Hku Lect Conspir

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C R IMINAL JUSTICE?CONSPIRACY AND INTENTby

MICHAEL HILL, Q CChairman, Criminal Bar Association

(England and Wales)I INTROD UCTION

TRADITIONALLY, the beginning of a new year is a time forthought about what the future promisesor threatens. Lawyersare no more immune to this kind of fortune-telling than anyother group. The invitation to give these two lectures hasstimulated me both to an. examination of what we have andto a sometimes sombre view of what we may find ourselvesgetting.

All developed societies, in what we call the free world, havebeen going through a long period of increasing crime rates andincreasing quality and sophistication in criminal endeavour.Twenty-five years ago, when I started practice, although wehad in England some elements of organised, and rather moreelements of professional crime, crime tended to be local inorigin and operation and seldom posed great intellectualdemands on those who had to understand or to explain it.I daresay that the same was true elsewhere in the world.To-day, the picture has changed beyond all recognition. Therecan be no doubt about the organisation and professionalism ofmuch crime, not necessarily through something akin to the'Mafia,' but by leading home-grown criminals who know andrelate to each other. As modern technology has improved, sohave the opportunities for intelligent criminals. Intelligentcriminals are not a figment of the imagination: far more afigment is the burglar with sallow face, black mask, stripedjumper and swag bag over his shoulder. Indeed, one of themore disturbing features of modern crime is the increasinginvolvement of the professional and managerial middle classes.


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The change in the nature and sphere of operation of thenational criminal is not the only disturbing development.Grime has become internationalised. The last fifteen years,especially, have seen an incredible growth in internationalterrorism, drug trafficking and fraud. International crime isthe most difficult to detect, to investigate and to prove. More-over, I believe that there is sufficient anecdotal evidence tosuggest that we are seeing interaction between different typesof international criminal operationsas, for example, terroristswho, in need of funds, combine with international drugtraffickers or fraudsmen in order to raise the required finance,

These developments pose national law enforcement agencies,prosecution services and criminal justice systems with unpre-cedented problems. D ifferent countries have reacted in differentways. My anxiety is that m y country, for so long the keeperofthe chalice of the ruleof law and the protection of theindividualagainst all-comers, ha s begun to move towards the fabric of arepressive state. The fact that we are nowhere near that kindof state can be said, in too many instances, to be in despite ofour laws rather than because of them. Fortunately, we are stillgoverned by people who maintain the fundamental principlesof our unwritten constitution, the most important of whichisthat both Government and people must live by a rule of lawwhich is calculated, in the final analysis, to protect the individualagainst the abuse of power and against false accusation.Nonetheless, the pattern is there.

My purpose in these two lectures is to examine how certainchanges in the substantive and procedural laws of Englandhave occurred in recent years and to examine their applicationin present circumstances. The subjects of the first lecture, whichdeals with the substantive law, are conspiracy and intent. Iwant to look at those topics against the background of thedevelopments in crime which I have already sketched and alsoagainst two points which I want to make now:

( i ) in a political context, there can hardly be a moreemotive charge than that of conspiracy; it is seen, Ibelieve, rightly as the 'legal' weapon most often used by


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Conspiracy an d Intent

repressive regimes to neuter and to villify and, if desired,to punish their opponents; It happens also to be one of themost useful and effective charges upon which to found aprosecution of organised and/or professional criminals;(2 ) it is fundamental to any proper system of law that no.man should be convicted of and punished fo r crime unlesshis mind can be proved to have gone with his act to theextent demanded by the particular crime alleged againsthim; this principle has often been seen by governments aspreventing their 'control' of the populations which theygovern and many have seen the attempts to legislate insuch a way as to make it a crime to do a certain thing, evenif the mind did not go with the act; the legislatures and thejudiciaries in truly free countries have generally succeededin resisting such attempts; in countries which have movedfrom freedom to repression, the legislatures and thejudiciaries (i f they have been allowed to continue to exist)have either not made the effort or have failed.

