Criminal Litigation

CONSPIRACY | THE NATURE OF A CRIME – THE COMMON LAW OF ENGLAND – PART-1 | SOLİCİTORS QALİFYİNG EXAMİNATİON | SQE-1 & SQE-2 SAMPLE MATERİALS

CONSPIRACY is ail agreement by two or more persons to cany out an unlawful common purpose or to carry out a lawful common purpose by unlawful means. It is a misdemeanour at common law, punishable with fine and
imprisonment to any extent; and also with hard labour in the case of ” any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert or defeat the course of public justice.” ^ The offence is not triable at Quarter Sessions, imless the conspiracy is to commit a crime which would be triable at Quarter Sessions if committed by one person.

It is a statutory misdemeanour,^ punishable with ten years’ penal servitude, to conspire to murder, or to endeavour
to persuade or propose to any one to murder, any person, whether he be a subject of His Majesty or not, and whether he be within the King’s dominions or not. Apparently no other conspiracy here to commit a crime abroad is triable in this country ; still less is a conspiracy abroad to commit a crime here. The crime consists in the bare consent and agreement of the parties.’* It is not necessary that any of them should do any act in pursuance of their agreement. This is no breach of the rule laid down by Lord Mansfield, C. J., in B. v.
Scofield’i’ that a bare intent, however criminal, is not punishable by our law ; for the agrelBment itself is an act, and will
1 14 & 15 Vict. c. 100, s. 29.
2 Quarter Sessions Act, 18i2 (5 & 6 Vict. c. 38), s. 1.
3 24 & 25 Vict. c. 100, s. 4. An article in a newspaper, exulting over the
assassination of the Emperor of Russia and commendirifc it as an example, was
held to be an enoouraj^ement or endeavour to persuade to umrder within this section, although it was not addressed to any one in pajticular : R. v. Most
(1881), 7 Q. B. D. 244.
* See the judgments of Tindal, C. J., in O’Connell v. R. (1844), 11 CI. & F. at
p. 233, and of Lord Chelmsford in Mulcahy v. R. (1868), L. R. 3 H. L. at p. 328.
•^ (1784), Cald. S. C. at p. 403.
256 CONSPIRACY. remain a crime, even thougli all the conspirators shonld
afterwards repent of their pnrpose and take no further 8tej> in pursuance of it. ” The overt acts which follow a con- spiracy form of themselves no part of the conspiracy : they
are only things done to carry out the illicit agreement already formed.” ^ Yet they are often the only evidence of that agreement, and are usually set out in the indictment, although
this is not essential.- Conspiracy consists ” in the agreement of two or more to do an unlawful
act or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into
effect, the very plot is an act in itself and the act of each of the parties, promise against promise, act against act. . . . The number and the compact give weight and cause danger.” ^ If in carrying into effect a criminal conspiracy the conspirators inflict loss or damage on a private individual, he will have a private action for the particular damage which he has thus separately suffered. “The
damage sustained by the plaintiff is the ground of the action, and not the conspiracy. ” ^ And the damage must be either the natural and necessary consequence of the defendants’ acts, or the defendants must have contemplated or intended that such damage should fall on the plaintiff ; otherwise
it will be too remote. The crime is complete as soon as the unlawful agree- ment has been made : but to sustain a civil action there must be a
conspiracy, a wrongful act done in pursuance of it without sufficient justifi- cation, and damage to the plaintiff. This class of civil actioii^ founded upon criminal conspiracies is discussed in Book III., Chap. XV.
If two or more agree to do a seditious act or to publish seditious words, each is guilty of a seditious conspiracy. ^
If one man urges another to join with him in any criminal
act and the other refuses to do so, he is guilty of the mis- demeanour of inciting or soliciting the other to commit that crime; if the other agrees to join with him, both are guilty
of a conspiracy. If either of them subsequently attempts to carry out their common criminal purpose, each is liable for anything done by the other in furtherance of that purpose
;
and everything said or done by either conspirator is, after
1 Per Lord Brampton in Quinn v. Leathern, [1901] A. C. at p. 530.
– See the liidictnieiits in tlie Aupendix, Nos. (1 and 7. 3 Per cur. in Mulcahy v. R. (1868), L. R. 3 H. L. at p. 317, cited with approval by Lord Brampton in Qiunn v. Leathem, [1901j A. C. at p. 529, and by the Court
in R. V. BraUsford, [1905] 2 K. B. at p. 746.
