Archive for December, 2019

Conspiracy law, class and society Part 14: attempted reform

Attempted Reform

On Second Reading, my hon. friends and I thought this was a diabolically awful Bill and we voted against it. Since then some improvements have been made and it is now no more than a devilishly awful one (Ian Mikardo, during the third reading of the Criminal Law Bill).

  • 19th Century Reforms

Like the other ‘inchoate’, or preliminary offences of attempt and incitement, conspiracy escaped the Benthamite-inspired reforms of criminal law during the 19th century. In 1861, the work of the reformers culminated in the passing of seven major consolidating statutes. Liberal jurists had argued for the separation of the judiciary from the legislature, and despite strong opposition from the judges themselves, the 1861 legislation effectively limited the judicial role to that of interpretation so far as most substantive offences were concerned. The statutes did not expressly repeal offences which remained uncodified and conspiracy, as one of those offences, remained in the hands of the judges, almost entirely outside Parliamentary control. We have seen how the judges were by no means slow to grasp the opportunity to develop conspiracy in the areas of Irish, ‘political’, and trade union trials.

Conspiracy did not entirely escape the reforms: Section 4 of the Offences against the Person Act 1861 provided that:

All persons who shall conspire, confederate and agree to murder any person, whether he be a subject f Her Majesty or not, and whether he be within the Queen’s dominions or not, shall be guilty of a misdemeanour and shall be liable to imprisonment for any term not more than ten years.

This rule was a direct result of the acquittal of Bernard on a charge of conspiring to murder Napoleon III after a trial in which doubts were expressed as to whether an alien could be charged in England with conspiracy to commit a crime abroad. It resulted in the absurdity that, until 1977, a plot to damage property, to trespass or to corrupt the public morals could be punished with a 30 or 40-year sentence (since the judges had unlimited sentencing power in common law conspiracy trials) whereas an agreement to murder was subject to a ten-year maximum.

Other 19th century statutes of marginal relevance to conspiracy were the Conspiracy and Protection of Property Act 1875, passed as a result of trade union agitation, which limited liability in the area of trade disputes, and the Explosive Substances Act 1883, which replaced seditious conspiracy with a statutory charge of conspiring to cause explosions.

  • The Law Commission

The next major reforms of criminal law came in the 1960s, after Harold Wilson’s Labour government announced its intention to codify the whole of the English Legal System. The Law Commission, set up to achieve this aim, published seven Reports on conspiracy between 1973 and 1977. The first recommended that conspiracy should be limited to criminal offences. The next proposed the creation of new criminal trespass offences to replace Hailsham’s common law conspiracy to trespass. The fourth stated the Commissioners’ view that conspiracy to corrupt public morals and to outrage public decency should be abolished. The final, major Report, which included a draft Bill, confirmed the earlier view that only agreements to commit offences should be punishable as conspiracies, and urged that this should be implemented as soon as possible. With regard to punishments, the Commissioners, who comprised a judge, two barristers, a solicitor and a law professor, advised that judicial sentencing power should be curbed, and set out maximum penalties depending upon the seriousness of the crime agreed to be committed.

In two areas, no change was proposed: first, it was stated that since English law contains no general ‘fraud’ offence, conspiracy to defraud should be retained. Second, the Commission was silent on the question of evidence in conspiracy trials. The Commissioners might respond to this with the reply that their concern was solely with substantive matters, and that the law of evidence was outside the scope of their work. One might respond that, to the person convicted of conspiracy, the distinction between substance and evidence may appear more that a little academic.

  • Evidence

There is no doubt that prosecuting counsel in the past have abused the whole business of conspiracy and have put it in when substantive offences were clearly available on the evidence and there was no reason to put in a conspiracy charge, but they have put it in because they can get in hearsay evidence which otherwise would not be admissible and because it tends to magnify the possibility of punishment and to get the case into the higher courts at a much more serious level.