II C O N S P I R A C YThe number of conspiracy cases which came before th e criminalcourts when I started at the Bar were relatively few. That mayhave been due in part to the nature ofcrime in those days. Themain reason, however, was that the judges inveighed againstconspiracy counts whenever they had the oppor tun i tyandprosecutors took heed. If, for example, a gang of robberscarried out (or attempted) a series of planned robberies, it wasalmost unthinkable that they would be indicted for conspiracyto rob: they would be charged with the individual robberies.If the prosecution had the temerity to add a count for con-spiracy, they would be hard pushed to avoid being forced todrop it at some stage. The guiding principle was that aconspiracy should be indicted only if the fact of the conspiracycould be shown to add a degree of criminality to that demons-trated by the Individual (joint enterprise) offences. To-day,conspiracy is the favoured count in cases where a numberof people have combined together to enter upon a criminal


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4 Law Lectures for Practitioners

enterprise, even when that enterprise ha s been brought tofruition.W hy lias this change occurred ? It could be 'argued that thereason is that the old judicial attitude to conspiracy has beenseen as unsound. There may be something in that, but I thinkthat the overwhelming reason is that modern crime simplycannot be prosecuted effectively before an y tribunal of factwithout the frequent use of conspiracy as th e only charge, or asone o f the charges. I can illustrate this I think, by reference to a'carbon paper ' fraud which I prosecuted in, the mid-1970s,The mechanics of such a fraud were (are) frig htening ly simple:The fraudsmen contacted the busy stationery buyerof a largecompany and persuaded him to place an order for a quantityof a well-known, brand of carbon paper at 'knock-down'prices; delivery is made promptly and the company isbilled: as soon as it has paid (sometimes before), a similarquant i ty , seldom of the same quali ty , is delivered andbilled and the same thing Is repeated at, regular intervals;if the buyer realises what is going on (before his stationerystore explodes) he will be told, very forcibly, that theoriginal order he placed was for regular deliveries andthat, after all, he did receive a present fo r placing such alarge and valuable order in the first place (as would hethe fact).

In the very nature of such a fraud, it is likely to succeed moreoften than no t and, even when it is discovered, is often no trepo rted to the po lice because large comp anies find it embarrass-ing to admit that they have been 'caught' in such a way. Inmy case, we had a bou t eighty losers, each one hav ing been avictim on an average of about four occasions. The idea ofsetting out to prove about 32 0 individual transactions did notattract oneand there was always the risk that, if we didcharge sample substantive counts, the evidence on one or moreof them might fall short of the necessary standard in respect ofon e or more of the defendants, so that guilty people might beacq uitted , W e prosecuted for conspiracy. In the end, we used


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Conspiracy and Intenttwelve individual incidents to prove the involvement of each ofthe defendants in at least two transactions. Of course, we endedup adducing evidence of a fraud about one-tenth of the valueof that which could have been proved. There have been manyarguments about this problem and they continue to this day.M y point, however, is that that case was not prosecutable,before any tribunal of fact, in our adversarial system with theburden and standard of proof which we rightly place upon theprosecution and with our evidential rulesunless weprosecutedfor conspiracy.

That case was prosecuted as a common law conspiracy todefraud. That could not happen to-daybecause of theCriminal La w Act, 1977. Before the Act, apart from, conspira-cies which were covered by specific statutory provisions, al lconspiracies were common la w offences. Broadly speaking,there were four kinds of common law conspiracy: to commitcriminal offences; to defraud; to commit tortious acts incombination; and to corrupt public morals or to outrage publicdecency. The essential ingredient of conspiracy was the meetingof the minds of at least two people who shared and purposedto achieve together the same objective. The 1977 Act wasintended to change much of the old situation. Save for theexcepted conspiracies, a criminal conspiracy is now defined bysection i of the Act as:

'... if a person agrees with any other person or personsthat a course of conduct shall be pursued which, if theagreement is carried out in accordance with their inten-tions, either(a ) will necessarily amount to or involve the commissionof any offence or offences by one or more of the parties tothe agreement, or(b ) would do so but for the existence of facts which renderthe commission of the offence or of any of the offencesimpossible he is guilty of conspiracy to commit the offenceor offences in question.'The excepted conspiracies are specified in section 5 of the Actas being: conspiracy to corrupt public morals or to outrage


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Law Lectures or Practitionerspublic decency where the conduct contempla ted would notamount to or involve the commission of any offence if pursuedby one person alone without any agreement with any otherperson: all at common law. Further, the Act does not apply toconspiracy offences under other statutes.The arguments about the meaning of these provisions an dabout the ambits of the common la w conspiracies were legion,Many cases were argued on the basis that the indictmentcharged a conspiracy under the Act, when it should havecharged a common la w conspiracyand vice versa. The Courtof Appeal tried to put a stop to this litigation when it heard theappeal of R v Ayres. The Court said:

'We would . . . wish to remind those whopersist in raisingquestions on the form of the indictment, that the argumentsare of little practical imp ortance. Even if an indictment isincorrectly framed, it is defective only and does not renderthe trial a nullity. The time of both courts of first instanceand the Court of Appeal is unnecessarily wasted in a purelyacademic exercise.'

