Conspiracy law, class and society Part 11: Public mischief

Public Mischief

The hundreds of decided cases which make up English conspiracy law have traditionally been classified into categories such as agreements to commit crimes, to commit torts and to induce breaches of contract. This classification has never been entirely successful because of the existence of a huge mass of authorities which do not fit in to authors’ schemes. Academic attitudes to these unclassifiable conspiracies has ranged from the ‘admittedly vague’ description of ‘acts which are either immoral or tending to the public mischief’, to ‘Agreements to do certain other acts which are not breaches of the law at all, but which nevertheless are outrageously immoral or are, in some way, extremely injurious to the public’.

The categorisation of conspiracy law is further complicated by the fact that judges and academics have used ‘public mischief’ to mean two different things. First, the concept appears as a specified criminal offence created and abolished within 40 years by the judiciary: second, in the wider sense adopted by Kenny which covers conspiracies to defraud, to pervert the course of justice, and to corrupt public morals. Much of this confusion arises from the attempts of authors to impose order where there is in fact none, save the power of the judiciary to extend the law. As Kenny concludes:

The history of our common law shows that the judiciary have not merely expanded it by interpretation of long-established rules, but also from time to time, when the facts of a case before them seemed to be such that it would appear proper for them to give rein to their personal feelings of indignation, have gone so far as to enlarge it by decisions which created new crimes for which there was neither previous precedent nor statutory authority.

The origins of public mischief can be traced to 1814 when it was held that an agreement to circulate false reports of the death of Napoleon, intending to cause a rise in the price of government securities, was an indictable conspiracy because it tended to defraud the public. There are no further reported decisions until 1910 when an accused person who had agreed to repay his bail sureties was convicted of conspiring to effect a public mischief. Twenty years later, the same offence was held to cover an agreement to forge documents in an attempt to gain admission to the Inner Temple. In 1933 Elizabeth Manley, who had made false complaints to the police, was convicted of public mischief (without conspiracy).

The crime the disappeared until 1954 when Newland and others, who had illegally imported pottery, were found guilty of conspiring to effect a public mischief. On appeal they argued that there was no such offense. Lord Goddard dismissed the appeal but warned of the dangers of extending public mischief: it might enable judges to declare new offences, which should be the business of the legislature. Goddard went on to state the right approach to public mischief, which was to regard it as part of the law of conspiracy. In the present case, ‘a conspiracy to defeat the clear intention and purpose of an Act of Parliament or to work to the prejudice of the state discloses an offence long known to the common law of this country.’ These declarations set the scene for the explosion of public mischief conspiracies during the 1960s and ‘70s.

An early example of this recent phase is Sharpe and Stringer, decided in 1957, where the officers of the Barnsley Co-Op were convicted of conspiracy after they had failed to inform the police of the shoplifting and embezzlement activities of one of their employees. The conspiracy charge was employed to get round one of the basic principles of English law – that no-one can be forced to make a statement to the police. The ‘right of silence’, which extends from the time of arrest right through to conviction, has faced a number of threats in recent years: in 1957 it was effectively torpedoed by conspiracy.

As we have seen, prosecutorial obsession with conspiracy led to ‘public mischief’ counts being added to the indictments against Irish defendants in the early 1970s, reaching a peak of absurdity in 1972 with the Aldershot Bomb Trial involving murder, firearms, explosives, and just in case all these failed, public mischief. In 1973 Hazell reported that the Director of Public Prosecutions, in response to a private enquiry, had told him that there had been sixteen convictions involving public mischief conspiracies since 1962: these included Twistleton-Wykeham-Fiennes, who had let off explosives in Castle Combe, Wiltshire, as a protest against a film company working there.

The doctrine reached its zenith with the decision in Kamara’s case. Lord Hailsham, educated and Oxford, son of a Lord Chancellor, leading Conservative Party politician – noted for having lumped together in his speeches ‘the war in Bangladesh, Cyprus, the Middle East, Black September, Black Power, the Angry Brigade, the Kennedy murders, Northern Ireland, bombs in Whitehall and the Old Bailey, the Welsh Language Society, the massacre in the Sudan, mugging in the tube, gas strikes, hospital strikes, go-slows, sit-ins, and the Icelandic cod war’ – held in the House of Lords that there was such an offence as conspiracy to trespass.

Kamara and eight others, from Sierra Leone, had agreed to demonstrate their opposition to the Sierra Leone government by occupying its High Commission in London. After the occupation they were all convicted of ‘conspiring together to enter as trespassers’. They appealed on the ground that the courts had never before been prepared to treat ‘simple’ trespass as an object of conspiracy and that trespass had never been regarded as an unlawful act within the traditional definition of the offence. In dismissing the appeals in the Court of Appeal, Lord Justice Lawton said that he was not making law but was declaring that there had always been an offence of conspiracy to trespass. In the House of Lords, Hailsham, who had said on another occasion that ‘the frustration of government by dissident minorities rather than by excessive authority is the greater threat to democracy’, was able to use the doctrines of public mischief to uphold the convictions. In his view the categories of public mischief could never be closed; it was always within his power to declare conduct criminal because it amounted to a public mischief.

On 20 November 1974, Viscount Dilhorne stated:

There is no separate and distinct class of conspiracy called conspiracy to effect a public mischief…I hope that in future such a vague expression as ‘public mischief’ will not be included in criminal charges. It introduces a wide measure of uncertainty and should not be a vehicle for the enlargement of the criminal law or a device to secure its extension to cover acts not previously thought to be criminal.

Thus his lordship not only closed the categories of public mischief eighteen months after Hailsham had asserted his infinite and eternal power to extend them, but he also abolished them entirely. This abolition relieved the Law Commission of the task of making recommendations as to the reform of public mischief conspiracies, but it did not mean that people who acted like Kamara and his associates could not in future be prosecuted. The new offence of criminal trespass, created by the Criminal Law Act 1977, contained an express reference to the occupation of diplomatic premises, and there could be conspiracy charges in respect of this: the Dilhorne abolition was one of form, not substance.