* Shinner v. Gvnto’i. (ICO;)). 1 Wms. Saund. 229 b. n. 4: Buller’s Nisi Prius, 14 ; Barber v. Lesiter (1860), 29 L. J. C. P. 161, 165.
5 See ante. p. 154.
THE AGREEMENT. 257
due proof of the conspiracy, evidence against the other. If the projected crime be committed, the prisoners may be
indicted for that crime or for the conspiracy, or for both. This is so, even where the crime projected is a felony ; for though it was an ancient rule of the common law that in such
a case the conspiracy, being only a misdemeanour, merged
in the felony, it has since been provided by statute that a defendant indicted for a misdemeanour is not entitled to be
acquitted on the ground that the evidence proved that he had
committed a felony.^ In every conspiracy two persons at least must be concerned. And such two persons must not be husband and wife; for here the old common law rule still holds good that husband
and wife are one person in law. If A. and B. are jointly indicted for a conspiracy and A. is acquitted, B. must be
acquitted too, however criminal his conduct may have been. This is so, even where he has pleaded guilty to the charge.-
But a man may be indicted alone for conspiring “with other persons to the jurors unknown,” or with persons who have
since died, or with a person who is specially protected by
statute from any penal consequences of the act which they
had conspired to do.^ A criminal conspiracy, then, is an agreement to carry out an unlawful common purpose or to carry out a lawful common
piu’pose in an unlawful manner. But it is necessary to explain the meaning of the Avord “unlawful” in this definition; for the word is often loosely used.
Clearly, every conspiracy to commit a crime is criminal. So
are most conspiracies to commit a tort. But not every conspiracy to commit a tort is criminal. Thus in B. v. Turner and others,”^ it was held that a combination of eight persons
to commit a merely civil trespass in the bond fide assertion of an alleged common right was not indictable. But tlie phrase
1 li & 15 Vict. c. 100, s. 12.
2 R. V. Plummer, [1902] 2 K. B. 339.
3 R. V. Duguid (1906), 91 L. T. 887. And see R. v. Perrin (190S), 72 J. P. U4.
* (1811), 13 East, 228 ; this decision was adversely criticised by Lord Campbell
in R. V. Rowlands (1851), 17 Q. B. 671 ; but the latter case was in its turn doubted
in Mogul Steamship Co. v. McGregor (1889), 23 Q. B. D. 598 ; and in Allen v. Flood. [1898] A. C. 1. B.C.L. IT
258 • CONSPIRACY. “unlawful common purpose” not only covers all crimes and
most torts ; it also iucludes some acts, which are neither torts nor crimes, but are nevertheless in some way fraudulent or
corrupt, flagrantly immoral or obviously injurious to the
public interest/ It is impossible to define these acts with
greater precision. But if two or more persons agree to do
any of these acts, an indictment will lie against them for conspiracy ; for such an agreement is regarded as a danger to the State. Thus, it is ail indictable conspiracy for A. and B. to agree together

to induce a woman C. to become a common prostitute, whether she be chaste or not, and whether the indncement succeed or not ; ^ to falsely accuse D. of a crime ; ^ to defraud the public by holding a mock auction’* (but for them to agree together not to bid against each other at a real auction is not indictable ”) ; to raise the price of the funds by false rumours ;
‘^ to ” pull a horse ” and prevent it winning a race
;
”’ to defraud their partner, by means of false accounts, the fraud not being in itself criminal at the time when it was committed ; ^ to procure from the Foreign Office by false representations a passport
for a foreigner to enable him to travel in Russia as a British subject and under a British name ; for such an act would tend to stir up ill-feeling between this country and Russia, and so to produce a public mischief. *’ In the last case Lord Alverstoue, C. J., in delivering the judgment of the
Court, said : “It cannot, of course, be maintained that every fraud and
cheat constitutes an offence against the criminal law, but the distinction between acts which are merely improper or immoral and those which tend
to produce a public mischief has long been recognised. . . . Whatever
attempts may have been made from time to time to strain the law of conspiracy or to bring within its purview combinations to perform acts, to which no objection can be taken when done by a single individual,^” no
question of the kind arises in this case.” If “the issue of a public document by a public department of State is obtained by a false repre- sentation for an improper purpose, i.e., for use by a different person passing
