Conspiracy and Attempts

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

This project is complete. Our recommendations have been accepted but will not be implemented

This project reviewed the law governing the criminal liability of those who agree, or attempt, to commit offences.

The project

We published our report “Conspiracy and Attempts”, including a draft Bill, on 10 December 2009. The report follows our consultation paper, which we published on 10 October 2007. In our report we make recommendations on statutory conspiracy to:

• clarify the existing law in relation to agreement to engage in conduct and, where relevant, bring about the consequences of an offence which is the subject of the conspiracy
• make explicit the requirement of proof of intention that the conduct element and, where relevant, any consequence element should take place
• provide that where the substantive offence either requires no proof of fault in relation to a circumstance, or proof only of negligence (or an equivalent objectively determined state of mind such as unreasonable belief) the prosecution should have to show that the conspirators were reckless as to the circumstance element
• provide that where the substantive offence provides for a subjective fault requirement in relation to a circumstance element that the prosecution must show that the alleged conspirators had the same fault element as to circumstance on a charge of conspiracy
• provide for the abolition of the requirement for the Director of Public Prosecutions to give consent to initiate proceedings to prosecute a conspiracy to commit a summary offence
• provide for the abolition of the exemption from liability of spouses and civil partners who conspire with each other exclusively throughout the duration of the conspiracy
• provide for the abolition of the exemption from liability for a person who conspires exclusively with the intended victim of a conspiracy
• provide that the exemption from liability of a victim (D) of the conspiracy should be retained as long as the conspiracy is: (1) to commit an offence that exists wholly or in part to protect a particular category of persons, (2) D falls within that protected category, and (3) D is the person in respect of whom the offence agreed upon would have been committed
• provide a defence of acting reasonably to conspiracy which is consistent with the defence of acting reasonably in section 50 of the Serious Crime Act 2007
• create a body of rules on extra-territorial jurisdiction which would be broadly consistent with the rules for the inchoate offences in Part 2 of  the Serious Crime Act 2007.

The report also makes recommendations:

• as to the way in which conspiracy should be charged, and
• for the retention of the current exemption from liability for a person who conspires exclusively with a child under the age of criminal responsibility.

The report also sets out recommendations for rectifying certain aspects of the Criminal Attempts Act 1981 (for the offence of attempt). These aim to:

• allow the courts to convict a person of attempted murder if he or she deliberately failed to discharge a legal duty to another person with the intention of killing that person
• ensure that a person can be convicted of attempt if his or her intention to commit an offence was contingent on a condition, and
• clarify the fault element (culpable state of mind) which needs to be proved for a person to be guilty of attempt.