What is the law relating to Conspiracy?
Within criminal law, conspiracy is defined as an agreement between 2 or more people to undertake a criminal activity. It is irrelevant if the criminal act is never committed, it is a ‘meeting of minds’ with an understanding from all parties that they will participate in the activity i.e. there is intent despite the action being only preparatory.
The law in relation to Conspiracy is contained within s.1(1) of the Criminal Law Act 1977, which defines ‘statutory conspiracy’:
“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,
he is guilty of conspiracy to commit the offence or offences in question.”
This means that there needs to be agreement between the parties; the parties must intend to carry out an action; and if that agreement is carried out, the action would be a criminal offence (as defined in the law of England and Wales). Impossibility of carrying out the offence is no defence – the offence of conspiracy is committed at the point of agreement.
Despite conspiracy becoming an offence contained in statute in 1977, several common law conspiracy offences were expressly reserved to remain in common law, for example conspiracy to defraud.
How is conspiracy used in drug dealing investigations?
The most common conspiracy offences in relation to drug dealing are conspiracy to supply or import illegal substances.
All the elements of statutory conspiracy need to be present, with the criminal act being the importation, supply or distribution of illegal substances, e.g. cocaine, heroin, ketamine or cannabis.
That means a person is guilty of conspiracy to supply drugs, even if they never undertake the actual act of supply or distribution. A person anywhere in the operation or supply chain could be guilty of this offence; for example, financing, planning or even providing assistance as a ‘look-out’. It is the act of agreeing to partake in the activity which constitutes the offence itself.
Regardless of the level of involvement by an individual in the conspiracy, conspirator charges are the same and, in many cases, so is the sentencing. That means that even very limited direct involvement in the criminal offence can result in a lengthy custodial sentence.
How will the Prosecution attempt to prove an individual’s involvement when considering a criminal conspiracy?
Prosecutors will often look at a variety of sources to provide evidence of an individual’s involvement in a conspiracy charge. Examples of sources include, but are not limited to:
- Mobile phone records of calls and messages between individuals, included encrypted communication;
- Location tracking / movements of involved individuals – this could include cell site analysis, CCTV footage or ANPR tracking;
- Associations with known offenders or co-participants;
- Previous criminal history – where admissible; and
- Possession of incriminating items, such as drugs, paraphernalia or money.
The aim of the prosecution will be to show both agreement between the parties and criminal intent.
Why would you need a defence solicitor when you are being investigated for a conspiracy offence?
Facing charges for conspiracy can be a daunting time – understanding the implications for you and your life will be of primary concern. It can be particularly difficult to understand the complicated web of evidential factors on which your conspiracy case is based on and how your supposed role fits into the case.
Specialist defence solicitors can offer a wealth of advantages to an individual who may be facing a charge of conspiracy. Reeds’ experience and expertise in this area can help alleviate your concerns, help you understand the process ahead and untangle that web of evidence, so you fully understand the nature of the case you are facing and are able to provide clear instructions that demonstrate your innocence or diminished role.
Reeds’ solicitors will be able to accompany you to police station interviews, advise you regarding bail conditions or make representations on your behalf if necessary. We can provide expert advice at all stages of the investigation and provide seamless progression if the investigation results in a charge. At Court, we carefully scrutinise evidence to look for inconsistencies and errors in the Prosecution in evidence to undermine the Conspiracy allegation.
Reeds has an outstanding reputation in criminal defence and can provide specialist legal representation and knowledge throughout any potential Crown Court trial, including exploiting our established relationships with talented senior barristers or professional experts as required. We can provide advice on potential sentencing and plea options, every step of the way and ensure you are aware of all options available to you.
What are the most common defences to a charge of conspiracy?
As with all criminal charges, the Prosecution has the burden of proof to convince the Judge or jury that the offence has been committed ‘beyond reasonable doubt’.