A major criticism of conspiracy law is that, when the charge is brought, the rules of the game change in favour of the prosecution. Over the centuries a body of special rules of evidence has been built up, which are peculiar to conspiracy trials. The Irish and Chartist cases demonstrate the extent to which political trials, heard at a time when judges were prepared to admit that trials could be political, have contributed a special body of evidential and procedural rules to the present system. In Pritt’s view:

The proof of conspiracy is made easier by the provision of the law of evidence (again, common law) that so long as there is any evidence, however tenuous, from which the agreement might be inferred, the acts and words of any of the alleged conspirators, alleged to have been done or spoken in pursuance of the conspiracy, are admissible in evidence against all the others, on the footing that they are all agents of one another (although, at the time when the evidence is admitted, the jury has not found that there was an agreement – and so some agency – as alleged).

The rule against hearsay, described by Glanville Williams as ‘one of the best known rules of law as well as one of its most intricate professional mysteries’, is all but abandoned in conspiracy trials. An early example is Shellard (the Monmouthshire Chartists) where evidence of someone other than the accused having told people to go to a meeting was admitted against the accused on the basis that all the acts in question were part of one transaction. Some academics have argued that this is not really a special exception to the rule, but forms an example of the doctrines of agency. This attempt to rationalise the relaxation of evidential requirements in conspiracy trials may be traced to 19th century cases like Duffield where Mr Justice Erle was keen to introduce the concept of agency as a means of admitting hearsay evidence against trade unionists.

  • Proof of Agreement

It is extremely difficult for the prosecution to prove conspiracy according to the normal rules of evidence, because direct evidence of an agreement is rarely available. This has led to the development of the doctrine of inference. The judges have repeatedly declared that, so far as proof goes, conspiracy is generally to be inferred from the acts of the parties carried out in pursuance of their agreement. Prosecution strategy is generally aimed at establishing that the accused acted in a certain way and in asserting that such behaviour could only have arisen as the result of a plan of action. In this way, proof of conspiracy is actually easier than proof of other offences. One example is Hunt, where Mr Justice Bayley directed the jury that if

…the circumstances were such that they could not have occurred except in pursuance of a previous plan between the parties, then that implies that there must have been such a plan, and would warrant the conclusion of conspiracy. In this way, standards of proof have been relaxed to such an extent that is has been said that a conspiracy is easier to prove than a normal commercial contract – in the words of prosecuting counsel at the trial of the Shrewsbury Three: ‘…it could be done with a nod or a wink.’

The Law Commission was silent on this point. In fact, the only comment relevant to rules of evidence was the view stated in its 76th report that the reason for retaining the offence of conspiracy is to enable the criminal law to intervene at an early stage before a contemplated crime has actually been committed. The Commissioners felt that the necessity for proof of an agreement was a sufficient safeguard against the danger of punishing conduct too far removed from an actual crime. They did not state an opinion as to the methods of establishing this proof. Their statements take no account of the fact that most conspiracy charges, far from enabling the law to intervene at an early stage and nip criminal organisations in the bud, are normally preferred after the agreed offence has been committed. One may cite, as leading examples, Shaw (conspiracy to corrupt public morals after publication of Ladies’ Directory); Kamara (conspiracy to trespass after occupation of Sierra Leone High Commission) and the Angry Brigade (conspiracy to cause explosions after series of explosions). One of the great myths of English law, comparable with the myths of judicial neutrality, the separation of powers and an unarmed police force, is the fictional assertion that conspiracy has an essentially ‘preventive’ nature. As a general rule, and certainly in the great majority of cases decided since 1960, conspiracy counts have been tacked on by the prosecution because the relaxation of rules of evidence makes a conviction more likely and increases judicial sentencing power. As the Haldane Society pointed out, no truly comprehensive reform of conspiracy law is possible without a thorough examination of the rules of evidence associated with it.