That ex c a t h e d r a pronouncement may turn out to have beenper incuriam because of the provisions of the Criminal AttemptsAct, 1981. Section 5 of that Act amended section i of the 1977Act (I have set out, above, the amended section). The case of Rv M o c k [1978] AC 979 established that, at common law, there isno such thing as a conspiracy to do the impossible. It maymatter greatly, therefore, whether a conspiracy is a statutoryconspiracy, under section i, in which event there can be aconspiracy to do the impossible, or is a conspiracy at commo nlaw, in which event the decision in Nock will still apply. Ayresis a crucially imp ortant case. It went to the House of Lords[1984] 2 WLR 257and their Lordships fina lly resolved therelationship between sections i and 5 of the 1977 Act. (Sincedelivering this Lecture, I have been inform ed o f and have comeacross cases, the facts of which support the disquiet expressedabout the practical consequences if the decision in the House ofLords is taken too literally and without regard to the significance


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of the word 'necessarily' in section i ( i ) (a) of Act.) The problemhad been the Interface between the statutory conspiracy(section i) and conspiracy to defraud. In Scott v MetropolitanPolice Commissioner [1974] 3 WLR 741, at page 749, ViscountD ilhorne had said:' ... in my opinion it Isclearly the law that an agreementby two or more by dishonesty to deprive a person ofsomething which is his or to which he is or would be ormight be entitled and an agreement by two or more bydishonesty to injure some proprietary right of his, sufficesto constitute the offence of conspiracy to defraud. '

Put in that authoritative way (and it was the accepted view),conspiracy to defraud was apt to cover conspiracies to commit avery wide range of statutory criminal offences, such as robbery,theft, obtaining by deception and many more. Hence theargument about the relationship between sections i and 5. TheLords were very firm: they held that the two offences of'statutory' and 'common law' conspiracies were mutuallyexclusive and they denounced the 'convenience' basis fo rdeciding which to charge. Lord Bridge delivered the leadingspeech. He said that the purpose of section 5 was to prevent alacuna in the law which would have resulted if section i hadstood alone. This is, indeed, the historical position (see LawCommission Working Paper, number 56). The conclusion wasthat the common law conspiracy could be charged only wherethe course of conduct agreed upon would not involve oramount to a criminal offence if the agreement wascarried out.If it could involve or amount to a criminal offence then, evenif the case might fall within Viscount Dilhorne's dictum, it mustbe charged as a section i conspiracy.W h a t Ayres did not resolve is what is meant by 'to defraud'in English law. This is a problem which has defeated manygreat minds and I am certainly not going to attempt anydefinition. On the other hand, I think that it is possible to givesome reasonable indication of the ambit of the phrase. Clearly,it contemplates, at least, somebody dishonestly causing another


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pecuniary loss: equally clearly, the concept of defrauding ismuch wider than that, I commend to the interested the follow-ing cases in particular, each, of which has an Important bearingon the meaning of 'to defraud':

Bassey (1931) 22 Cr AppR 160;Board of Trade v Owen [1957] AC 6oas ;Welham [1961] AC 1033;Scott (op.cit.);Withers [1975] AC 842; andAllsop (1977) 64 Cr AppR 29 ,

I suggest that these cases and the others referred to therein,justify the following exposition of the ambit of 'to defraud':(1 ) it is essentially an offence of dishonesty;(2) it involves, in every case, the causing of prejudice toanother person;(3) the prejudice need not arise from any deceptionpractised by the person doing the defrauding; and(4) the prejudice contemplated may amount to: causingeconomic or proprietary loss; imperillingeconomic interests;causing a person to act contrary to a public duty.

