In November 1974 21 people were killed in the Birmingham bomb outrages. Following these murders, the Prevention of Terrorism (Temporary Provisions) Act was swiftly passed through Parliament. One aspect of this statute can be related directly to the situation in Ireland during the 1880s. The 1974 Statute in effect created a new statutory conspiracy by introducing the concept of ‘proscribed organisations’, defined as including associations or combinations of persons which had been declared unlawful by the Secretary of State. The only organisation to have been given this treatment is the Irish Republican Army. The situation is thus similar to that of the nineteenth-century when Fenianism itself was in illegal conspiracy at common law. Further, he have seen that bomb outrages in English cities led to the introduction of one of the first statutory conspiracies – to cause explosions – in the Explosive Substances Act 1883. Irish Republicanism continued to affect the development of English conspiracy law and English statutes.
The case of the Luton Three, documented by Robertson in Reluctant Judas, illustrates some of the more unsavoury aspects of the interrelation between conspiracy law and Northern Ireland. In the Law Reports, the case appears as R v Mealey and Sheridan. The appellants and another Irishman, Campbell, all members of Luton Sinn Fein and known as the Luton Three, had been convicted of conspiracy to rob with the object of furthering Irish Republican interests and sentenced to ten years’ imprisonment. They appealed on the ground that Kenneth Lennon, who had associated with them and helped to plan the robbery, was a paid police spy. The Court of Appeal held that this evidence was not such as to affect the outcome of the trial: the police were entitled to use infiltration as a weapon and common sense indicated that anyone who infiltrated a suspect society must show a certain enthusiasm for its activities if he were to maintain his cover. Even if Lennon had actually instigated the plot, this would not have helped Mealey and Sheridan because, in the words of Lord Chief Justice Widgery:
…it is our judgement quite clearly established that the so-called defence of entrapment, which finds some place in the law of the United States of America, finds on place in our law here…if a crime is brought about by the activities of someone who can be described as an agent provocateur, although they may be an important matter in regard to sentence, it does not affect the question of guilty or not guilty.
The second case involving Kenneth Lennon was that of O’Brien. He, Lennon, and persons unknown had been charged with conspiracy to effect the escape of Mealey and Sheridan from Winson Green Prison, Birmingham. The evidence against O’Brien was that he had been seen taking a photograph of the prison and that when his house was searched, the police found ‘a variety of literature of a kind which might be associated with those who have extremist views on the Irish problem’. Lennon was acquitted: O’Brien was convicted ad received a three-year sentence. In April 1974, while O’Brien was waiting for his appeal to be heard, Lennon made a statement to the National Council for Civil Liberties, alleging that the Special Branch had blackmailed him into becoming an agent provocateur, and that the O’Brien trial had been rigged to ensure his (Lennon’s) acquittal. Two days later, Lennon was shot dead by persons unknown. O’Brien’s appeal was allowed on the technical ground that Lennon’s acquittal on the conspiracy charge removed the only named party to the conspiracy, and there was insufficient evidence to justify O’Brien’s conviction. The Lord Chief Justice’s views on conspiracy, very different from those which he expressed in Mealey and Sheridan, were as follows:
…we have come to the conclusion that the evidence…was not enough to entitle the jury to draw the inference that not only had O’Brien made a plan himself, not only perhaps had he discussed this plan with others, but that he had agreed with others that the plan should be carried out if it proved practicable to do it. It is, we think, pertinent to point out that, although the crime of conspiracy is an extremely important crime in the English judicial system, care must be taken to see that it does not extend beyond its legitimate and fair objectives; and whereas in the present case the overt act of photographing the prison is not in itself a crime at all, the Courts must be astute to see that it is not turned into the crime of conspiracy by the inference of an agreement to do it with an unlawful purpose unless that agreement is properly established in accordance with the general principles upon which this court acts.