The Gazette 1972

Vagueness in the Law of Conspiracy by MICHAEL ZANDER

Criminal conspiracy was described in a recent case by Lord Diplock as "the least systematic, the most irra- tional branch of English penal law". The late Justice Jackson of the US Supreme Court called it "an elastic, sprawling, and pervasive offence . . . so vague that it almost defies definition". It dates from 1354 but it was only properly estab- lished by the Star Chamber in 1611. It is triable on indictment and there is no limit to the penalty that can be imposed. The crime is committed even if the conspiracy is never put into effect, providing there was an agreement of two or more persons to do unlawful things or to do lawful things by unlawful means. In the Hain case it was conceded that the aim of disrupting a rugby or a cricket tour is itself perfectly legal. What was com- plained of was that unlawful means had been used. It is a crime to conspire to commit most crimes including a summary offence. It is also a crime to con- spire to defraud someone even where the act itself is not a crime at all. In a much-criticised case of Shaw v the DPP the House of Lords ruled in 1961 that there was a crime of conspiring to corrupt public morals. This was confirmed by the law lords in June of this year in the Knuller case in which the judges ruled however that there was no such offence known to English law as conspiracy to outrage public decency. In the Hain case the crucial issue has been the extent of the crime of conspiracy in relation to civil wrongs. Obviously it would be absurd for the law to punish as a criminal conspiracy triable on indictment an agree- ment between two people to walk in a private park without permission. In 1819 a court refused to extend the law of con- spiracy to a band of people who committed trespass with arms by night for the purpose of snaring hares. The only other relevant precedent is the Bramley case in 1946 in which five people were charged at the Old Bailey with conspiracy to trespass and to commit forceable entries by putting squatters in unoccupied houses. Summing up to the jury, Mr. Justice Stable (by a coincidence the father of Mr. Owen Stable, Q.C., who led for the prosecution against Hain) said that a con-

spiracy could be criminal if it was intentionally directed to deprive someone of their legal rights, providing it was a suitable matter for the criminal law. Normally breaches of civil law were remedied only in the civil courts through damages or an injunction. But if it was something that affected the community as a whole it might constitute the crime of conspiracy. The judge directed the jury to consider whether the num- bers involved, the methods adopted, and the magnitude of the common aim took it out of the sphere of the civil law and made it a matter of public concern for citizens concerned in the maintenance of good order and security. The jury found the accused guilty on all counts. No appeal was taken and the judge's direction was never subject to further scrutiny. The judge in the Hain case relied greatly on this direction. He told the jury that the offence was committed if legal rights on matters of substantial public interest were interfered with by un- lawful means which were of substantial public concern. It will always be difficult for the prosecution to pro- duce evidence of a conspiracy in cases of demonstra- tions though the fact that a number of people act in concert can be used as evidence against them. It is not often that the prosecution have available—as it had here—a book by one of the participants describing what occurred in detail. One great objection to conspiracy charges is their tendency to vagueness. The indictment in the Hain case contained four counts of conspiracy supported by a bewildering number of examples or "particulars". Not unreasonably, the defence claimed that if the jury found Hain guilty in relation to, say, one of seventeen separate examples mentioned in Count One he would be guilty on that count without anyone, not even the judge who had to pass sentence, knowing that he had been acquit- ted of the other sixteen. The Law Commission working party is due to pub- lish a paper on the law of conspiracy early next year. Its principal recommendation is likely to be the aboli- tion of criminal conspiracy in relation to acts that are not themselves crimes. In that event a prosecution such as that brought against Peter Hain would become impossible. The Guardian (August 1972) bring effectively within the tax net property over which the deceased had a general power of appointment and which might not come into the possession of the trustees. In sudh cases as the law stood it was thought that the trustees over the property so appointed would not be accountable for the estate duty because the executor although not in possession of the property was so accountable. It would appear that a possible construc- tion of the amendment of the section is that on the sale of property by personal representatives now the pur- chaser is put on inquiry as to payment of death duties. The Secretary took the matter up with the Estate Duty Office. They are to make enquiries and communi- cate further with the Society.

DISCHARGE FROM DEATH DUTIES Section 8 (4) of the Finance Act, 1894, enacted that where property passes on the death of the deceased and his executor is not accountable for estate duty in respect of such property every person to whom such property so passes for any beneficial interest in possession and also to the extent of the property actually received or dis- posed of by him every . . . other person in whom any interest in the property so passing or the management thereof is at any time vested . . . in possession by aliena- tion or other derivative title shall be accountable for estate duty on the property. Section 32 of the Finance Act. 1971, amended Section 8 (4) of the Finance Act, 1894, by the deletion of the words "and his executor is not accountable for the estate duty in respect of such property". The intention of the amendment was to

- 2 3 4