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Conspiracy charges are complex because they rely upon the court concluding that agreements were reached between persons to commit a criminal act even if the act did not actually take place. As such, being charged with a conspiracy offence can feel nebulous and sometimes downright unfair. It can feel like an attempt from law enforcement to tar all participants in a planned crime with the same brush even when some were much more involved than others. Historically, the offence existed only in the common law, i.e. the law created by the courts. This meant that there was no written definition, which made its interpretation even wider than it is today.
Nowadays, conspiracy in the law of England and Wales is set out at Section 1 of the Criminal Law Act 1977, but the common law offence also still exists for certain subtypes of conspiracy offence. This means that the police and the CPS still have a relatively wide discretion in respect of how to apply the law, and in practice it is used in a diverse range of situations. If you have been accused of a conspiracy offence, make sure you understand your rights in relation to this web of different laws. And, if you believe you have been wrongly accused, explain your account of events to your criminal defence solicitor who will advise you on your options.
Conspiracy exists in both statutory and common law in England and Wales.
According to Section 1 of the Criminal Law Act 1977, conspiracy is where:
‘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
Strangely enough, this definition means that individuals can be found guilty of conspiracy even where the offence that they are seeking to commit is impossible!
Conspiracy to commit offences outside of the UK
The Criminal Law Act also allows the CPS to prosecute for conspiracy to commit offences outside the UK, pursuant to Section 1A of the Criminal Law Act 1977. Such a prosecution can only be brought where the act would constitute an offence according to the law of the territory where it would be committed. Some part of the agreement must have been made in England and Wales.
A charge under 1A can only be brought with the permission of the attorney general. Individuals working for the Crown cannot be charged under Section 1A of the Criminal Law Act.
Exemptions from liability for conspiracy
The Criminal Law Act provides for some exemptions from liability for conspiracy. These include the following:
Common law conspiracy
There are two types of common law conspiracy. Both are indictable only offences i.e they must be heard in the Crown Court.
The first is conspiracy to defraud. This is often used to prosecute conspiracy to commit offences under the Fraud Act 2006. It can, however, also be used to prosecute for conspiracy to defraud even when the act that is being planned does not amount to a crime.
The second type of common law conspiracy is conspiracy to do an act that tends to corrupt public morals or outrage public decency, whether or not the act amounts to a crime.
Interpretations of conspiracy
Over the years, the courts have defined the meaning of a conspiracy. Conspiracy is understood to mean the agreement to commit a criminal act. The offence can be committed even where nothing has been done to actually put the criminal scheme into effect. Therefore even if the participants later repent their agreement, or there is no opportunity to commit the offence, or the parties fail to carry out the offence, they can still be found guilty of conspiracy.
In order to be a conspiracy, there must be an overt or written agreement by the parties involved. The motives of the parties for entering a conspiracy are irrelevant. For example, in one case an undercover police officer entered a conspiracy in order to catch a drug dealer. However, his motive was found to be irrelevant and he was still found to be guilty of a conspiracy.
An agreement can still be a conspiracy even if there is some kind of reservation to the plan. For example, perhaps a piece of information still needs to be obtained before the plan can be finalised. In that case, the court might still find there is a conspiracy even though the plan is not ‘whole’.,
According to the CPS, sometimes the prosecution will bring a charge of conspiracy as an alternative to bringing a substantive charge. For example, they may decide to charge defendants with the conspiracy to commit burglary instead of charging for burglary. In other situations, the prosecution decides to charge for both the conspiracy offence and the substantive offence. This may be done where the element of conspiracy makes the crime much more serious.
There is no guidance from the Sentencing Council in respect of conspiracy generally. This is because according to Section 3 of the Criminal Law Act, the sentence of imprisonment for conspiracy varies depending on the sentence for the relevant offence. You cannot, however, be given a custodial sentence that exceeds the statutory maximum for the relevant offence.
Say, for example, you are being sentenced for conspiracy to supply class B drugs. The maximum sentence for supply of class B drugs pursuant to the Misuse of Drugs Act 1971 is 14 years’ imprisonment. This means that you could not be sentenced to more than 14 years on the conspiracy charge. Alternatively, conspiracy can be punished by way of an unlimited fine.
If you have been charged with conspiracy to commit murder, or any other offence that carries a life sentence, you could receive a life sentence for your conspiracy charge. It may sound strange that you could receive a life sentence for, say, a murder that did not actually take place. But for public policy reasons, the courts treat a plan to commit a serious offence as seriously as if the offence was actually committed.
Conspiracy to defraud
The common law offence of conspiracy to defraud has a maximum sentence of 10 years’ custody. The offence range is between a discharge at most lenient, to 8 years’ custodial sentence at the most serious.
When deciding the sentence, the court will first consider the culpability of the offender, i.e. the nature of their involvement in the offence. A person in a leadership role will be deemed more culpable, whereas a person in a less significant role will be less culpable. A person who has been coerced or pressurised to participate in the offence would also be found to be less culpable.
If this sounds like you, these are matters that you should discuss with your criminal defence solicitor so that they can be taken into account when the court is deciding your sentence.
The second key factor that will be taken into account is the harm caused by the conspiracy. This will be based on the value of the intended fraud, or the intended value, even if the fraud did not actually take place or if the actual value of the fraud was less than planned.
If you have been charged with a conspiracy offence, this is no doubt a stressful time for you. Perhaps you are wondering what kind of jail time you could face. You may also be asking yourself whether there is a defence available that you might be able to rely upon. The criminal defence solicitor that you choose to instruct could make all the difference to your case. At Stuart Miller Solicitors, our experienced and reliable team of lawyers are ready and waiting to help you. Whether it is assisting you to prepare a robust defence or helping you get your sentence reduced in mitigation, we will pull out all the stops to assist you. Contact us today.