1 JL V. Whitaker, [1914] 3 K. B. 1283.
2 R. V. Howell (1864), 4 F. & F. 160 ; aad see B. v. Delaval (1763), 1 Wm.
Blackstone, 410, 439 ; E. v. Lord Grey (1682), 9 St. Tr. 127.
3 Poulterer’s Case (1611), 9 Kep. 55 ; B. v. Spragg (1760), 2 Burr. 993, 1027.
< R. V. Lewis (1869), 11 Cox, 404.
5 Hejfer v. Martin (1867), 15 W, E. 390, overruUng Levi v. Levi (1833), 6 C. & P. 239.
e B. V. De Berenger (1814), 3 M. & S. 67 ; B. v. Aspirudl (1876), 1 Q. B. D.
730 ; 2 Q. B. D. 48.
7 R. V. Orbell (1704), 6 Mod. 42.
« B. V. Warburton (1871), L. R. 1 0. C. R. 274.
9 B. V. Brailsford. [1905] 2 K. B. 730.
‘” bee post, pp.628—633.
UNLAWFUL PURPOSE. 259
himself off as the liond file holder, we are of opinion that it is injurious to the public and tends to bring about a public mischief. ” The Court also decided that iu such a case it was not necessary for the prosecution to allege in the iadictment, or to prove by evidence at the trial, that the
defendants intended to create any public mischief. “We are of opinion
that it is for the Court to direct the jury as to whether such an act may
tend to the public mischief, and that it is not in such a case an issue- of fact upon which evidence can be given.” ^ So it is a criminal conspiracy for an accused person to agree to indemnify
his bail against any loss which they would sustain should the accused not- appear to take his trial, for sucii an agreement obviously tends to pervert and obstruct the course of justice ; and it is not necessary that the jury should expressly find that the parties intended this result. ^ Again, “the audience have certainly aright to express by applause or
hisses the sensations which naturally present themselves at the moment ; and nobody has ever hindered, or would ever question, the exercise of that
right. But if any body of men were to go to the theatre with the settled intention of hissing an actor, or even of damning a piece, there can be no
doubt that such a deliberate and preconcerted scheme would ainount to a
conspiracy, and that the persons concerned in it might be brought to^ punishment.” ^ Where the act contemplated by the parties is in itself lawful, a cons]3iracy to carry it into effect may still be criminal
if the parties agree to attain their end by unlawful means. But such unlawful means must consist of violence, duress,
threats, stratagem, fraud or some other unfair trickery. Mere
peaceable persuasion towards a lawful act is not sufficient.^ Thus, where certain parishioners conspired together to indues a woman,
chargeable to their own parish, to marry a man who was a pauper chargeable
to a neighbouring parish, so as to throw upon thit parish the burden
of maintaining her as well, it was held that no indictment lay, as it was
not alleged that any violence, threat or other sinister mjans were employed
or that the paupers were at all unwilling to marry each otlier.^ There are, then, some cases—though few in number—in which an agreement to do an act, which is neither a crime
nor a tort, is yet indictable. But it may be asked, does an
agreement to break a contract or an agreement to induce
1 E. V. Brailsford, [1905] 2 K. B. at pp. 745—747. \ ^ R. V. Porter, [UUUJ 1 K. B. 8tiy.
^ Per Sir J. Mansfield, C. J., in Cliford v. Brandon (1809), 2 Camp, at p. 369,
(see note on p. 372) ; and see the decision in Grcgorti v. Dahe of Brunswick (1843),
1 C. & K. 24. cited poxt, p. 629.
^ See the judgment of Bowen, L. J., in Mogul Steamship Co. v. McGregor (1889), 23 Q. B. D. at p. 614, cited with approval by Kennedy, L. J., in National Phonograph Co., Ltd. V. Edison Bell, ^c, Co., Ltd., [1908] 1 Ch. at p. 369.