  • The Criminal Law Bill

This Bill entered Parliament in its draft form as set out by the Law Commission. It was advertised to the public as a far-reaching measure for the reform of conspiracy law, to increase the penalties for football hooliganism, and to protect holidaymakers whose homes might be taken over by squatters. In reality, it contained a marginal change in conspiracy, measures to criminalise trespass and an onslaught on the right to trial by jury on purely financial grounds.

The paltry reforms offered, which amount to no more than a correction of the most crass of judicial innovations in this field, will probably be offered as a liberal balance to the sterner medicine of other sections.

Even these paltry reforms received such a Parliamentary mauling that the final result totally refuted the views of those who thought that analyses of the history of conspiracy would become irrelevant, a mere pre-history, when the Bill became law.

First, the government decided not to abolish conspiracy to corrupt public morals, pending an examination of the whole of the law relating to obscenity by a Departmental Committee. This decision was generally criticised during the Bill’s second reading, and in the Upper House Lord Gardiner, having described the offence as ‘a great blot on our legal system’, stressed that the Bill thus excluded one of the first and most definite recommendations of the Law Commission.

Second, the draft Bill had included a clause defining the mens reas of conspiracy – the element of intention which the prosecution would have to prove. This was taken out during the Committee Stage in the Lords, when a group of senior judges who had themselves been directly involved in making the law during the 1960s-1970s excluded the clause on the grounds of complexity and obscurity. In the words of Lord Morris of Borth-y-Gest:

If you wanted to set a question to judges, Circuit Judges, recorders, magistrates, and justices’ clerks, if you wanted to test their skill, you might put that subsection before them and say to them ‘What does it mean?’ I venture to suggest that most of them would be puzzled. I can only feel that here is being imposed upon the legal profession and the public moments of mental agony, torment and anguish in trying to understand what these words mean.

Lord Edmund Davies gave the clause a similar description:

…so obscure and difficult as to be really a trap to the tired and overworked judge, towards the end of the day, who is called upon to direct a jury.

The actual words complained of were as follows: ‘…for a person to be guilty of conspiracy…both he and the other persons with whom he agrees must intend to bring about any consequence which is an element of that offence…’ Whilst not the clearest of English, this clause is certainly less obscure than much current legislation. Taxation statutes, in particular, are advantageously meaningless to those wealthy enough to employ specialist advisors. These views are notable because, in the first place, they take no account of the comprehension of the law by the accused: this follows the tradition of the English system that the person actually charged with a crime is not the central figure at the trial, and is only allowed to speak in very limited circumstances. Second, the composition of the Lords Committee deserves closer analysis. Morris (Lord Morris of Borth-y-Gest) had sat in judgement in both of the cases which established the existence of conspiracy to corrupt public morals, in with Simon (Viscount Simon of Glairsdale) had also played a part. Viscount Dilhorne, a Conservative MP from 1943 until 1962, had, during the 1970s, abolished public mischief, redefined conspiracy to defraud, and created the rule that English courts have jurisdiction if the evidence shows that a conspiracy, wherever formed, is still in existence when the accused come to England.

The other members of the Committee were Viscount Hailsham, the creator of conspiracy to trespass, Lord Elwyn-Jones, and Lord Edmund-Davies. All sat in judgement on the efforts of the Law Commission. When English judges are called upon to apply unpopular, repressive or patently absurd rules of law, it is not uncommon for them to assert that, if the law needs changing, it must be referred to Parliament. In the case of conspiracy, this meant that it was referred back to themselves as members of the Upper House. If this is a necessary consequence of the present composition of a non-elected upper chamber, then the arguments for drastic reforms are obvious, if the appearing of a democratic Parliamentary system is to be maintained.

Conspiracy Part 13: Conspiracy and the trade unions since 1920

Conspiracy and the Trade Unions since 1920

The threat of industrial strife is almost as damaging to the welfare of the nation as the threat of war (A.F. Wilcox, The Decision to Prosecute, 1900).

