, Circuit Judges, recorders, magistrates, and justices’ clerks, if you wanted to test their skill, you might put that subsection before them and say to them ‘What does it mean?’ I venture to suggest that most of them would be puzzled. I can only feel that here is being imposed upon the legal profession and the public moments of mental agony, torment and anguish in trying to understand what these words mean.
Lord Edmund Davies gave the clause a similar description:
…so obscure and difficult as to be really a trap to the tired and overworked judge, towards the end of the day, who is called upon to direct a jury.
The actual words complained of were as follows: ‘…for a person to be guilty of conspiracy…both he and the other persons with whom he agrees must intend to bring about any consequence which is an element of that offence…’ Whilst not the clearest of English, this clause is certainly less obscure than much current legislation. Taxation statutes, in particular, are advantageously meaningless to those wealthy enough to employ specialist advisors. These views are notable because, in the first place, they take no account of the comprehension of the law by the accused: this follows the tradition of the English system that the person actually charged with a crime is not the central figure at the trial, and is only allowed to speak in very limited circumstances. Second, the composition of the Lords Committee deserves closer analysis. Morris (Lord Morris of Borth-y-Gest) had sat in judgement in both of the cases which established the existence of conspiracy to corrupt public morals, in with Simon (Viscount Simon of Glairsdale) had also played a part. Viscount Dilhorne, a Conservative MP from 1943 until 1962, had, during the 1970s, abolished public mischief, redefined conspiracy to defraud, and created the rule that English courts have jurisdiction if the evidence shows that a conspiracy, wherever formed, is still in existence when the accused come to England.
The other members of the Committee were Viscount Hailsham, the creator of conspiracy to trespass, Lord Elwyn-Jones, and Lord Edmund-Davies. All sat in judgement on the efforts of the Law Commission. When English judges are called upon to apply unpopular, repressive or patently absurd rules of law, it is not uncommon for them to assert that, if the law needs changing, it must be referred to Parliament. In the case of conspiracy, this meant that it was referred back to themselves as members of the Upper House. If this is a necessary consequence of the present composition of a non-elected upper chamber, then the arguments for drastic reforms are obvious, if the appearing of a democratic Parliamentary system is to be maintained.