5 R. V. Seward and others (1834), 1 A. & E. 706. 17—2
260 CONSPIRACY.
others to break tlicir contracts fall within this category ? This is a question which has been much debated during the
last fifty years and which still remains difficult to decide. On one point, however, the answer now is clear. Such an
”interference with contractual relations” generally arises
‘” in contemplation or furtherance of a trade dispute between
employers and workmen,” and when tliat is the case, no agree- ment, wliicli affects contract merely, is a crime. This is expressly provided by section 3 of the Conspiracy and Protection of Property Act, 1875,^ which enacts that:—

” An {igreement or combiiiatiou by two or more persons to do or procure
to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy, if such act committed by one person would not be punishable as a crime. Xothiug- in this section shsdl exempt from punishment any persons guilty of a conspiracy for which a punishment is awarded by any Act of Parliament. A crime for the purposes of this section means an offence punishable on
indictment, or an offence which is punishable on summary conviction, and
for the commission of which the offender is liable, under the statute making
the offence punishable, to be imprisoned either aV)Solutely or at the discretion of the Court as an alternative for some other punishment.
AVhere a person is convicted of any such agreement or combination as aforesaid to do or procure to be done an act, which is punishable only on summary conviction, and is sentenced to imprisonment, the imprisonment
shall not exceed three months, or such longer time, if any, as may have
been prescribed by the statute for the punishment of the said act when
comnu’cted by one person.” – Hence now a combination to raise the scale of wages or to alter the hours of work, and any strike, peaceably conducted,
which arises out of ” a trade dispute,” is no longer a crime. AYorkmen may lawfully combine in trade unions or otherwise
to protect their own interests. But it is a crime for work- men out on strike to persistently follow about or annoy such
of their fellow-workmen as are still at work, to intimidate them or their wives or children, to watch or beset their houses, to hide their tools, &c.” Any of these acts is a crime
1 38 & 39 Vict. c. 86.
– As to what acts will be deemed to be done ” in contemplation or furtherance of a trade dispute ” within the meaning of s. 3 of this Act, see Conway v. Wade,
[liioy] A. C. .”)06, ])oxt, p. 63:-3. 3 lb. s. 7. As to a conspiracy to force an employer to take back a dismissed employee, see R. v. Wall (1907), 21 Cox, 401.
TKADE DISPUTES. 261
pimisliable with a fine not exceeding £20 or with imprisonment
not exceeding three months with or without hard labour. It follows that any combination, Avhich necessarily involves, or
in which the parties contemplate, the employment of any such
unlawful means, is still a criminal cons^^iracy, even though it arises out of a trade dispute ; this is so, whether the conspiracy
is a combination of workmen or of employers.^
But for one man merely to break a contract is no crime, and
for one man merely to induce another to break his contract

though a tort—is no crime. Hence for several persons to combine to do either act in connection with a trade dispute is by virtue of section 3—set out above—no crime, so long as no violence or intimidation is either used or threatened. Moreover, the Trade Disputes Act, 1906, gives a very wide
definition of the term ” trade dispute ; ” it includes ” any
dispute between employers and workmen, or between work- men and workmen, which is connected with the emjjloyment
or non-employment, or the terms of the employment, or with
the conditions of labour, of any person.” – There remain those cases in which the agreement to inter- fere with contractual relations does not ariso ” in contemplation or furtherance of a trade dispute between employers
and workmen.” In these cases there is no statute to protect the defendants from the rigour of the common law ; and we
have, therefore, still to inquire whether such an agreement is a crime. There are three cases which must be considered separately : —
(i.) A. and 13. agree to break their contracts with C, and
to induce X. and Y. to do the same.
(ii.) A. and B. agree to determine by lawful notice their contracts with C, and to induce X. and Y. to do the same.