This comment by a former Chief Constable shows how seriously industrial disputes are regarded by English agencies of law enforcement. One of the means by which the threat has been countered is the law of conspiracy: this chapter aims to show that the function of that law is essentially the same today as it has been for at least 200 years.

Between 1920 and 1964, trade disputes were, as a rule, kept out of both civil and criminal courts. There are one or two exceptions, but the general impression gained from the Law Reports is that litigation, and adjudication, in the industrial context, was extremely rare in the first half of the 20th Century. Just as in Ireland, and in the area of overtly ‘political’ cases, there has ben no consistently chronological development of conspiracy as it affects trade unions, but rather to distinct phases of intense activity. This phenomenon is confirmed by O’Higgins and Partington’s limited statistical survey of decisions by the higher courts in cases concerning industrial conflict between 1871 and 1969. Their main conclusion was that the survey revealed less evidence of judicial bias than might have been expected. They also commented:

Why is it that there are so few cases coming before the courts? One may especially comment here on the paucity of cases in the 1920s and ‘30s even though this was a period of exceptional industrial unrest. Part of the explanation may lie in the belief common to both sides of industry that lawyers and the courts are best kept out of the field of industrial relations. In addition, there is a widespread belief among trade unionists that the law is weighted against them.

After cases like Taff Vale, it is perhaps hardly surprising that trade unionists lost confidence in the neutrality of the courts. One might add that, while this lack of confidence helps to explain the paucity of civil cases, it does not apply to criminal prosecutions where there is no question of choice by the defendant. Another point is that, after the passing of the Trade Disputes Act 1906, which gave the unions immunity from liability in tort, judges were more ready to accept their legitimacy and battles between employer and employee were less often fought out in the courtroom. But the main question remains: if the growth of conspiracy law reflects the strength of movements against the state, and can be seen as a response to threats, real or imagined, by dissident groups, then why are the Law Reports not full of conspiracy cases decided during the First World War, the General Strike, the depression of the 1930s and the Second World War?

  • Conspiracy and the Great 20th Century Emergencies

So far as the First World War was concerned, the government reacted to industrial disputes not with common law doctrines but with the Defence of the Realm Acts 1914 and 1915, which gave the King in Council ‘such powers as may be necessary for the efficient prosecution of the war’. This meant the imposition of a comprehensive system of state control over industry an agriculture, with the extension of the jurisdiction of courts-martial, and the effective supremacy of military law. As in Ireland, where the Easter Rising showed that the English state would drop the mask of legitimacy and invoke military reprisals when a real threat developed, so the British mainland was governed almost exclusively by statutory powers from 1914 until 1919. There was no room for conspiracy law.

The General Strike of 1926 was not without its conspiracy trials: we have seen how the leadership of the Communist Party was effectively removed from the preparatory stages of the strike by a prosecution for seditious conspiracy. The General Strike itself was declared illegal in Parliament by Sir John Simon, a former Attorney-General, and by Mr Justice Astbury. Astbury, who had been appointed to the Bench during Simon’s period of office as Solicitor-General, issued an injunction preventing the Firemens’ Union from joining the Strike, in a case described by Goodhart as ‘an off-hand judgement given in a case where the defendants were not represented by counsel’. Astbury ruled:

The so-called General Strike called by the TUC council is illegal, and persons inciting or taking part in it are not protected by the Trade Disputes Act 1906. No trade dispute has been alleged or shown to exist in any of the unions affected, except in the miners’ case, and no trade dispute does or can exist between the TUC on the one hand and the Government and Nation on the other.

