The Choice of Conspiracy
No prosecution of a political character should be undertaken without the prior consent of the Cabinet.
Cabinet Instruction, 6 August 1924
It is of paramount importance that I have and must jealously maintain a position of complete independence from political influences while accepting my answerability to Parliament through the Attorney-General. This is…still a factor of considerable importance in maintaining public confidence in the fair and impartial administration of the criminal law. In practice this works because all Attorneys-General, certainly in my experience, respect the need for the Director (of Public Prosecutions) to be free from political influences and because, although by statute law his consent is necessary for certain types of prosecution, he does not in practice seek to exercise any direct control over the decisions and advice of myself and my officers.
Sir Thomas Hetherington, Guardian, 2 June 1980
These two statements illustrate the opposite ends of the spectrum of publicly-expressed wisdom as to the nature of the English prosecution process. The first, an instruction given by the Prime Minister in 1924 after the Campbell fiasco, may be seen as having more to do with practical reality than the second, issued by the present Director of Public Prosecutions in reply to criticism of the role and functions of his office.
The preceding analyses of conspiracy law in the context of Ireland, Chartism, dissidence and the trade union movement have shown the significant role of the judges in creating and developing that law in the light of social and economic conditions. But this responsibility has not been exclusive: Parliament has also played its part in delineating the offence. It is also most important to recognise that in every conspiracy trial, some individual or group of individuals must have made the choice of a conspiracy charge. This selection process results in the presentation to the courts of the opportunity to make law. It may be seen as one method of manipulating the penal system, and as such can be regarded as having equal significance with the judicial role, particularly in the mass of conspiracy cases decided since 1962. The process whereby conspiracy is chosen, involving as it does issues of prosecutorial discretion and professional confidentiality, is extremely difficult to analyse, and this Chapter can only offer glimpses through the fog of secrecy and obscurity which surrounds English prosecutions.
England has no Ministry of Justice or central prosecuting agency. Thus, responsibility for the choice of conspiracy cannot be attributed to any one institution. In fact, no less than thirteen different stages of the prosecution process may be identified, at any of which the crucial decision which eventually leads to new law may be made. First, the private individual may decide to bring conspiracy charges. Second, police constables exercising their discretion in the street may perform a ‘selection’ function. Third, in most police forces a senior officer makes the initial decision to prosecute. Fourth, the matter may be referred to a local authority prosecutions department or to solicitors acting privately. The next stage may be a delegation to counsel. This can be followed by reference to the Indictments Office of the local Crown Court, after which the plea-bargaining process may operate. During the hearing itself, the judge may exercise his power to throw out the charge, or the jury may refuse to convict. In the event of a conviction, appellate procedures come into play: the decisions of the Court of Appeal and the House of Lords are the most visible sources of conspiracy law, and as such are the central concern of most of this book, but they form only a part of the selection process. Parts of this process may be bypassed if the case is referred to the Director of Public Prosecutions by the police – this may lead to involvement by the Attorney-General, the Home Secretary, the Cabinet and the Prime Minister. Despite repeated denials of ‘political’ involvement by these institutions, there is clear evidence that the executive has played a part in a number of 20th century prosecutions.
The Individual
The technical, and in practice mythical, rule is that any private citizen may prosecute any offence. This principle, which ranks in validity with the assertion that England has no political trials, prosecutions or prisoners, is drummed into the ears of law students year after year as a basic element of the English legal system. In reality, the problems of cost, time, technical complexity and non-cooperation by the authorities involved in presenting a criminal prosecution are almost insurmountable by a private individual. There are, of course, exceptional instances of persons with the wealth or energy to carry their own prosecutions to a successful conclusion. The main examples in conspiracy are Hain where the proceedings were partly financed by white South Africans, and the Bristol case where a highly motivated social worker eventually succeeded in obtaining a Crown Court conviction. But for general purposes, individual prosecutions form an insignificant part of the selection process.
The Police
Another great English legal myth is the assertion that there is no national police force, and that therefore all prosecutions are brought by local forces acting independently. The basis for this view is that the police are organised according to local authority areas. Local authorities certainly have a legal responsibility to provide buildings and equipment for their local force and, nominally, to appoint Chief Constables. This appointment is subject to veto by the Home Secretary, who meets 50% of the cost of local forces. This, together with the power to conduct ad hoc inquiries and the direct control of the Metropolitan Police (through the appointment of the Commissioner) means, in effect, central governmental control. The main instrument of this control, so far as is known, is the Home Office Circular – over 100 of which are reputedly sent to all Chief Constables. The Circulars are covered by the Official Secrets Act; Parliament cannot discuss them, nor are they available to the public. A request by the author to the Home Office for an interview on the process whereby conspiracy charges are selected was refused, because:
…we do not get involved in the prosecution process and certainly not at the level of detail which would be of use to you. The Home Office is, in short, too far removed from these day-to-day decisions to contain the kind of expertise you are seeking.
