Conspiracy
Criminal Conspiracy
In the criminal law, a conspiracy is an agreement between two or more natural persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement. There is no limit on the number participating in the conspiracy and, in most countries, no requirement that any steps have been taken to put the plan into effect (compare attempts which require proximity to the full offence). For the purposes of concurrence, the actus reus is a continuing one and parties may join "the plot" later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted and/or cannot be traced. Finally, repentance by one or more parties does not affect liability but may reduce their sentence.
Conspiracy in English law
Common law residue
Under the common law the crime of conspiracy was capable of infinite growth, able to accommodate any new situation and to criminalize it if the level of threat to society was sufficiently great. The courts were therefore acting in the role of the legislature to create new offences and, following the Law Commission Report No. 76 on "Reform of the Common Law", the Criminal Law Act 1977 produced a statutory offence and abolished all the common law varieties of conspiracy, except for:
Conspiracy to defraud
Although most frauds are crimes, it is irrelevant for these purposes whether the agreement would amount to a crime if carried out. This gives the prosecution a choice whether to charge statutory or common law conspiracy where the agreement would amount to the commission of an offence if carried out. If the victim has suffered any financial or other prejudice, there is no need to establish that the defendant deceived him or her. But, following Scott v Metropolitan Police Commissioner (1974) 3 All ER 1032, it is necessary to prove that the victim was dishonestly deceived by one or more of the parties to the agreement into running an economic risk that he or she would not otherwise have run, if the victim has not suffered any loss. For the mens rea, it is necessary to prove that "the purpose of the conspirators (was) to cause the victim economic loss" (per Lord Diplock in Scott). For the test of dishonesty, see R v Ghosh (1982) 2 All ER 689.
Conspiracy to corrupt public morals or to outrage public decency
These two offences exist, if at all, only when the agreement would not amount to a substantive crime if carried out by a single person and covers situations where, for example, a publisher encourages immoral behavior through explicit content in a magazine or periodical. But, in R v Rowley (1991) 4 All ER 649, the defendant left notes in public places over a period of three weeks offering money and presents to boys with the intention of luring them for immoral purposes, but there was nothing lewd, obscene or disgusting in the notes. The judge ruled that the jury was entitled to look at the purpose behind the notes in deciding whether they were lewd or disgusting. On appeal against conviction, it was held that an act outraging public decency required a deliberate act which was in itself lewd, obscene or disgusting, so Rowley’s motive in leaving the notes was irrelevant and, since there was nothing in the notes themselves capable of outraging public decency, the conviction was quashed.
Statutory Conspiracy
S1(1) Criminal Law Act 1977 provides:
- "...if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either -
- (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
- (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, [added by S.5 Criminal Attempts Act 1981]
- he is guilty of conspiracy to commit the offence or offences in question."
Exceptions
- S.2 (2) there can be no conspiracy where the only other person(s) to the agreement are:
- (a) a spouse;
- (b) a person under the age of criminal responsibility; and
- (c) an intended victim of that offence."
Elements of the offence
There must be a real agreement with the parties having agreed all the major details of the "crime" or "crimes" (not including other inchoate offences) to be committed within the territorial jurisdiction of the court, and the parties must "intend" or "know" the facts which make the conduct criminal even where the full offence is strict. Thus, the mens rea of conspiracy is a completely separate issue from the mens rea required of the substantive crime: Attorney General ex parte Rockall (1999) Crim LR 972 where the issue of corruption in public office was complicated by the presence of the presumption of corruption in s2 Prevention of Corruption Act 1916 unless the contrary is proved in respect of payments to persons in public employment (a provision that probably breaches the human rights requirement as to a presumption of innocence).
Conspiracy in the United States
Conspiracy has been defined in America as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. For example, planning to rob a bank (an illegal act) in order to raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use illegal means to accomplish the end goal. The commonly used phrase: "The ends don't justify the means" reflects the same legal reasoning.
A conspiracy does not need to have been planned in secret in order to meet the definition of the crime. Of course, there is a high premium on conspirators making their plans in secret, otherwise their illegal agreement could be prohibited by court injunction or the members of the conspiracy could be sued for damages suffered by those injured by their illegal agreement. Finally, if the planning for the illegal agreement is uncovered, the conspirators could be prosecuted.
One legal dictionary, law.Com, provides this useful example on the application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the law can handle both the criminal and the civil need for justice.
[A] scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages [in civil court] for the fraud and conspiracy.
Finally, and on a more technical legal matter, conspiracy law usually does not require proof of the specific intent by the defendants to injure any specific person in order to establish an illegal agreement. Instead, usually the law only requires the conspirators have the agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law.