This meant that, in theory, the leaders of all the unions involved could be made liable for damages in conspiracy, but Astbury’s judgement was refuted by Goodhart in an essay published in 1927. In his view, the General Strike was clearly a trade dispute – any coercion of the government was merely incidental – and if Astbury was implying that the Strike was criminal, then it could only be so under the doctrines of seditious conspiracy. The failure of the Strike was not followed by a mass of prosecutions, so we may perhaps assume that prosecutors felt that Goodhart’s view was more accurate than Astbury’s. Half a century later, Lord Denning followed Astbury: he prevented the steelworkers’ union from instructing its members employed in the private sector to strike, on the basis that the steel strike was not a trade dispute but a political matter, aimed at putting pressure on the government. The House of Lords took a similar view to Goodhart and overruled Denning’s judgement.

In legal terms, one result of the General Strikers’ defeat was the passing of the Trade Disputes and Trade Union Act 1927 which outlawed sympathetic and political strikes. This statute remained in force throughout the depression years of the 1930s, and may help to explain the dearth of conspiracy cases, both civil and criminal, during that period. During the Second World War, the Act was supplemented by the Emergency Powers (Defence) Acts which gave the government power to issue regulations, giving it complete control over persons and property. Defence Regulation 1AA made it an indictable offence to ‘instigate or incite’ a stoppage of essential work: Regulation 58A gave enormous powers to the Minister of Labour (Ernest Bevin) and prohibited all strikes unless 21-days’ notice was given to the ministry. With statutory powers of this magnitude, conspiracy law became irrelevant. Kahn-Freund has pointed out that the really important feature of the emergency legislation was its disappearance soon after the cessation of hostilities. In October 1948 an unofficial dock strike started in Bristol, in support of Canadian seamen who were in dispute with their employers. Troops were used to move cargoes from the docks but no prosecutions were brought under Defence Regulations still in force – arguably because the use of such criminal sanctions could have led to a national official strike. Two years later, when the government did attempt to apply the Regulations, they were convincingly defeated by striking gasworkers. We may perhaps conclude that the English state would prefer to use ‘legitimate’ common law sanctions whenever possible in place of emergency powers, and that the repeal of such powers is a tribute to the strength and determination of the trade union movement.

  • Developments in Civil Liability

The great civil trials involving trade unionists did not entirely disappear during the 1920s and ‘30s. In Reynolds v Shipping Federation the judiciary accepted the concept of the closed shop and expressed approval of a system of collective bargaining between unions and employers. The shipowners’ federation, comprising the bulk of owners of shipping in the UK, had agreed with the seamen’s union that they would only employ members of that union on their ships. A member of another union was refused employment as a greaser, and he sued the Federation for conspiracy. It was held that, since the agreement was entered into not from a malicious desire to inflict loss on an individual or class of individuals, but from a desire to advance the business interests of employers and employed alike, by maintaining the advantages of collective bargaining and control, it was not unlawful and no action for conspiracy was maintainable.

Mr Justice Sargant showed how dramatic the change in judicial attitudes had been by declaring that

…for many years past no-one has questioned the right of a trade union to insist, if they are strong enough to do so, under penalty of a strike, that an employer shall employ none but members of the trade union…the result of any such effective combination of workmen has been to impose on the other workmen in the trade the necessity of joining the union as a condition of obtaining employment. Here, the employers, instead of being forced against their wills into employing union men only, have recognised that advantages may arise from adopting such a course voluntarily, and have accordingly made an agreement with the trade union to that effect. The incidental result to the other workmen in the trade is the same as if the employers had yielded against their wills instead of agreeing voluntarily. But I fail to see that workmen who are unwilling to join the union have any greater reason to complain of a violation of their legal rights in the second case than in the first.

Conspiracy law, class and society Part 12: public mischief

Public Morality

One of the first major cases in the recent resurgence of conspiracy was DPP v Shaw, where the publisher of the Ladies Directory – a list of prostitutes – was convicted of conspiracy to corrupt public morals. In the House of Lords it was argued on behalf of Shaw that new offense in relation to public morals could not be created by the courts. Rejecting this argument, Viscount Simmonds delivered his famous judgement that

I entertain no doubt that there remains in the courts a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order, but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for…it matters little what label is given to the offending act…to one of your lordships it may appear an affront to public decency, to another it will seem a corruption of public morals. Yet others may deem it a public mischief. I now assert that there is a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.