Police Functions
The basic function of the police in the selection process is to gather evidence and to initiate the prosecution. The vast majority of prosecutions are brought by the police. This does not mean that all offences are prosecuted, or that all offenders are arrested: if the criminal law was fully enforced, everyone would be a criminal. From a legal point of view, the duty of the police to prosecute has been adjudicated on: in R v Metropolitan Commissioner of Police, ex Parte Blackburn, where mandamus was sought to compel the police to enforce the law against gaming clubs, Lord Denning ruled that:
It is for the Commissioner of Metropolitan Police, or the Chief Constable, as may be, to decide is any particular whether enquiries should be pursued or whether an arrest should be made or a prosecution brought.
The nature of this discretion has been examined in detail so far as American police forces are concerned, and to a lesser extent in England. The decision whether or not to prosecute has been subject to scrutiny, but the question of choice of offence has not. The significance of the latter decision is well-illustrated by the Thorpe conspiracy case, where, for some unexplained reason conspiracy to intimidate was not charged, and the use of a conspiracy to murder charge led to an acquittal. The police themselves are understandably reluctant to discuss the factors which influence their selection of charges. The author was able to interview a senior officer from a typical mixed urban and rural police force as to his attitudes towards conspiracy charges.
So far as the police are concerned, responsibility for the initial selection of conspiracy charges depends upon internal arrangements within each force, but would not normally lie at a level lower than that of Chief Inspector. Individual constables are advised by one textbook that conspiracy is not an arrestable offence – that it is only triable on indictment and therefore only to be used when the circumstances are in some degree serious. This was confirmed during the interview, when the senior officer stressed that in his view conspiracy was a very serious offence, not taken lightly by him or any of his officers, and unlikely to be used where there was clear evidence of a full offence having been committed unless it would be in the public interest to bring conspiracy charges. He saw the prosecution process as ‘weeding’ the initial charges, to reduce the number of conspiracy trials. At its basic level, this weeding process could operate when a constable was involved in arresting two or more people for a common offence such as burglary. In theory, all such arrests could lead to conspiracy trials: in practice, they do not. In the officer’s force, all prosecutions are sent to the local authority prosecutions department for preparation. In difficult places, or those likely to be sent to the Crown Court, counsel’s opinion would be sought. Acknowledging that conspiracy way very easy to prove, the officer stressed that this did not mean that the police took advantage of the relaxed rules of evidence. In his experience, the most frequent use of conspiracy was in the area of complex fraud offences, where it was the only appropriate charge. Some alleged conspiracies had to be referred to the Director of Public Prosecutions, and most would be. It was clear that important cases with a ‘political’ element were essentially within the realm of the Director’s office: it cannot be seriously alleged that the police have been responsible for the explosion of conspiracy law since 1962.
The Legal Profession
It is extremely difficult to assess the extent of lawyers’ influence in the selection of conspiracy charges, because of the principle of confidentiality which covers all aspects of the ‘advice’ process. The function of the solicitor or barrister acting privately depends largely upon practice in the local police area: some forces have their own solicitors’ departments, while others refer their prosecutions to local firms or to the legal department of the local authority. It is known, for example, that Scotland Yard has had its own Solicitors’ Branch since 1935, and we may assume that individuals within this Branch must have had some involvement at the initial stage of the selection process. Prosecution briefs involving indictable offences are sent to barristers who act in the course of their normal practice, but in general those barristers are all members of a limited number of sets of Chambers and receive the great majority of prosecution briefs. Their advice as to the feasibility of a conspiracy conviction must play an unassessable part in the process.
One aspect of the barrister’s role which, until 1977, was not acknowledged to exist at all, is that of plea-bargaining. This has been defined as ‘the practice whereby the defendant enters a plea of guilty in return for which he will be given some consideration that results in a sentence concession’. It is impossible to estimate the effect which pre-trial dealing has had upon the choice of conspiracy, but we may speculate that it is most likely to be relevant where both conspiracy and substantive offences are alleged. In this situation, a plea of guilty to the full offence may result in the conspiracy count being dropped. Another possibility is that, where a number of separate conspiracies are charged, one or more may be taken out in return for a guilty plea. This would operate to reduce the choice available to the court.