I shall return to conspiracy to defraud at the end of thesection dealing with 'intent' and in the second lecture. I endthis section with a very quick look at the present law relatingto the proof of a conspiracy. There are very fewconspiraciesthat are documented, fully or at all: in the vast majority ofcases, the prosecution has to rely on the evidence of the actionsof the alleged conspirators (and on the interaction of thoseevents) in order to prove both the fact of the conspiracy and theIdentity of the conspirators. As part of that proof, they can relyupon the 'acts and declarations of the conspirators in further-ance of the conspiracy' and they can rely upon such evidence,importantly, to prove the involvement of a defendant against


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Conspiracy and Intent 9whom there may be no other direct evidence. Thus, against abackground that there is some proved association between Aand B and some proof of the former's criminal purpose, astatement by A, intended to further that criminal purpose,that B is his partner in it, is evidence that B was a conspiratorwith A. This frequently produces great difficulties for all partiesand, particularly, fo r judge and jury. In the case of R v Walters,Tovey an d Others (1979) 69 Cr AppR 114, the Court of Appealhad to consider the direction given by the trial judge:

'First of all, what the conspiratorssaidor did, in furtheranceof the common object, or common agreement, isevidenceagainst all the rest of the conspirators. . . . You canconsiderthose (actions and declarations) against them all, eitherbefore you have decided that there is an overall conspiracyand in order to decide that pointor after you havedecided that there is an overall conspiracyif you do sof indand when considering whether any particulardefendant is within that conspiracy, provided that youdo consider both of these aspects and you do find there isa conspiracy in the end.'

The Court approved that direction, but goodness knowswhat the jury made of it at the time. Having had to direct ajury very recently on the same problem, I do not want to bethought to be in any way critical of that learned judge. Mycomplaint is about the principle. I find the idea that theinvolvement of one defendant in a conspiracy can be proved byanother alleged conspirator's statement, and by nothing else,unpalatable.

Ill I N T E N TThe old law, that is, the law prior to 1967, was that a man waspresumed to intend the natural and probable consequence ofhis actions. The presumption was rebuttable, but it applied toall offences of which an essential ingredient was the intention toachieve a specified resultsuch as wounding with intent to do


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10 Law Lectures for Practitionersgrievous bodily harm. The presumption had a special place inthe law of murder, if Art 22 3 of Stephen's 'Digest' is to be readliterally, and it was as the consequence of a case of capitalmurder that the presumption was perceived, at last, to produceintolerably wrong results. In the case o f Smith [1960] 3 WLR546, the question before the House of Lords was:

' . . . what is the proper direction to be given to a jury inregard to the necessary intent which has to be proved incases of murder an d also in cases (o f wounding or causinggrievous bodily harm with intent) ?'Th e case arose out of the death of a police officer. The officerha d attempted to stop Smith, who was driving a car, in factcontaining stolen property: Smith had not stopped but hadaccelerated, whereupon the officer ha d thrown himself on thebonnet of Smith's car, from which he was eventually dislodged,only to fall in front of another vehicle, which ran him over.Th e officer died from his injuries. The crucial direction givenby the trial judge was:

'If you are satisfied that . . . (Smith) must have contem-plated that grievous bodily harm was likely to result tothat officer . . . and that such harm did happen and theofficer died in consequence, then the accused is guiltyofcapital murder. . . . On the other hand, if you are notsatisfied that he intended to inflict grievous bodily harmupon that officerin other words, if you think he couldno t as a reasonable man have contemplated that grievousbodily harm would result to the officer in consequence ofhis actionswell, then, the verdict would be guilty ofmanslaughter.'Smith was convicted of capital murder an d appealed successfullyto the Court of Appeal. That Court emphasised that thepresumption was rebuttable and that it did not have to bedrawn in every case. The House of Lords reversed that decision.It was a strong House, consisting of Viscount Kilmuir, the Lord


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Chancellor, an ex-Lord Chief Justice, Lord Goddard, thecurrentLord Chief Justice, Lord Parker, the future Master of the Rolls,Lord Denning and Lord Tucker. The Lord Chancellor deliveredthe leading speech, with which all the rest expressly agreed.Certain passages from his speech have a significance in view ofwhat was to happen thereafter. He said, at page 553:

' , . . (the Court of Criminal Appeal) were saying that itwas for the jury to decide whether, having regard to thepanic in which (Smith) said he was, (he) in fact at thetime contemplated anything at all. Unless th e jury weresatisfied that he in fact had such contemplation, thenecessary intent . . . would not, in their view, have beenproved. This purely subjective approach implies this, thatif an accused said that he did not in fact think of theconsequences, and the jury considered that that might wellbe true, he would beentitled to be acquitted of murder .. .the proposition has only to be stated thus to make onerealise what a departure it is from that upon which thecourts have always acted. The jury must ... in such a caseas the present, make up their minds on the evidencewhether the accused was unlawfully and voluntarily doingsomething to someone. The unlawful and voluntary actmust clearly be aimed at someone in order to eliminatecases of negligence or of careless or dangerous driving.Once, however, the jury are satisfied as to that, it mattersnot what the accused in fact contemplated as the probableresult or whether he ever contemplated at all, provided hewas in law responsible and accountable forhis actions, thatis , was a man capable of forming an intent, not (legally)insane . . . and not suffering from diminished respon-sibility. On the assumption that he is so accountable forhis actions, the sole question is whether the unlawful andvoluntary act was of such a kind that grievous bodily harm,was the natural and probable result. The only test availablefor this is what the ordinary responsible man would, in allthe circumstances of the case, have contemplated as the