This statement, which both created a new offence and pointed out the impossibility of classifying it according to existing rules, finally laid to rest the argument that English judges do not make law. It is probably one of the most criticised decisions of recent times: in the Lords itself, the dissenting judgement of Lord Reid shows that the judges were uneasy about their power to extend conspiracy. One example of the academic outrage which followed Shaw is the comment of Fitzgerald that the case ran counter to two cardinal principles of free and democratic government. First, the idea of the rule of law, based on the demand that the citizen should be ruled by laws and not by the whims of men; and second the principle of legality, that only existing breaches of law should be punishable – the citizen should be able to know in advance what conduct is permitted and what is forbidden. Fitzgerald also points out that when Parliament creates a crime, its effect is for the future only; but when the judges make a law, their creation is retrospective not merely to the time of the facts of the case, but forever. The law of conspiracy is riddled with judicial assertions that the function of the courts is to state the law as it always has been, if not as far back as the origin of the universe, then certainly to Angle-Saxon times.

The name of Jeremy Bentham was also invoked by critics of the Shaw decision, who quoted the master of utilitarianism as follows:

It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait until he does it and then beat him. This is the way you make laws for your dog and this is the way the judges make laws for you and me.

The extent of academic and juristic influence upon criminal prosecutors during the last two decades is best illustrated by the fact that the Shaw case led to a spate of more than 30 public morality prosecutions between 1962 and 1972. These ranged from ‘blue film’ cases to the supply of heroin. But the most significant ‘morality’ conspiracy cases were those brought against the expanding underground press of the early 1970s, characterised by Robertson as ‘assuming the proportions of a cultural collision’.

In Knuller the editors of IT newspapers faced conspiracy charges for publishing homosexual adverts. Lord Reid’s judgement shows that he did not regard himself as bound by his statement in Shaw that there was no such offence as conspiracy to corrupt the public morals. In the interests of certainty, Shaw must be upheld and the convictions of the editors affirmed. This was despite the fact that in 1964 Sir Peter Rawlinson, then Solicitor-General in a Conservative government, had assured the House of Commons that conspiracy charges would never again be used to circumvent the provisions of the Obscene Publications Act 1959. In O’Higgins; view, ‘if one inquires why this odd offence of conspiring to corrupt the public morals is used instead of the offence of publishing an obscene magazine, the answer is probably that this is done in order to deprive the accused of the defence to which they would, under the Obscene Publications Act, be entitled’. This defence – that the material was published for the public good – becomes irrelevant when conspiracy charges are brought. The value of the Rawlinson assurance was revealed by the Lords’ statement that it had not been brought to the attention of the judges. It should also be noted that, in 1967, homosexual acts had been partially legalised. Lord Reid dealt with this by pointing out that there was a material difference between exempting conduct from criminal penalties and making it lawful in the full sense: again, conspiracy law was not affected.

Another famous trial involving the alternative press and those who advocated alternative forms of society was that of Anderson and others for conspiring to corrupt the public morals of publishing Oz Schoolkids Issue which allegedly contained obscene articles, cartoons, drawings, and illustrations. Again, conspiracy was used to avoid the complications of obscenity statutes. The verdict of not guilty showed yet again that the only real defence against conspiracy as repression is the common-sense of twelve jurors.

If these prosecutions were designed, as has been suggested, to suppress the emergence during the early 1970s of an alternative society and an alternative morality, their success may be assumed from the fact that the underground press haw now disappeared, but conspiracy to corrupt public morals is still with us. Despite the anguished criticisms voiced by academics, despite years of debate by the Law Commission which resulted in a clear recommendation for abolition, despite the views of members of Commons and Lords that the offence is ‘a blot on our penal system’, it remains available for the use of prosecutors who can prove no other charge.