The Director of Public Prosecutions
The office [of DPP] is not under any attack. On the contrary, the present incumbent, Sir Tony Hetherington, was knighted in a recent honours list, although it was not stated whether this was for his services in shelving the Rhodesia sanctions case, in carrying through the ABC official secrets case to its triumphant conclusion, or in preparing so expertly the case against Jeremy Thorpe.
E.P. Thompson, New Society, 22 November 1989
The office of Director of Public Prosecutions was created in 1879 after severe criticism of the practice whereby Chief Constables referred difficult criminal cases direct to the Home Secretary. By 1908 the Director had become, effectively, the government’s solicitor. The constitutional position of the office is, like so many British institutions, difficult to pinpoint. Responsibility for appointment rests with the Home Secretary, but after appointment the Director is responsible to the Attorney-General, and acts under his general guidance. The powers and duties of the Director are laid down by statute: he is obliged to undertake certain categories of prosecution, and must also intervene in any case ‘which appears to him to be of importance or difficulty or which for any other reason requires his intervention’. He is also available, at the request of the police, to advise whether there is sufficient evidence to justify a prosecution.
So far as the conspiracy selection process is concerned, the DPP is obviously involved at the most crucial stage. Under the Criminal Law Act 1977, section 4, no prosecution for conspiracy to commit a summary offence may be commenced without his consent. The section also states that the DPP must be consulted before anyone is charged with conspiring to commit an offence which itself would require his consent. The aim of this provision is to prevent the pre-1977 practice of bringing conspiracy charges as a means of avoiding reference to the DPP, which would be obligatory if certain substantive offences were alleged. The Director also has power to intervene and take over any prosecution ‘if he thinks fit’ – this discretion is left unfettered by the 1977 statute.
According to a recent newspaper article by the present holder of the office, the fundamental role of the DPP is to undertake prosecutions of importance and difficulty, and to advise the police on cases referred by them. In deciding whether to go ahead with a prosecution, three principles are applied: first, the case is examined to ensure that there is no basic defect, for example in jurisdiction; second, the adequacy of the evidence is assessed to establish whether there is a reasonable prospect of conviction, and third, the Director decides whether a prosecution is merited by applying the ‘public interest’ test. The statement stressed that the question ‘what effect would a prosecution have on the fortunes of the government, or any political party for that matter, either nationally or locally’, could never be a proper question when deciding whether or not to prosecute. The appointment of the Director of Public Prosecutions is essentially, and rightly, independent and non-political, says the article.
In one sense, the function of the DPP in the conspiracy selection process is easier to isolate than any of the other twelve. This is because, when the Director becomes responsible for a case, his title is inserted into the citation in place of that of the Queen. Thus we can say with certainty that the DPP was involved in the trials of Shaw, Bhagwan, Knuller, Doot, Kamara and Nock – the bulk of the post-1960 conspiracy expansion. It is also known that in the cases of Pollitt – the 1925 Communist trial, Maycock – the Birmingham conspiracy to trespass, and Thorpe, the Director was involved in at least an advisory capacity. As to the specific factors governing the decision to use conspiracy charges in these cases, one may only surmise: there is no evidence of political pressure, and a request by the author for an interview with the Director as to his attitudes towards conspiracy was not acknowledged.
The Attorney-General
In deciding whether or not to prosecute in a particular case, there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party’s or the government’s political fortunes: that is a consideration which never enters into account.
Hartley Shawcross, Attorney-General 1951
This sort of total official refutation of political influences upon the decision to prosecute is, as we have seen, not limited to the Attorney-General. It is typical of the post-war attitude of judges and law officers. The Attorney-General himself is the closest institution to a Minister of Justice existing in England. He is a member of the political party in power, and is essentially the government’s barrister. Within the Cabinet, he is the Minister responsible for the institution and conduct of criminal proceedings. Yet we are told that he is completely divorced from party political considerations and from any kind of political control. Those who put forward this view must not have taken into account a whole series of cases listed by Edwards as illustrating the fact that
It is in this special area, where the offence is bound up with questions of public security and the interests of the state, in other words where the crime charged falls within that loose category described as political offences, that the position of the Attorney-General vis-à-vis the executive is to be seen in its sharpest form.
In 1881, the prosecution of Johann Most for inciting the murder of European sovereigns was expressly instituted by the Cabinet. Eight years later, the Government was advised by the Attorney-General that the prosecution of Taggart for incitement to murder the Prime Minister was unlikely to succeed: the Home Secretary instructed the Chief Constable of Liverpool not to prosecute.
