THE

LAW QUARTERLY

REVIEW.

No. XXIII. July, 1890.

THE LAW OF CONSPIRACY IN ENGLAND AND
IRELAND.

Na recent article in this REVIEW, under the above heading, Mr. Kenelm Digby considers and contrasts the law of criminal conspiracy as at present subsisting in England and Ireland. In tones of almost judicial moderation, he invites us to arrive at the conclusion that the law of criminal conspiracy has of late years been extended by the Irish Judges beyond the limits laid down by English Courts; and, consequently, that certain combinations, which are perfectly innocent in England, have been declared to be criminal, and as such have been made punishable, in Ireland. The steps by which this conclusion is reached may be summarised thus. Mr. Digby examines certain English authorities, and infers from them a definition of criminal conspiracy, which is more limited than the decisions justify. He then examines certain Irish authorities, and infers from them a definition of criminal conspiracy which is more extended than the decisions justify. A comparison based on these inferences leads to the result already indicated. It is a matter of more than speculative interest to consider how far Mr. Digby's views can be supported.

The Irish cases considered by Mr. Digby fall under two heads : first, cases of prosecution for criminal conspiracy under the common law1; and secondly, cases of criminal conspiracy decided under the second section of the Criminal Law and Procedure (Ireland) 1887, generally known as the Crimes Act. It will be convenient to deal with each of these heads in order.

As regards prosecutions for criminal conspiracy under the common law, Mr. Digby refers to two cases, namely, that of R. v. Parnell and R. v. Dillon, and states his conclusion thus:-Thus the step was taken in Ireland which, as has been shown, had never been taken 2 Supra, pp. 139-142.

1 Supra, pp. 138, 139. VOL. VI.

S

by any English Court; and it was in effect declared that an agreement to break a contract was in itself an indictable offence 1.'

Now the first, and possibly a sufficient, answer to this conclusion of Mr. Digby's is, that no Irish Judge ever made the sweeping declaration that an agreement to break a contract is in itself an indictable offence.' But, as it is desired to deal with the substance of Mr. Digby's contention, and not with isolated expressions, it will be well to examine a little more closely into the two cases he has cited.

In R. v. Parnell a criminal information containing several counts was laid against Mr. Parnell and thirteen of his colleagues. For the present purposes it may be sufficient to refer only to the first count, which charged that the traversers with intent to injure owners of farms let to tenants in consideration of payment of rent, conspired to incite tenants in breach of their contracts of tenancy to refuse to pay the rents which they were legally liable to pay, to the great damage of the owners.

It will be observed that the offence charged was in no sense a mere agreement or combination to break contracts. The combination alleged involved also damage to the landowners and the violation of their legal rights. Moreover (as pointed out by Lord Fitzgerald in his charge to the Jury 3) it was a combination to incite tenants, not only to refuse to pay the rents they were legally bound to pay, but to retain possession of the farms against the law of the country.

Before dealing with Lord Fitzgerald's charge, it may be well to consider what is the law as laid down by English Judges on the subject. Mr. Digby would have us to infer that a combination to injure an individual or a class is not in any case an offence by the law of England, unless criminal means are used. It is conceived that this view cannot be supported. The true view to be gathered from the authorities appears to be, that where the 'injury' involves the invasion of a legal right, the combination to do the injury is criminal.

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In R. v. Duffield 5 (decided in 1851) Erle J. said, 'A conspiracy to injure-two men combining to interfere with a man's civil right-is indictable.' Again, in R. v. Rowlands (1851) the same Judge, after stating that it was lawful for persons to combine for their own benefit, added, 'But I consider the law to be clear so far only as while the purpose of the combination is to obtain a benefit which by law they can claim. I make that remark, because a combination for the purpose of injuring another is a combination of a different

nature, directed personally against the party to be injured; and the law allowing them to combine for the purpose of obtaining a lawful benefit to themselves, gives no sanction to combinations which have for their immediate purpose the hurt of another.'

It is important to notice that this summing up of Erle J. in R. v. Rowlands is referred to with approval by Lord Campbell, Patterson J., and Coleridge J. in the same case1, and more recently by two Judges of the highest eminence, Lord Justice Bowen and Lord Justice Fry, in the case of Mogul Steamship Co. v. McGregor Gow & Co.2, which was decided in July 1889, and which will be presently referred to at length.