In United States v. Shabani, 513 U.S. 10 (1994) the United States Supreme Court ruled: U.S. Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability" at least in so far as to establish a violation of a narcotics conspiracy under 21 U.S.C. § 846. Therefore, the Government need not prove the commission of any overt acts in furtherance of those narcotics conspiracies prohibited by 21 U.S.C. § 846. The Shabani case illustrates that it is a matter of legislative prerogative whether to require an overt step, or not to require an overt step in any conspiracy statute. The court compares the need to prove an overt step to be criminally liable under the conspiracy provision of the Organized Crime Control Act of 1970, while there is no such requirement under 21 U.S.C. § 846.
The Supreme Court pointed out that common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis.
California criminal law is somewhat representative of other jurisdictions. A punishable conspiracy exists when at least two people form an agreement to commit a crime, and at least one of them does some act in furtherance to committing the crime. Each person is punishable in the same manner and to the same extent as is provided for the punishment of the crime itself. [1]
One example of this is The Han Twins Murder Conspiracy case, where one twin sister attempted to hire two youths to have her twin sister killed.
One important feature of a conspiracy charge is that it relieves prosecutors of the need to prove the particular roles of conspirators. If two persons plot to kill another (and this can be proven), and the victim is indeed killed as a result of the actions of either conspirator, it is not necessary to prove with specificity which of the conspirators actually pulled the trigger. (Otherwise, both conspirators could conceivably handle the gun—leaving two sets of fingerprints—and then demand acquittals for both, based on the fact that the prosecutor would be unable to prove beyond a reasonable doubt, which of the two conspirators was the triggerman). In order to achieve a conviction on charges of conspiracy, is sufficient to prove that a) the conspirators did indeed conspire to commit the crime, and b) the crime was committed by an individual involved in the conspiracy. Proof of which individual it was is usually not necessary.
It is also an option for prosecutors, when bringing conspiracy charges, to decline to indict all members of the conspiracy (though their existence may be mentioned in an indictment). Such unindicted co-conspirators are commonly found when the identities or whereabouts of members of a conspiracy are unknown; or when the prosecution is only concerned with a particular individual among the conspirators. This is common when the target of the indictment is an elected official or an organized crime leader; and the co-conspirators are persons of little or no public importance. More famously, President Richard Nixon was named as an unindicted co-conspirator by the Watergate special prosecutor, in an event leading up to his eventual resignation.
Civil Conspiracy
In the law of tort, the legal elements necessary to establish a civil conspiracy are substantially the same as for establishing a criminal conspiracy, i.e. there is an agreement between two or more natural persons to break the law at some time in the future or to achieve a lawful aim by unlawful means. The criminal law often requires one of the conspirators to take an overt step to accomplish the illegal act to demonstrate the reality of their intention to break the law, whereas in a civil conspiracy, an overt act towards accomplishing the wrongful goal may not be required. Etymologically, the term comes from Latin con- "with, together", and spirare "to breathe".
Civil conspiracy in United States business litigation
Business litigation often involves the use of conspiracy lawsuits against two or more corporations. Often joined in the lawsuit as defendants are the officers of the companies and outside accountants, attorneys, and similar fiduciaries.
Civil conspiracy law often takes the form of antitrust lawsuits, usually litigated in federal court, where the plaintiff seeks treble damages for overpayments caused by price-fixing above the market rate. The federal Sherman Antitrust Act provides both civil and criminal penalties. Other agreements among businesses and their agents for group boycotts, to monopolize, and to set predatory prices with intent to drive a small competitor out of business, would be actionable.
Conspiracies in violation of the federal securities laws such as the Securities Act of 1933 and the Securities Exchange Act of 1934 form another area where intense civil and criminal lawsuits occur over the existence or non-existence of an alleged conspiracy. Both the Securities Exchange Commission (SEC) and the Department of Justice bring legal actions for conspiracies to violate the securities laws. For example,a regional bank called PNC Financial Services Group Inc. through a subsidiary agreed, in June 2003, to pay $115 million in civil fines and restitution to settle the SEC's allegations of securities fraud. The subsidiary was accused of conspiracy to violate securities laws by transferring $762 million in troubled loans and investments to off-balance-sheet entities in 2001. In that case, the Justice Department deferred prosecution of PNC, citing its cooperation in a related investigation. Similarly, the civil litigation against the tobacco companies to recover health care costs, alleges a conspiracy under the Medical Care Recovery Act, 42 U.S.C. §§ 2651, et seq. (Count One), the Medicare Secondary Payer provisions of Subchapter 18 of the Social Security Act, 42 U.S.C. § 1395y(b)(2)(B)(ii) &(iii) (Count Two), and the civil provisions of Chapter 96 of Title 18, United States Code, codified at 18 U.S.C. §§ 1961 through 1968, entitled Racketeer Influenced and Corrupt Organizations ("RICO") to deceive the American public about the health effects of smoking.