Again, in 1893, the Director of Public Prosecutions was prevented by the Home Secretary from prosecuting those responsible for serious rioting in Bristol. In 1924, both the Attorney-General and the Director of Public Prosecutions decided to prosecute the editor of the Workers’ Weekly for incitement to mutiny. After the exertion of pressure by Ramsay Macdonald, then Prime Minister, who wished to avoid the publicity which a trial of members of the Communist Party would inevitably bring, the case was abandoned. More recently, in the case of Chandler, the Attorney-General decided to use the charge of conspiring to contravene the Official Secrets Act despite earlier undertakings that the Act would only be used in the context of espionage. When Leila Khaled, a hijacker, was detained in London, instead of facing serious criminal charges, she was released to aid negotiations with Palestinian guerrillas. The conspiracy to intimidate charge brought against the Shrewsbury Three was initiated at a level higher than that of Chief Constable, after two separate police forces had advised against prosecution. But, we are told over and over again, the Law Officers are totally free from any kind of political pressure. Perhaps the truth is more nearly expressed by Wilcox:
It would be idle to pretend that in the past Attorneys have never been placed under political pressure: how far they have succeeded in resisting such pressure is obscure.
If this statement is extended to all thirteen stages of the process whereby conspiracy charges are selected, we may begin to glimpse the truth about the explosion of conspiracy since 1962.
Conclusions (1)
The Rationale of Conspiracy
It is useless to try and conceal the fact that an organised body of men working together can produce results very different from those which can be produced by an individual without assistance. Laws adapted to individuals…require modification if they are to be applied with the effect to large bodies of persons acting in concert. The English law of conspiracy is based upon and justified by this irredeemable truth.
Lord Linley in South Wales Miners Federation v Glamorgan Coal Co. (1905) AC 239
Is there any need for an offence of conspiracy? Why should the law prohibit certain combinations? Why should an agreement be a crime? The answers to these, and similar questions, have been the object of varieties of judicial and academic wisdom since the middle of the 18th century. Justifications for the existence of conspiracy as a criminal offence fall into three broad categories, as follows:
The ‘preventive’ factor
The most recent, and coherent statement of this view was given by the Law Commissioners in their main Report on conspiracy law which led to the introduction of the Criminal Law Bill. Their conclusion was that conspiracy enables the law to intervene at an early stage before a contemplated crime has actually been committed:
…the formation of an intention necessarily precedes the achievement of the intended consequences and, during the period between these two events, there exists a clear social danger which ought, if possible, to be avoided. The law recognises the absurdity which would be entailed if, knowing that someone was on the way to achieving a prohibited event, it could only stand by until the event had happened. The law, therefore, steps in under some circumstances at an earlier stage than completion of the intended consequence and makes certain conduct during that time criminal. This it does by use of the inchoate common law offences of attempt, incitement and conspiracy…conspiracy is, of all the preparatory offences, the one which can occur at the earliest time.
This argument becomes rather less than convincing if it is applied to the reality of the leading conspiracy cases decided since 1960. In Shaw, Bhagwan, Knuller, Doot, Kamara and Scott, conspiracy had no preventive or deterrent effect whatever: the full aim of the conspirators had been accomplished in every case. These decisions clearly illustrate the reality, that most conspiracies are inferred from the acts of the parties: the plotters are arrested after their agreement has been put into effect. In general, conspiracy is used, not as a means of prosecuting ‘gunpowder plot’ type agreements, but because it is easy to prove, and because it is a more serious charge. It may be argued that ‘preventive’ conspiracy was in fact employed in the Thorpe and the ‘Persons Unknown’ cases, but the verdicts of not guilty returned by the jury in both trials can hardly be seen as a vindication of the efficacy of conspiracy.
‘Overall criminality’
Where the substantive charges do not reflect the overall criminality, it may be appropriate to add a conspiracy charge.
Lord Justice James in R v Jones and Others (1974) Cr.App.Rep. 120
This, the view of Lord Justice James, has been interpreted as a justification for the conspiracy convictions in the Shrewsbury Pickets case. It is, essentially, an argument in favour of including conspiracy charges in indictments which also allege substantive offences carried out in pursuance of the agreement, on the basis that in some cases only a ‘global conspiracy count’ can give a faithful picture of the whole affair. In the words of Alex Lyon:
Offences of conspiracy are necessary…it may be necessary to use them against people who have been responsible for planning offences – the ‘Mr Bigs’ of the situation.