Any potential defences available will be dependent on the specific facts of the case however in general terms, defence arguments can be built on:
Lack of Agreement: Is it possible to argue that there was no agreement between the parties to undertake the activity in question? Agreement does not necessarily need to be formally written and can be inferred from conduct or communications (including messages over social media). Careful scrutiny of actions, conversations and conduct should be undertaken to consider whether there was a ‘meeting of minds’ between 2 or more people to commit the offence and whether there was actual knowledge of the agreement itself. Perhaps there were differing understanding to the course of action to be taken between the parties, or the discussions could be considered vague or ‘boasting’ with no aim of agreeing to specific actions. Or possibly there was agreement to an alternative offence than that has been charged.
Lack of Intent: Can it be proven that there was no intent to commit the crime in question and that the discussions or plan were merely theoretical or exploratory? Where a party is aware of the discussion or plan, but doesn’t actively engage in conversations, it will be difficult to prove intent, for example, if a person is a member of a WhatsApp group chat with discusses the plan but does not participate in the conversation themselves.
Withdrawal of Intent or Agreement: Was the original intent or agreement to be involved in the criminal offence subsequently withdrawn? The defence would be mindful to consider whether a party overtly left the group which intended to carry out the plan in advance and did not subsequently rejoin or whether they actively disclosed the plan to the police in order to alert them to the fact an offence was to take place.
Ultimately a defence advocate would be looking to nullify any of the specific elements of the offence.
Additionally, a person is not liable under the offence of conspiracy, under s.2 of the Criminal Law Act 1977 if:
- They are an intended victim of the offence(s);
- The other person with whom the agreement has been made is
- His spouse or civil partner;
- A personal under the age of criminal responsibility; or
- An intended victim of the offence(s).
- They are under the age of criminal responsibility (by virtue of s.50 of the Children and Young Persons Act 1933)
In respect of the age of criminal responsibility, this would be a person under the age of 10.
It should also be noted that protection is not offered to a spouse where they enter into the agreement in the knowledge that others, aside from their partner, are involved.
What is the most relevant case law relating to Conspiracy?
The following cases give useful context as to how the Courts in England and Wales have interpreted the law of conspiracy in specific scenarios:
R v Anderson [1986] AC 27 (HL) – This case is often cited as the most foundational when considering the mens rea of conspiracy. It held that a person may be guilty of conspiracy even if he does not intend the plan to succeed, as long as they were aware of an agreement being made.
R v Chrastny (Charlotte Barbara)(No.1) [1991] 1 W.L.R. 1385 – the case considered ‘agreement’ and whether this can be inferred by a persons actions. It held that if a wife, knowing that her husband was involved with others in a conspiracy to commit an unlawful act, agreed with him that she would join the conspiracy and play her part, she thereby conspired with him and those others.
R v Siracusa [1990] 90 Cr App R 340 – the case established that a person may be guilty of conspiracy even if they had no physical involvement in the criminal activity and only played an organisational role without any direct participation in the commission of the offence.
R vs Jogee [2016] UKSC 8 – the case considered ‘intent’ in relation to a defendant being a secondary party to a crime, i.e. they didn’t commit the crime themselves but had an awareness that the crime will be committed, also known as ‘foresight’. Although this case is dealing primarily with the offence of ‘joint enterprise’ which can be distinguished from conspiracy, it no doubt provides useful precedent when considering defendants liability, in cases where they ultimately did not partake in the actual commission of the offence itself.
Reeds’ Real World Case Examples involving drug conspiracy charges
The first question to consider in any conspiracy is whether there is any evidence of the underlying offence.
R V VH – Distinguishing client from a conspiracy – Not Guilty
In the case of VH, our client was prosecuted along with 8 others for conspiring to supply class A drugs and converting criminal property. Two of the defendants pleaded guilty to conspiring class A drugs. There was a substantial amount of evidence to say that they did so. However, there was no evidence that our client had supplied any drugs and, in fact, it was not the prosecution case that he did so; rather the prosecution asserted that he had done so by laundering the proceeds of the supplies. Whilst our client accepted that he knew the defendants well, there was no evidence that any monies that he received were in fact the proceeds of criminal conduct. Our client was acquitted of both offences.
R V RS – Lack of Knowledge in the Conspiracy – Not Guilty
In other instances, where there is evidence that the underlying offence of conspiracy is made out, the question to consider is whether there is evidence that the defendant was party to that conspiracy.