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natural and probable result. That, Indeed, has always beenthe law. , . .'Later in that speech, after reviewing some of the authorities,he added (a t page 557):

'Whether the pre sum ptio n is one of law or of fact or ... ofcommon sense, matters not The real question iswhether the jury should have been told that i t was rebut-table. In t ruth . . . this is merely another way of applyingthe test of the reasonable ma n . Provided that th ^ presump-tion is applied, once the accused's knowledge of thecircumstances and th e nature of his acts ha s been ascer-tained, the only thing that could rebut th e presumptionwould be proof of incapacity to form an intent, insanityor diminished responsibility. '

The outcry was loud an d prolonged. After all, their Lordshipswere saying that the presumption applied whether or no t theconsequences had been contem plated by a person who wasneither insane nor 'suffering' (sic) from diminished respon-sibility. In 1967, Parliament legislated (in section 8 of theCriminal Justice A ct) that:

'A court or j u r y , in determining whether a person ha scommitted an offence,(a ) shall not be bound in law to Infer that he Intendedor foresaw a result of his actions by reason on ly of its beinga natura l an d probable result of those actions; but(b) shall decide whether he did intend or foresee thatresult by reference to all the evidence drawing suchinferences from the evidence as appears proper in thecircumstances.'

The evident purpose an d effect of this provision was that,when 'intent' or 'foresight' was a necessary in gredient in anoffence, the jury would have to be satisfied that the defendantactually ha d that intent or foresight. To the minds of most,


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Conspiracy and Intent 13

this was a desirable and important provision: indeed, somethought that it did no more than to restate the old law whichhad been mis-stated in Smith.There was however a canker in that desirable frui tand thecanker was 'recklessness'. Various Acts of Parliament have

distinguished between intention and recklessness, A very goodexample is the Criminal Damage Act, 1971.1 take section i ( i )to illustrate the point:!A person who without lawful excuse destroys or damagesany property belonging to another intending to destroy ordamage any such property or being reckless as to whetherany such property would be destroyedor damaged shall beguilty of an offence.'

Is 'recklessness' a different concept from 'intent/foresight' or,in the end, is it really the same thing? The method of legislatingas in the Criminal Damage Act would suggest that it is adifferent concept. That, certainly, is the logic of section i ofthat Actbut let us not be seduced into thinking that logicprovides the answer to the question.In 1954, a lecture by Lord Devlin was published in theCriminal Law Review. In it, he said, at page 666, that if aman had decided that certain consequences would probablyfollow from hi s actions:

' ... for the purposes of the law he intended them tohappen, and it does not matter whether he wanted themto happen or not . . . it is criminal intent in the strictestsense.'

That approach can be followed through a number of cases,down to and through Smith, in which it was quite clear that theHouse of Lords equated foresight of probable consequenceswith intent to produce those consequences. It was adopted inHardy v Motor Insurers Bureau [1964] 2 Q B 745. In that case, theCourt of Appeal consisted of Lord Denning MR and Pearsonand Diplock LL.JJ. They had to consider the meaning of


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'Intent to do grievous bodily harm' under section 18 of theOffences against the Person. Act, 1861. Lord Denning said,at page 758:'(The test for the jury to apply) Is the evidence so strongthat we are satisfied that he, the accused man, must himselfhave been aware that grievous bodily harm was likely toresul t? '

Which brings the story to the case of Hyam [1974] 2 W L R 607.I doubt whether there have been many cases which have causedmore problems of interpretation and application. Th e facts ofthe case were tragically appalling. Mrs Hyam was a cast-offmistress who wanted to frighten off her successor. To do so,she set fire to the successor's home, knowing that the newmistress and her three children were in the house and wouldbeput in great danger. Two of those children died and Mrs Hyamwas tried for and convicted of their murder.The case went eventually to the House of Lords. TheCommittee consisted of the Lord Chancellor, Lord Hailsham,Viscount Dilhorne and the Lords Diplock, Gross and Kil-branden. The undoubted effect of the decision (the Lordsdismissed the appeal) is that a person who does an act, knowingthat it is probable that grievous bodily harm would result, isguilty of murder if death results, even though that person doesnot 'intend' to endanger life by his actions. There are crucialpassages in the speeches which suggest that their Lordshipsregarded the case as going wider in application than murder.Thus, Lord Diplock, at page 2 6 9 :

