Defending large-scale conspiracies and Organised Crime by Seema Parikh, Partner in the Complex Crime Team at MPR Solicitors

Clients often do not really understand the meaning of “Conspiracy” but one can see the panic on their faces when the “C” word is used at charge at the police station and the automatic assumption that their case is far worse and more serious than it actually is. This article attempts to dispel many of the myths surrounding the mystical “Conspiracy” allegation and to instil some confidence that an allegation of Conspiracy can be successfully defended if your defence team are experienced in dealing with the law of conspiracy and the legal complexities and case preparation involved in major criminal investigations.

This article will concentrate on statutory conspiracy (rather than common law conspiracy) as this is the most commonly charged type of conspiracy and a favourite with the CPS.

So what does the law say about Conspiracy?

The offence of conspiracy to commit an offence under section 1 of the Criminal Law Act 1977 is established if a person agrees with another person(s) 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.

What this means is that just like it is a criminal offence to commit a robbery, it is a criminal offence for two or more persons to agree with another to commit that offence.

Elements of Conspiracy

The fundamental nature of conspiracy is the agreement. Conspiracy is an “incohate” offence which means that the offence lies in the agreement that is reached rather than what is actually done to carry out the agreement itself.

Agreement

A conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. When the parties to the conspiracy enter into the agreement the offence of conspiracy is complete. It is not necessary for any action to be performed in pursuance of it, Mulcahy v R (1868) LR 3 HL 306.

If no agreement is reached then a charge of conspiracy will fail. Once the agreement is made it is no defence to a charge of conspiracy that the agreement was never carried out, R v Thomson (1966) 50 Cr.App.R1. Even withdrawal from the agreement will only count towards mitigation, R v Gortat and Pirog [1973] Crim.L.R. 648.

There is no need to show that all the co-conspirators knew each others’ identity, only that they knew there were other parties to the agreement. So for instance, there may be 10 conspirators in total but X was only aware that there were others involved in the agreement and did not know their real names or the exact number of how many participants were involved in the agreement.

The agreement may extend to more than one objective:

If the allegation involves an agreement to commit two or more specific offences (as is often the case in conspiracy to defraud charges), it will be necessary for the Prosecution to prove that the agreement extended to all the offences alleged, as each offence will be an essential element of the conspiracy, R v Roberts [1998] 1 Cr.App.R.441

Parties to a conspiracy

A husband and wife or a partner cannot be guilty of a conspiracy if they are the only two parties to the agreement; you cannot conspire with a child or a person under the age of criminal responsibility if they are the only other party to the agreement; a person cannot conspire with the intended victim of the offence if the only other party to the conspiracy is the victim of the offence; a company can be convicted of a conspiracy although the company cannot conspire with a sole person responsible in the company and acting for the company for the offence charged, as they are treated as the same person.

What this means in practical terms and how does the Prosecution go about proving a conspiracy?

The Prosecution must show two things to prove a conspiracy:

There existed an agreement between two or more parties

That agreement was to commit an offence

Proving the agreement (what the Prosecution must do)

Conspirators do not usually sign a written agreement outlining the terms of the criminal act that they have agreed to pursue and therefore a Prosecutor would not be expected to adduce direct evidence of an agreement to commit a criminal act such a written contract between the conspirators. Instead, the case of R v Brisac [1803] 4 East 164, states that proof of the existance is a “matter of inference, deduced from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in common between them”. In a trial, a jury will be asked to infer the agreement from the alleged conduct of the co-conspirators. This could include telephone contact between the parties, a pattern of contact by telephone whether text messages, calls, emails, the frequency of the contact on key dates either just before or just after or during the actual commission of the offence; meetings between the parties on key dates; covert recordings obtained by audio probes in premises, vehicles, cell site data/analysis; the use of undercover officers or informants.

Disproving the agreement (what the defence should do)

There may well have been contact between some of the parties in a conspiracy and often the evidence is agreed but the inferences as to the nature of the contact are not. This is the crucial area that any defence team must tackle very carefully and with a degree of skill and expertise. Careful and proper analysis of all potential inferences must be considered and explanations or counter arguments advanced or the evidence challenged. There may be perfectly good and cogent reasons for the phone contact: the content of the phone calls can be disputed; the reasons for the meetings can be explained; cell site evidence can be challenged; the admissibility of covert recordings can be challenged or voice recognition may be at issue.

The conspirators must know what they are planning and have agreed to do. So if a defendant believes he is agreeing to take part in a money laundering conspiracy but in fact it is not money that is being laundered but conflict diamonds are being traded, then that defendant is not guilty of the conspiracy. The prosecution have to prove that the defendant was fully aware of the details of that specific conspiracy. Or, for example, if A and B agree to rob Bank X and enlist C but C believes he has agreed to rob Bank Z and provides the plans to Bank Z, C is not guilty of the conspiracy to rob Bank X even though C agreed with A and B to rob a bank.