(iii.) A. and B. agree not to enter into any contracts with
C, and to induce X. and Y. to do the same.
(i.) There are, as we have idready seen,^ a few cases in
1 R. V. Bauld (1876), 13 Cox, 282.
* 6 Edw. VII. c. 47, s. 5. sub-s. (S) ; and see the Industrial Courts Act, 1919
(9 & 10 Geo. V. c. 69). s. 8.
» Ante, p. lOG.
262 CONSPIRACY which a breach of contract is in itself a crime ; a conspiracy
to commit or to incite others to commit any such breach of contract woukl clearly be criminal. But in all other cases a breach of contract by one of the contracting parties is no
crime and no tort. For a stranger to the contract, however,
without just cause or excuse, knowingly to induce one of the contracting parties to break his contract, is a tort ; ^ .-and, therefore, for several persons to combine in so inducing
.a breach of contract is a criminal conspiracy .”-
Thus, if two or more actors in a theatrical company should each of his own accord resolve to break his contract with his employer, there is here no conspiracy, although they may snl)sequently meet and communicate
their determination to one another. But if before they have arrived at any
such determination they meet and then agree that they will all break their contracts with the common employer, eacli of them by example, exhortation
or concurrence incites the others to break their contracts also. Hence they
are all engaged in a common purpose which is tortious, and their agreement
to carry out this purpose is, apart from any statute, a criminal conspiracy.
(ii.) Either party to a contract is always at liberty to put an end to the contract by giving proper notice or by any
other agreed method. To terminate a contract thus is no
breach of it. Hence, to advise another to terminate his contract by giving proper notice is no tort. Therefore an agree- ment by two or more to induce others thus to terminate their contracts is prima facie no crime, for it amounts only to per- suading a man to do that which he has a perfect right to do. Moreover, the motive with which an act lawful in itself is done is immaterial. ” An act which does not amount to a
legal injury cannot be actionable because it is done with a bad intent.'”
‘^ And yet obviously there are cases, in which great mischief might be done, if this rule were strictly adhered to. Suppose several persons combine to do all in their power to persuade the workmen at a certain factory simultaneously to ^ive notice that they will stop work at the earliest legal
1 Lumley v. Gije (1853), 2 E. & B. 21C ; Bowen v. Hall (1881), 6 Q. B. J). 333 ; National Phonograph Co., Ltd. v. Edison Bell, tji-c, Co., Ltd., [1908] 1 Ch. 33.5.
2 South Wales Miners’ Federation v. Glamorgan Coal Co., [1905] A. C. 239.
* Per Parke, B., in Stevcnsmi v. Neionham (1853), 13 C. B. 297^ cited with approval by Lord Macnaghten in Quinn v. Leathern, [1901] A. C. at p, 508.
TO DETERMINE CONTRACTS. 263
opportunity. Very few workmen are engaged foi- more than
a week at a time ; many only work by the day or the hour. Hence a widespread combination might close the \yorks on
very short notice without any breach of contract being committed, and yet with results disastrous to the community.
It was therefore contended with much force that if such a combination were made without any just occasion or excuse,
it ought in some way to be punished. The law on this point
is not yet settled, except in the case of a trade dispute—an
exception which practically covers all serious cases in which
the point is likely to arise. If such a combination be made
” in contemplation or furtherance of a trade dispute,” it is, as we have seen, no crime, unless recourse be had to violence, intimidation or other unlawful means.
(iii.) Lastly comes a question, upon which there has been
even greater difference of opinion. Is it in any case a crime
for A. and B. to agree together not to enter into any contracts with C, and to induce X. and Y. to do the same ? For one man to refuse to enter into a contract with any
one else is no crime and no tort. Equally clearly it is no
breach of contract. It is true, as Lord Macnaghten says in Quinn v. Leathern,^ that ‘” it is a violation of legal right to interfere with contractual relations recognised by law, if there be no sufficient justification for the interference.” But in the case we are now discussing there are as yet no contractual
relations in existence to be interfered with. Again, for one man to induce another not to enter into a contract with any
one else is no crime, no tort and no breach of contract. It
is only where the number of persons implicated is increased
that any possibility of a legal wi-ong arises. Can it be said, then, that it is in any case unlawful for two
or more men to combine together to do an act, which is lawful when done by one man alone ? This question has been
repeatedly discussed, but it is not yet definitely decided. Darling, J., held in Huttleij v. Simmons and others,’ that it cannot be a tort, for two or more persons merely to combine
1 [1901] A. C. at p. 510.
