Conspiracy

Conspiracy

A conspiracy occurs when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means. The agreement constitutes the offence. Conspiracy requires nothing more than an agreement. It does not require any attempt or step to be taken.

A conspiracy is an agreement between a number of persons to commit an unlawful act.  There are a number of types of conspiracies.

• where the objective is itself unlawful.
• where the objective is lawful, but the means used are unlawful.
• where the objective is to commit a civil wrong but not a crime.

In the latter case, the conspiracy, although not criminal if committed by one person, may become criminal if committed by more than one.

The unlawful act required for conspiracy may be a crime. It is less clear whether a civil wrong constitutes a sufficient unlawful act for this purpose. It appears it is sufficient.

Agreement

A conspiracy involves an agreement between two or more parties. An agreement requires more than mutual intent. There must be something equivalent to what would be required for a contract. Needless to say, such a contract could not exist at law as it would not be enforceable agreement.

A common mutually understood aim or intention is sufficient. A discussion or preparatory steps would not be sufficient.

The need not be a meeting or explicit agreement. Parties need not necessarily communicate. The coordinated action of a number of parties may be sufficient to lead to an inference of conspiracy.

Evidence

There will rarely be direct evidence of an agreement. An agreement may be inferred where the  parties later act in concert. As with other evidence of  criminal wrongdoing, the fact of the conspiracy would be a matter of inference for the jury from the circumstances.

Because the offence is constituted  by the agreement, what happens afterwards does not affect the position. An agreement implies that there be more than one person. Commonly the other person is not known to the authorities and the charge is for conspiring with a person or persons unknown.

Agreement Enough

The conspiracy is committed once the agreement has been made, irrespective of whether it is ever implemented. Similarly, if an attempt is made to implement it, which fails, the conspiracy may be charged independently. The fact that the conspiracy fails does not absolve the participants from criminal liability.

Intent

The participant in the conspiracy must be proved to have the intent to commit the act, being the principal offence. He must have sufficient knowledge of the purpose and intention. He need not necessarily know the precise details. He cannot shut his eyes if he knows what is broadly involved, and claim he did not know.

If there is a general intention and the specific method chosen is impossible, a conviction for conspiracy may ensue.If the conspiracy is to do a specific thing that is impossible, this may not constitute the offence , depending on the nature of the impossibility.An apparent conspiracy to do something which is not unlawful for example by reason of mistake, does not constitute the crime of conspiracy. In this case there is a mental element but no act unlawful act.

Conspirator Issues

Conspirators can be charged together or separately. The fact that one conspirator is acquitted does not necessarily mean that the other may not be convicted. Even if two persons are charged jointly, it may be that the weight of evidence against one is more than the other. However, if they are tried jointly, logic would generally dictate that they cannot be convicted unless each is convicted.

It appears, the person and his spouse may not conspire. It appears that a one-person company may not conspire with the company itself notwithstanding that technically it is a separate legal person.

Common Law Conspiracy

Conspiracy to commit a crime is a crime at common law. It was classified as a misdemeanour.

There are a number of types of conspiracy at common law.

• conspiracy to commit a criminal offence.
• conspiracy to defraud.
• conspiracy to pervert the course of justice.
• conspiracy to corrupt public morals.
• conspiracy to commit public mischief.
• conspiracy to commit a civil wrong.
• conspiracy to outrage public decency.

Some may be too uncertain in scope to standards of  certainty required by the Constitution or ECHR for a valid crime.

The penalty for conspiracy at common law is determined by the court. It should not be more than that for the principal offence itself.

Statutory Conspiracy

There is now a general statutory Offence of conspiracy.

A person who conspires, whether in the State or elsewhere, with one or more persons to do an act—

• in the State that constitutes a serious offence, or
• in a place outside the State that constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence,

is guilty of an offence irrespective of whether such act actually takes place or not.

A serious offence” means an offence for which a person may be punished by imprisonment for a term of 4 years or more;

A person charged with the above offence is liable to be indicted, tried and punished as a principal offender. Where the offence, the subject of the conspiracy, is murder, is liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

This does not apply in respect of a conspiracy to commit murder to which section 4 of the Act of 1861 applies. This provides for the offence of conspiracy or solicitation to commit murder. The legislation was updated in 2023.

Outside the State

Conspiracy outside the state to commit a criminal act within the state was not an offence at common law. It is now a statutory offence.

The general statutory offence above  also applies to a conspiracy committed outside the State if—

• the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland,
• the conspiracy is committed on board an Irish ship,
• the conspiracy is committed on an aircraft registered in the State, or
• the conspiracy is committed by an Irish citizen or a person ordinarily resident in the State.

It  also applies to a conspiracy committed outside the State in circumstances other than the last case, , but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings for an offence except in accordance a procedure.

A person who is acquitted or convicted of an offence in a place or outside the State shall not be proceeded against for an offence  under the statutory offence of conspiracy  or the conspiracy to do an act, that constituted the offence or  conspiracy to murder under section 4 of the Act of OAP Act 1861 consisting of the act, or the conspiracy to do the act, that constituted the offence, of which the person was so acquitted or convicted.

Offence of Directing Criminal Organisation

A person who directs, at any level of the organisation’s structure, the activities of a criminal organisation is guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

“directs”, in relation to activities, means

• controls or supervises the activities, or
• gives an order, instruction or guidance, or makes a request, with respect to the carrying on of the activities;

Activities include references to—

• activities carried on outside the State, and
• activities that do not constitute an offence or offences.

Evidence of Directing

Any statement made orally, in writing or otherwise, or any conduct, by the defendant implying or leading to a reasonable inference that he or she was at a material time directing the activities of a criminal organisation shall, in proceedings for an offence  be admissible as evidence that the defendant was doing such at that time.

The  court or the jury, as the case may be, in determining whether an offence has been committed, may, in addition to any other relevant evidence, also consider  any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of the organisation concerned at the material time.

They may also consider

• whether the defendant has received any benefit from the organisation concerned, and
• evidence as to the possession by the defendant of such articles or documents or other records as would give rise to a reasonable suspicion that such articles, documents or other records were in his or her possession or control for a purpose connected with directing the activities of the organisation concerned.

Any document or other record emanating or purporting to emanate from the organisation concerned from which there can be inferred—

• either the giving, at the time concerned, of an instruction, order or guidance by the defendant to any person involved in the organisation, or
• the making, at that time, by the defendant of a request of a person so involved, or
• the seeking, at that time, by a person so involved of assistance or guidance from the defendant,

shall, in proceedings for an offence, be admissible as evidence that the defendant was directing the activities of the organisation concerned at the material time.