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In the criminal law, a conspiracy is an agreement between 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.

Contents 1 Conspiracy in English law 1.1 Common law residue 1.1.1 Conspiracy to defraud 1.1.2 Conspiracy to corrupt public morals or to outrage public decency 1.2 Statutory conspiracy 1.2.1 Exceptions 1.2.2 Elements of the offence 1.2.3 Things said or done by one conspirator 2 Conspiracy in the United States 3 Conspiracy Against Rights 4 Conspiracy and international law 5 References

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 two:

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.

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.

This offence was created as a result of the Law Commission's recommendations in their Report, Conspiracy and Criminal Law Reform, 1976, Law Com No 76. This was part of the Commission's programme of codification of the criminal law. The eventual aim was to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in silly ways which might offend the principle of certainty. There was an additional problem that it could be a criminal conspiracy at common law to engage in conduct which was not in itself a criminal offence: see Law Com No 76, para 1.7. This was a major mischief at which the 1977 Act was aimed, although it retained (as a temporary measure) the convenient concept of a common law conspiracy to defraud: see Law Com No 76, paras 1.9 and 1.16. Henceforward it would only be an offence to agree to engage in a course of conduct which was itself a criminal offence.

Section 1(1) of the 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."

• Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.
• Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:

(a) a spouse or civil partner; [5]

(b) a person under the age of criminal responsibility; and

(c) an intended victim of that offence.

Under conspiracy law, the cosnpirators can be guilty even if they do not know the identity of the other members of the conspiracy. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995), aff'd., 124 F.3d 206 (7th Cir. 1997).

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).

The so-called Wharton's rule (also known as "Concert of Action Rule") regarding conspiracies is relatively simple: Unless the statute specifies otherwise, when two people are required to commit a crime, such as gambling or prostitution, there can be no charge of conspiracy where only two people are involved. The reasoning behind this rule, which has been enacted in many states, is that conspiracies, by their very nature, bring together individuals with different resources and abilities. This group action is dangerous. However, where there are only two people involved in a crime that requires two people to commit it, there are no concerted group action. In order to prosecute under gambling or prostitution as a conspiracy, most states require more than two people involved.

LORD STEYN in R v Hayter [2005] UKHL 6 (03 February 2005) at paragraph 25 referred to: The rule about confessions is subject to exceptions. Keane, The Modern Law of Evidence 5th ed., (2000) p 385–386, explains:

"In two exceptional situations, a confession may be admitted not only as evidence against its maker but also as evidence against a co-accused implicated thereby. The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfies were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it.

Conspiracy has been defined in the US 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. A conspiracy does not need to have been planned in secret in order to meet the definition of the crime. 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.

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 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. [6]

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.

This statute is the civil rights conspiracy statute which makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same) and further makes it unlawful for two or more persons to go in disguise on the highway or premises of another person with intent to prevent or hinder his or her free exercise or enjoyment of such rights. Depending upon the circumstances of the crime, and any resulting injury, the offense is punishable by a range of fines and/or imprisonment for any term of years up to life, or the death penalty.^[1]

Title 18, U.S.C., Section 241 - "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;...They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."^[2]

Brothers JACOB ALBERT LASKEY, age 25, and GABRIEL DOYLE LASKEY, age 21, both self-avowed white supremacists, pled guilty in U.S. District Court to charges of conspiracy to deprive people of their civil rights and intentionally damaging religious property. Both admitted to intent to commit acts of violence and destruction against Jews, African-Americans, and members of other ethnic and racial groups whenever such opportunities arose. In an attack on October 25, 2002, the brothers conspired with three other persons to intimidate Jewish persons at the Temple Beth Israel in Eugene, Oregon. In a vehicle driven by Jacob Laskey, the five men traveled at night to the temple where they then threw swastika-etched rocks breaking stained glass windows while a religious service attended by 80 members of the temple was ongoing inside. The defendants acknowledged in court they violated the victims' rights to use, hold, and occupy religious real property free from discrimination on account of religion. The five men traveled to Temple Beth Israel at night in a vehicle driven by JACOB LASKEY. They then threw swastika-etched rocks, breaking two stained glass windows at the temple, while 80 members of the temple were inside attending a Jewish religious service. After throwing the rocks, the men ran to the vehicle and fled the scene. The defendants acknowledged in court that by throwing these rocks, they violated the victims' rights to use, hold, and occupy religious real property free from discrimination on account of religion. JACOB LASKEY further admitted to obstruction of justice following the attack, by seeking to corruptly persuade a witness to withhold truthful information and not to appear at an official proceeding concerning the investigation of the attack against the Temple Beth Israel. JACOB LASKEY also admitted intimidating or attempting to intimidate co-conspirator Jesse Baker to prevent Jesse Baker from communicating information related to commission of a federal offense to agents of the FBI or the federal grand jury investigating the Temple Beth Israel attack. JACOB LASKEY also admitted to soliciting Jesse Baker to kill potential witnesses and to call in a bomb threat to the Federal Courthouse in Eugene. JACOB LASKEY admitted additionally to Assault in the Third Degree, Battery Evincing Racial Prejudice, and being a felon in possession of a firearm having possessed a .45 caliber semi-automatic handgun and ammunition after he was convicted of two felony crimes.^[3]

Title 18, U.S.C., Section 1001 - False Statements or Entries Generally

This statute makes it a crime for a person acting under color of law, statute, ordinance, regulation or custom to falsify, conceal, or cover up material facts surrounding a civil rights investigation, or make false statements, representations, or writings to protect their careers and those of other co-conspirators.^[4]

Conspiracy law was used at the Nuremberg Trials for Nazi leadership who were charged with participating in a "conspiracy or common plan" to commit international crimes. This was controversial because conspiracy was not a part of the European civil law tradition. Nonetheless, the crime of conspiracy continued in international criminal justice, being incorporated into the international criminal laws against genocide.,

1. ^ Title 18, U.S.C., Section 241 - Conspiracy Against Rights [1]
2. ^ 18 USC 241 [2]
3. ^ Guilty Pleas In Federal Hate Crime Case White supremacists guilty of attacking a Jewish synagogue [3]
4. ^ Title 18, U.S.C., Section 1001 - False Statements or Entries Generally [4]

Fichtelberg, Aaron, "Conspiracy and International Criminal Justice" (2006) Criminal Law Forum Vol 17, No. 2.

Law Commission Report No 228 "Conspiracy To Defraud" (1994)

Smith, J. C. "Some Comments On The Law Commission's Report" (1995) CLR 209.