Organised Crime Network (OCN)

Large-scale conspiracy cases often involve the investigation of what the Prosecution refer to as an OCN: an organised crime network. This usually involves long-term investigations into drug trafficking, large scale money laundering; human smuggling and gun running. These cases are largely investigated by SOCA and prosecuted by a specialist unit within the CPS. SOCA is well known for having larger budgets and resources to investigate and prosecute their cases. They have a particular method to their evidence gathering and often their investigations can encompass many months of surveillance. They also often use informant led evidence/intelligence to prosecute their cases which can be decisively dangerous and risky.

It is usually more difficult for the Prosecution to prove a conspiracy case against defendants than laying substantive charges instead. And yet, this is often the preferred route for most Prosecutors usually when a large amount of drugs are involved and more than one individual has been arrested. It very much depends on the facts of each case but sometimes a conspiracy charge can assist the prosecution in convicting some conspirators at the expense of others. In essence, it is a tactical game and strategy that is played out in the legal arena and it is for that crucial reason that the defence team should be experienced in legal stratagem and be prepared to hammer away at the Crown’s case and not allow their client to become a pawn in a tactical game of chess.

Often those individuals with very minor roles often not knowing the full details of the conspiracy or having no knowledge of the conspiracy at all are accused of being professional criminals can get caught up within a large scale conspiracy trial and are used as pawns by the Prosecution to adduce evidence against other top players within the conspiracy. This is where the little guy can fall flat if not properly defended by the right legal team. This can often to lead to undeserving long custodial sentences if convicted after a trial. Or, worse still, pressure being put on them to plead guilty at an earlier stage in the proceedings.

The specifics of the conspiracy/agent provocateur- difficulties for the Prosecution

As previously explained, the Prosecution must prove the existence of an agreement and this can prove to be difficult. In addition, the conspirators must know the specifics of that agreement and what they are agreeing to do. So if for example, A and B conspire with C to import class B drugs like cannabis and C provides the lorry in which the drugs are smuggled but in fact A and B import cocaine which is a Class A drug, then C is not guilty of the conspiracy to import class A drugs and would be acquitted at trial.

What if A, B, C and D conspire to commit a series of armed robberies but in fact A is an under-cover police officer and agrees to supply the weapons? Could B, C and D run agent provocateur defences? This would depend upon the nature and actions of A and goes beyond the scope of this article. But the point is made, with a conspiracy the agreement is everything and that is why it is not always that easy for the Prosecution to establish.

Penalty for statutory conspiracy – myth dispelled

Defendants often mistakenly believe that just because they have been convicted or have pleaded guilty to a conspiracy charge they will receive a higher sentence. This is not the case. The penalties for conspiracy to commit an offence mirror the sentence of the statutory offence which was the object of the conspiracy. So for example, if a defendant is charged and convicted of a conspiracy to burgle where a burglary has occured, then that defendant will be sentenced as if he had committed a burglary and will not receive a higher sentence because he has been convicted of a conspiracy to burgle. What a judge can do is consider the roles of each defendant within a conspiracy so for example a defendant deemed to be at the bottom of the hierarchy will receive a lesser sentence to the defendant at the top of the tree.

The way to prepare a large-scale conspiracy case when the 50 lever arch files of case papers are served is to analyse the indictment carefully and the period of the conspiracy. Look at the two components of the conspiracy count namely the conspiracy itself and then the substantive elements of the alleged offence. Often the mens rea for the substantive part of the offence may not be sufficient for the requirements for the conspiracy. In R v Siracusa 90 Cr App Rep 340 the intention to commit grievous bodily harm could constitute the mens rea for murder but not for a conspiracy to murder.

So for example, in a cocaine drugs importation conspiracy case, the Prosecution would have to prove that the defendant knew he was importing cocaine. If the Prosecution are unable to prove this beyond reasonable doubt, then the Defendant would be acquitted. However, in the same case, if the defendant was charged with the substantive offence only i.e. not a conspiracy and raised the same defence, then he would have to plead guilty but would have a Newton Hearing ( a mini-trial before a Judge only) on whether the defendant knew if the drugs being imported were class A or B.

To crack the conspiracy wrap you need to chisel away and destroy the agreement.

At MPR Solicitors, our team of lawyers have over the years successfully defended in many large-scale drugs and money laundering conspiracy cases often involving foreign jurisdictions. We are also very experienced in dealing with SOCA (Serious Organised Crime Agency) and the Serious Crime Division of the CPS (Crown Prosecution Service). We have also successfully defended in conspiracy to murder and conspiracy to defraud cases.

We are fully equipped to deal with large cases often involving thousands of pages of evidence and can arrange for back-up support to digest large amounts of data quickly and efficiently freeing up our time to concentrate on advising our clients on the evidence and planning case strategies and legal arguments.

We can advise and assist clients from our Head Office in Hounslow, Hammersmith office or at our base in the City of London. Our London Conspiracy Defence Solicitors can also visit you at your offices or whererever you are based.