The ‘overall criminality’ argument was stated slightly differently by Lord Justice Lawton in dismissing the appeals of the persons convicted in the Angry Brigade trial:
…there may be clear evidence of conspiracy but little evidence that any of the plotters committed criminal acts – in such a case, those who instigate the criminal acts can only be brought to justice by means of a conspiracy charge.
The significance of numbers
The general principle on which the crime of conspiracy is founded is this, that the confederacy of several persons to effect any injurious object creates such a new and additional power to cause injury as requires criminal restraint: although none would be necessary were the same thing proposed, or even attempted to be done, by any person singly.
Thus, the Criminal Law Commission, reporting in 1843, clearly expressed the state’s especial horror of combinations, whether political, industrial, or simply criminal. The 19th century trade union cases contain repeated assertions of the ‘danger in numbers’ argument, and it is in the field of industrial conflict that this justification for the application of conspiracy has most frequently been stressed. According to Erle, ‘the force acquired by combination is incalculably greater than the sum of powers so transferred to the union by each individual’. In Boots v Grundy Mr Justice Phillimore declared that ‘the effectual strength of one is as nothing compared with the force of a combination which may be irresistible’. Lord Brampton expressed a similar view in Quinn v Leathem (the case which decided that it was unlawful to agree to operate a closed shop):
Much consideration of the matter has led me to be convinced that a number of actions and things not in themselves actionable or unlawful if done separately without conspiracy may, with conspiracy, become dangerous and alarming, just as a grain of gunpowder is harmless, but a pound may be highly destructive.
As Sayre and others have pointed out, the ‘pound of gunpowder’ theory is open to serious logical and analytical objections. In the first place, it cannot be said that the act of combining is criminal: it is not an offence to form a social club, a church or a political association. Secondly, a single individual with wealth and influence has greater power available for any enterprise he may wish to effect than perhaps a dozen persons of lesser means. Yet a single person may go beyond more intention and carry out acts of preparation, so as to put himself in a position to be able to carry out his plan, and still stay within the law. This problem was recognised by Viscount Simon who pointed out in the Crofter case that:
…the view that the explanation is to be found in the increasing power of numbers to do damage beyond what one individual can do is open to the obvious answer that this depends on the personality and influence of the individual. In the play, Cyrano de Bergerac’s single voice was more effective to drive the bad actor Montfleury off the stage than the protests of all the rest of the audience to restrain him. The action of a single tyrant may be more potent to inflict suffering on the continent of Europe than a combination of less powerful persons.
Sayre’s survey of the American cases decided around the end of the 19th century discloses a number of statements which accord with the view of Simon. For example, in Lindsay & Co v Montana Federation of Labour, it was said that
There can be found running through our legal literature many remarkable statements that an act perfectly lawful when done by one person becomes by some sort of legerdemain criminal when done by two or more persons acting in concert…but with this doctrine we do not agree. If an individual is clothed with a right when acting alone, he does not lose such right merely by acting with others, each of whom is clothed with the same right. If the act done is lawful, the combination of several persons to commit it does not render it unlawful. In other words, the mere combination of action is not an element which gives character to the act.
Again, Justice Holmes in Vegelahn v Guntner said:
There is a notion which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformulated truth may not be hidden under this proposition. But in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and on principle.
Such logical and analytical objections to the various justifications for the continued existence of conspiracy law are, perhaps, less useful than a functional examination of the law. An ‘analytical’ approach without reference to the social and economic background of the cases may be intellectually satisfying, but it does not really tell us why the state has singled out combinations for especially severe penal treatment. It is submitted that the true rationale of conspiracy is the law’s especial horror of any form of association which can be thought to be opposed to the state. It is clear that the use of conspiracy charges against organised labour in the case of the Shrewsbury Three stemmed from the fact that, in previous trials of striking building workers at Mold Crown Court, substantive charges could not be proved. The most appropriate judicial statements are those which are found in cases with ‘political’ overtones like Mulcahy, where Mr Justice Willes stressed that the numbers of persons involved caused danger to the state, and that it was absurd if one person procuring arms amounted to treason, while conspiring with 1000 persons to enlist did not. Again, Stephen tells us that seditious conspiracy was provided as a serious counterpoise to political combinations. But perhaps the most significant judicial statement of all is that of Mr Justice Fitzgerald in Parnell, cited in full at the head of Chapter Two. Fitzgerald made it clear that, in political trials, conspiracy was used because no other charge would stick: the state reserves its strongest legal weapons for those who pose the greatest threat, that is, whose who combine, associate or organise for radical change.