In the case of RS, our client ran a business which supplied tablet presses. An individual ordered a tablet press which our client delivered to an address in Liverpool. Unbeknownst to him, the individual who had placed the order was under police surveillance and, on making delivery of the product to a set of business premises, the police raided the premises arresting our client and 12 others. All those arrested were prosecuted for conspiring to produce heroin, cocaine and TFMPP on an industrial scale. Our client was acquitted after trial on the basis that whilst he had physically undertaken an act which was intended by others to further the conspiracy, our client had no knowledge that this was so.
R V KS – Different Crime and No Conspiracy – Alternative Plea Deal – Suspended Sentence
In some instances, there will be evidence to demonstrate that the defendant was party to a conspiracy to commit a crime, but it was of a different nature to that asserted by the prosecution.
In the case of KS, the prosecution alleged that a relative of our client was a very significant class A drug dealer. There was evidence that she had transferred monies which stemmed from his illegal activity. She accepted that she suspected that the money stemmed from unlawful conduct but not from the supply of class A drugs. She was acquitted of conspiring to supply class A drugs. She pleaded guilty to transferring criminal property but on a limited basis and received a suspended sentence.
R V JM – Wrong Drugs / No Conspiracy for Class A – Not Guilty
In the case of JM, our client was prosecuted alongside 9 others for conspiring to supply cocaine. Our client accepted that he was involved in the supply of drugs but the drugs he received were cannabis rather than cocaine. He was acquitted of conspiring to supply cocaine at trial.
R V DS – Limited Role – Plea Deal
There are also cases where a defendant accepts that he is guilty of the conspiracy alleged but not to the extent alleged by the prosecution. It is often possible to challenge either the size of the conspiracy alleged by the prosecution or the role that a defendant played within it.
In the case of DS, our client was accused of playing a leading role in a conspiracy to supply 147.5kg cocaine and 80kg heroin. The case involved Encrochat evidence. We were able to demonstrate that many of the messages sent by our client were fanciful and involved a significant degree of exaggeration with a view to inflating his status within the drugs trade. We were also able to show from the evidence that he worked under the direction of others higher up in the conspiracy. He was sentenced on the basis of having played a significant role in a conspiracy to supply 19kg cocaine and 8kg heroin (200kg of class A drugs less than had been alleged by the prosecution).
R V AG – Limited Role – Successful Newton Hearing
In the case of AG, our client was accused of exporting various class A drugs by DHL to the USA and Australia in kilogram quantities. These were disguised as bath salts. A number of the packages were seized by customs in transit. Police investigating this matter also seized 10kg MDMA from an address searched as part of the investigation. The prosecution asserted that our client was the head of the conspiracy. His position was that he was an employee and was only involved in packaging the drugs. As a result of evidence obtained by the defence, the prosecution dropped a number of charges a month before trial. Our client had pleaded guilty to other offences on a limited basis which was not accepted by the prosecution. A Newton Hearing took place to determine whether he should be sentenced on his basis of plea or on the basis of the prosecution case. The Judge found in favour of our client.
R V RB – Basis of Plea – Lesser Sentence Received
Then there are cases where a defendant might well be party to the precise conspiracy alleged by the prosecution, but where it is possible to persuade a court to sentence the defendant for participating only in a discreet part of it.
In the case RB, our client was prosecuted alongside others for conspiring to supply class A drugs. The prosecution asserted that this was the largest cocaine conspiracy (with a value of £53 million) ever prosecuted in Cumbria. There was no doubt that the overarching conspiracy was a substantial one. However, we were able to demonstrate from the evidence that our client was a customer of his co-conspirators who orchestrated the larger enterprise. The Judge sentenced him for playing a leading role in the conspiracy but only on the basis of his own much smaller enterprise. He received a sentence within the sentencing guidelines based on an indicative figure of 5kg cocaine to reflect the distinction between him and his co-defendants.
Judge sentenced him for playing a leading role in the conspiracy but only on the basis of his own much smaller enterprise. He received a sentence within the sentencing guidelines based on an indicative figure of 5kg cocaine to reflect the distinction between him and his co-defendants.
If you would like advice on any of the issues raised in this article, contact us today by calling 0333 240 7373, email us at [email protected], or use our contact form.