2 [1898] 1 Q. B. isi.
264 CONSPIRACY
to do an act, which, if done by one person, would be neither
a tort nor a crime. The correctness of this decision, however,
has been questioned.^ And even if it be good law, it does not necessarily follow that such a combination is no crime
;
for a crime need not always be also a tort. The interests of the community—nay, even the safety of the public—may in some cases require that such a combination should be sternly
repressed, even though no action for damages could be founded
upon it. No one, it is true, is bound to work for or deal with a particular person; he may lawfully refuse to enter
into any such contract. But if a large number of persons, without any sufficient justification, agree together that they
will not enter into any contracts with some unpopular person —will not supply him or his family with the necessaries of
life—this is a criminal conspiracy; it is the crime of ‘* boycotting.” For several persons out of express malice towards
one man to agree together to induce many others not to enter
into contracts with him is a crime ; for though the victim of the conspiracy may be a match for one man, he cannot successfully contend against a combination of many men.- That such a crime exists is clear; but its nature and
extent are ill-defined. The following points, however, appear
to be well settled :

If A. and B. agree together to advise X. and Y. not to enter into any contracts with C, and do so bond fide for the good of X. and Y., giving them advice which they honestly
believe to be in the best interests of X. and Y., this is clearly no crime ; for there is neither actus reus, nor mens rea. This
will be so whenever A. and B. can show any sufficient justi- fication or excuse for their interference in the private concerns
of X. and Y. Friendly advice is no crime, even though it cause damage to a third person. Again—though this is not quite so clear—there is no
crime where the interference of A. and B. is caused by
motives of self-interest. Competition between rival traders
is allowed to any extent, if only lawful means are employed.
1 See post. pp. C31, fi32.
2 See the judgment of Lord F.raniwcU in Mugul Sfraii/.shij) (\i. v. JJcO’ret/or, [1892] A. C. at p. 45, and of Lord Brampton in Qitinu v. Lratliem, \_\’:H)\] A. C. at p. 531.
NOT TO CONTRACT. 205
So long as neither force nor threats of violence are used,^ it is no tort, and—in most cases at all events—no crime, for two
or more, from motives of self-interest, to agree together
to induce others not to enter into contracts with a rival trader ; for self-interest is not malice. It is not clear, however, that this rule applies in its entirety to cases of criminal
conspiracy. The remarks of Bowen, L. J., in Mogul Steamship Co. V. 2IcGregor,- suggest that an agreement of the kind,
which the Court in this case declared not to be actionable,
might nevertheless in some cases be held to amount to an
indictable conspiracy on the ground of obvious and excessive inconvenience. And even where the action of the defendant is dictated neither by motives of self-interest nor of friendship for X.
and Y., nevertheless, if the conspiracy be entered into in contemplation or furtherance of a trade dispute, it is, as we
have seen, no crime, unless A. and B. intended to have
recourse to violence and intimidation, or unless such was the natural consequence of their acts. The Legislature apparently
considered a trade dispute a sufficient justification.
Boycotting, however, frequently arises from religious or
political ill-feeling, in which no trade interests are concerned. •’ And here it would seem that we have arrived at an instance
of a criminal conspiracy arising out of acts, which in themselves w^ould be innocent if done by one man without pre- concert with others. The parties engaged in it must be numerous; they must be actuated by motives of spite and
ill-will against the person boycotted. Their conduct must be
calculated to do him and his family serious and substantial damage ; and the result of the combination must, it is submitted, be such as to cause some mischief or inconvenience
to the public generally or to a portion of the public ; other- wise the conspiracy is no crime.
^
1 Tarletonand otliers v. McGawley (179i), Peake, 270 ; Young v. Hiclieiiii (1844

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