Often the modern civil law of conspiracy is described in "plain language" jury instructions. The standard California jury instruction for conspiracy is governed by Rule 855 of the California Rules of Court, The new California jury instructions are designated as the “official instructions for use in the state of California.” It is not mandatory for the California judges to use them; but it is strongly encouraged. Some of the "plain language" California civil instructions about conspiracy read as follows with fictional names placed in the blanks in the jury instruction form:
California "Plain Language" jury instructions 360 conspiracy: essential factual elements
A conspiracy is an agreement between two or more persons to commit a wrongful act.
Such an agreement may be made orally or in writing or implied by the conduct of the parties.
Plaintiff Smith, Inc., claims that it was harmed by Defendant Jones Corp. for refusing to sell widgets to Plaintiff Smith, Inc. with intent to unreasonably injure competition, and that Defendant Brown & Associates is also liable for the harm because it was part of the conspiracy with Jones Corp. to unreasonably injure competition under the California antitrust laws.
The facts of each case can vary widely as to exact nature of the underlying scheme. In the above example, a common fact pattern could be that widgets are necessary equipment needed for Smith, Inc. to manufacture its product, and Brown & Associates is a competitor of Smith,Inc.
How the conspirators entice one another into the scheme also varies with each case. One fact pattern for the above example would be Brown & Associates promises Jones, Corp. (the supplier of widgets) to give Jones part of the additional profits that Brown hopes to make if Smith, Inc goes out of business because it lacks the necessary widgets.
English law
The tort of conspiracy requires there to be knowledge of the relevant circumstances and of the agreement made. Thus, as a precondition to corporate liability, it must be possible to attribute the relevant employee's or agent's knowledge to the corporation. There are two possible legal approaches:
- as a matter of agency law, the acts and omissions constituting the alleged conspiracy must have been carried out within the actual or ostensible authority of the agent; or
- as a matter of vicarious liability the acts and omissions must have been carried out in and during the course of the employment.
There is little difficulty when the claim is that the company either conspired with a second company or with at least two natural persons. The requisite knowledge can be attributed under either head as appropriate. But there is a problem under the first heading when fraud is involved because there is a clash of authority. Lloyd v Grace, Smith & Co. [1912] AC 716 held that a Principal may be liable where the Agent commits a fraud within actual or apparent authority, whereas in In re Hampshire Land Company [1896] 2 Ch 743, it was held that the knowledge and, sometimes, the conduct of an Agent acting fraudulently so as to cause loss to the Principal will not be imputed to the Principal. In theory, vicarious liability may be of more assistance in that it is attributing the wrong done by one (natural) person to another (fictitious) but, in Belmont Finance Corporation v Williams Furniture Ltd [1979] Ch 250, the Hampshire Land agency line of authority was preferred. Belmont, a company in liquidation, sued a number of defendants, including the majority of its own directors, for conspiracy to procure Belmont to buy shares in another company at a gross overvalue. The purpose of this plan was to fund the acquisition of shares in Belmont itself by some of the defendants. Foster J. struck out the claim on the basis that Belmont was itself a party to the conspiracy. On appeal, Buckley LJ. said:
- But in my view knowledge should not be imputed to the company, for the essence of the arrangements was to deprive the company improperly of a large part of its assets. As I have said, the company was a victim of the conspiracy. I think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to the company.
Because Belmont could only be a party to the conspiracy if knowledge was imputed, the Court of Appeal insulated it from the knowledge of its directors even though those directors, with that knowledge, made relevant decisions at board meetings and attached the company seal to the relevant documents. To that extent, liability in conspiracy is different to the standard vicarious liability situations in which, say, a company will be deemed to know that vehicles or machinery have not been properly maintained or that a service has been negligently delivered.
ReferencesISBN links support NWE through referral fees
Department of Trade & Industry. "Company Law Review: Attribution of Liability". [2] US Department of Justice. "Antitrust Enforcement and the Consumer" [3] US Department of Justice Civil Lawsuit: FAQ. "U.S. Department of Justice RICO Lawsuit Against the Cigarette Industry: Background and Frequently Asked Questions" [4]
Law Commission Report No 228 "Conspiracy To Defraud" (1994)
Smith, J. C. "Some Comments On The Law Commission's Report" (1995) CLR 209.
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