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To the same effect is the Report (quoted by Mr. Digby) in 1875 of the Royal Commission, presided over by the late Lord Chief Justice Cockburn 3. According to that authority, a conspiracy exists when with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as when perpetrated by a single individual would amount to an offence under the criminal law.' Mr. Digby appears to lay somewhat undue stress on the use of the expression 'malicious design;' it may therefore be well to quote from a later portion of the Report. The law, therefore, and as it seems to us wisely and justly, established that a combination of persons to commit a wrongful act with a view to injure another shall be an offence, though the act if done by one would amount only to a civil wrong.' The meaning of the word 'malicious' may, in fact, be illustrated by the language of Lord Esher in the Mogul Steamship case. 'The word malice is satisfied by the thing being done with the knowledge of the plaintiff's right, and with intent to interfere with it " maliciously," or, which is the same thing, "with notice." Per Crompton J. in Lumley v. Gye1.

The latest and most authoritative statement of the law on the subject is to be found in the judgments of Lord Justice Bowen and Lord Justice Fry in the Mogul Steamship case. Lord Justice Bowen says 8:

Of the general proposition that certain kinds of conduct not criminal in any one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one's own.

just rights. In the application of this undoubted principle it is necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public; and it may be observed in passing that as a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy; see Skinner v. Gunton1; Hutchins v. Hutchins2. But what is the definition of an illegal combination? It is an agreement by one or more to do an unlawful act, or to do a lawful act by unlawful means: O'Connell v. The Queen 3; R. v. Parnell; and the question to be solved is whether there has been any such agreement here.'

The Lord Justice then takes the cases of certain particular combinations, and in answer to the enquiry whether they are such as to amount to an indictable conspiracy, he proceeds :-

In cases like these where the elements of intimidation, molestation, or the other kinds of illegality to which I have alluded are not present, the question must be decided by the application of the test I have indicated. Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question, Was it done with or without "just cause or excuse"? If it was bona fide done in the use of a man's own property, in the exercise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable: see the summing up of Erle J., and the judgment of Queen's Bench in R. v. Rowlands. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own rights. The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell. But if the real object were to enjoy what was one's own, or to acquire for one's self some advantage in one's property or trade, and what was done was done honestly, peaceably, or without any of the illegal acts above referred to, it could not in my opinion properly be said that it was done without just cause or excuse.'

The judgment of Lord Justice Fry is substantially to the same effect. The true distinction would appear to be that, whereas a combination to promote the lawful rights of those who combine is lawful, even though damage to individuals may result, a combination to do acts in violation of the lawful rights of others and

necessarily resulting in damage to those others, is civilly actionable and is also criminal.

It is important and interesting to notice that the same doctrine has been quite recently laid down in Ireland by Chief Baron Palles in a case of Kearney v. Lloyd1, where the learned Judge laid it down that in order that a combination to injure should be either actionable or criminal it is necessary that the 'injury' should amount to an invasion of a legal right.

One more authority may be quoted, to show the view of the law adopted by English text-writers. In Archbold's Criminal Law,' twentieth edition (published in 1886), at p. 1087, it is stated that 'Conspiracy' (meaning criminal conspiracy) 'is' (among other things) 'an agreement of two or more persons wrongfully to injure a third person or to injure any body of persons.'

It is conceived, that the great weight of these authorities is not seriously affected by the somewhat doubtfully expressed opinion of Mr. Wright in a book published in 1873, or by the fact, alluded to by Mr. Digby, that a combination wrongfully to injure a person or persons is not included in the enumeration of criminal conspiracies which is given in the Report of the Criminal Code Commissioners in 1878.

Turning now to Lord Fitzgerald's charge to the Jury in R. v. Parnell, it is important, in order to see whether the law there laid down really went beyond the principles established by English decisions, that the charge should be read in extenso. It will be found that he expressly bases his views on the opinion of Chief Justice Tindal given to the House of Lords in O'Connell v. The Queen2, and the opinion of Mr. Justice Willes, given to the House of Lords in R. v. Mulcahy 3, and generally on the law as established in England. He proceeds: 'I have to declare to you that it is a criminal offence when two or more agree to do an injury to a third party or class, though that injury if done by one alone of his own motion would not be in him a crime or offence, but would be simply an injury carrying with it a civil remedy.' So far the ruling of Lord Fitzgerald is merely a repetition of what has already been shown to be established by the highest English authorities. The learned Judge however also stated (in a passage quoted by Mr. Digby): 'If a tenant withholds his rent, that is a violation of the right of the landlord to receive it; but it would not be a criminal act in the tenant, though it would be in the violation of a right; but if two or more incite him to do that act, their agreement so to incite him is by the law of the land an offence.' In order to test this state3 L. R. 3, H. L. 117.

126 I. L. R. 268.

2 11 Cl. & F. 155.