CHAPTER X. CONSPIRACY. A CONSPIRACY is an agreement by two or more persons to carry 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, unless the conspiracy is to commit a crime which would be triable at Quarter Sessions if committed by one person.2 1 3 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 R. v. Scofield, that a bare intent, however criminal, is not punishable by our law; for the agreement itself is an act, and will 1 14 & 15 Vict. c. 100, s. 29. ? Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), s. 1. 324 & 25 Vict. c. 100, s. 4. An article in a newspaper, exulting over the assassination of the Emperor of Russia and commending it as an example, was held to be an encouragement or endeavour to persuade to murder within this section, although it was not addressed to any one in particular: R. v. Most (1881), 7 Q. B. D. 244. 4 See the judgments of Tindal, C. J., in O'Connell v. R. (1844), 11 Cl. & F. at p. 233, and of Lord Chelmsford in Mulcahy v. R. (1868), L. R. 3 H. L. at p. 328. 5 (1784), Cald. S. C. at p. 403. remain a crime, even though all the conspirators should afterwards repent of their purpose and take no further step in pursuance of it. "The overt acts which follow a conspiracy 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.2 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." 3 4 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 agreement 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 actions 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. 5 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 misdemeanour 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. Leathem, [1901] A. C. at p. 530. 2 See the Indictments in the Appendix, Nos. 6 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 Quinn v. Leathem, [1901] A. C. at p. 529, and by the Court in R. v. Brailsford, [1905] K. B. at p. 746. Skinner v. Gunton (1669), 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. 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.1 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.2 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.3 A criminal conspiracy, then, is an agreement to carry out an unlawful common purpose or to carry out a lawful common purpose in an unlawful manner. But it is necessary to explain the meaning of the word "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 R. v. Turner and others, it was held that a combination of eight persons to commit a merely civil trespass in the bona fide assertion of an alleged common right was not indictable. But the phrase 4 1 14 & 15 Vict. c. 100, s. 12. 2 R. v. Plummer, [1902] 2 K. B. 339. 3 R. v. Duguid (1906), 94 L. T. 887. And see R. v. Perrin (1908), 72 J. P. 144. (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. 17 "unlawful common purpose" not only covers all crimes and most torts; it also includes 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 an indictable conspiracy for A. and B. to agree together to induce a woman C. to become a common prostitute, whether she to defraud the public by holding a mock auction (but for them to to raise the price of the funds by false rumours; 6 8 to "pull a horse" and prevent it winning a race;7 In the last case Lord Alverstone, 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, 10 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 representation for an improper purpose, i.e., for use by a different person passing 1 R. v. Whitaker, [1914] 3 K. B. 1283. 2 R. v. Howell (1864), 4 F. & F. 160; and see R. v. Delaval (1763), 1 Wm. Blackstone, 410, 439; R. v. Lord Grey (1682), 9 St. Tr. 127. 3 Poulterer's Case (1611), 9 Rep. 55; R. v. Spragg (1760), 2 Burr. 993, 1027. 4 R. v. Lewis (1869), 11 Cox, 404. 5 Heffer v. Martin (1867), 15 W. R. 390, overruling Levi v. Levi (1833), 6 C. & P. 239. 6 R. V. De Berenger (1814), 3 M. & S. 67; R. v. Aspinall (1876), 1 Q. B. D. 730; 2 Q. B. D. 48. 7 R. v. Orbell (1704), 6 Mod. 42. 8 R. v. Warburton (1871), L. R. 1 C. C. R. 274. 9 R. v. Brailsford, [1905] 2 K. B. 730. 10 See post, pp. 628-633. himself off as the bona fide 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 in such a case it was not necessary for the prosecution to allege in the indictment, 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." 1 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 such 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.2 Again, “the audience have certainly a right 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 amount to a conspiracy, and that the persons concerned in it might be brought to punishment." 3 Where the act contemplated by the parties is in itself lawful, a conspiracy 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 induce 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 that 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 means were employed or that the paupers were at all unwilling to marry each other.5 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 R. v. Brailsford, [1905] 2 K. B. at pp. 745-747. 2 R. v. Porter, [1910] 1 K. B. 369. Per Sir J. Mansfield, C. J., in Clifford v. Brandon (1809), 2 Camp. at p. 369, (see note on p. 372); and see the decision in Gregory v. Duke of Brunswick (1843), 1 C. & K. 24. cited post, 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. R. v. Seward and others (1834), 1 A. & E. 706. ! |