'This appeal raises two separate questions. The first iscommon to all crimes of this class. It is :what is the attitudeof mind of the accused towards the particular evil conse-quences of his physical act that must be proved in order toconstitute the offence? Upon the first question I do notdesire to say more than that I agree with those of yourLordships who take the uncomplicated view that in crimesof this class no distinction is to be drawn in English law


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Conspiracy and Intent 15between the state of mind of one who does an act becausehe desires it to produce a particular evil consequence, andthe state of mind of one who does it kno wing full well thatit is likely to produce that co nsequence although it m aynot be the object he was seeking to achieve by doing theact. What is common to both states of min d is willingnessto produce the particular evil consequence: and this, inm y view, is the mens re a needed to satisfy a requirement ,whether imposed by statute or existing at common law,that in order to constitute the offence with which theaccused is charged he must have acted with 'intent' toproduce a particular evil consequence or, in the ancientphrase w hich still survies In crim es of homicide, with'malice aforethought'.'

The same conjunction of 'intention' and 'foresight' can beseen in Lord Simon's speeches in Lynch v DPP for NorthernIreland [1975] AC 653 and in R v Morgan [1975] 2 W LR 913. Itcan be seen, also, in R vMajewski [1976] 2 WLR 623. The impor-tance of the latter tw o cases is that they were not cases ofmurder: they concerned, respectively, rape and assault. InMorgan^ Lord Simon said, at page 939:

'By 'crimes of basic intent' I mean those crimes whosedefintion expresses (or, more often, implies) a mens reawhich does not go beyond the actus reus. The actus reusgenerally consists of an act and some consequence. . . .(He went on to identify assault as an offence of basicintent) . . . . The prosecution must prove that the accusedforesaw that his act would probably cause another personto have apprehension of immediate and unlawful violenceor would possibly have that consequence, such being thepurpose of the act or that he was reckless as to whether ornot his act caused such apprehension. This foresighttheterm of art is 'intention'or recklessness is the mens rea inassault. . . . On the other hand there are crimes of ulteriorintent'ulterior' because the mens rea goes beyondcontemplation of the actus reus. For example, in the crime


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of wounding with intent to cause grievous bodily harm,the actus reus is the wounding. The prosecution mustprove a corresponding mens rea (as with unlawful wound-ing), but the prosecution must go further: it must showthat the accused foresaw that serious physical injurywould probably be a consequence of his act, or wouldpossibly be so, that being a purpose of his act.'

Lord Simon does not equate recklessness with intent, as thatsecond passage dealing with offences of 'ulterior' intent shows.B ut is there, in fact , any difference between 'recklessness' and'a will ingness ' to expose another to the risk of an undesired butforeseen probable consequence? Let .me quote from LordDiplock again, this time in R v Lawrence [1981] 2 WLR 524,at page 535:

'Recklessness on the part of the doer of an act does presup-pose that there is something in the circumstances thatwould have drawn the attention of an ordinary prudentindividual to the possibi l i ty that his act was capable ofcausing the kind of serious harmful consequences that thesection which creates the offence was intended to prevent,and that the risk of those har m f u l consequences occurringwas not soslight that an ordinaryprudent individual wouldfeel just if ie d in treating them as negl ig ible . It is only whenthis is so that the doer of the act is acting 'recklessly if beforedo ing the act, he either fails to give any thought to thepossibility of the re being any such risk or, having recognisedthat there was such a risk, he nevertheless goes on to do it. '

In that passage there are two detectable differences betweenrecklessness and intent / fores ight . First: in order to proveintent/foresight, the prosecution must demonstrate affirmativelythat the accused actually foresaw the risk that the particularhar m f u l consequence would probably ensue; whereas reckless-ness does not require actual foresightit is sufficient if, on thefacts, an ordinary prudent person would have foreseen the riskof possible harmful consequences flowing from the accused's


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Conspiracy and Intent 1 7acts. But, what about, 'or, having recognised that there wassuch a risk, he nevertheless goes on to do it'? In that situationthere is actual foresight, so what is it, if anything, whichdistinguishes recklessness in that sense from intent/foresight?The classic answer lies in the declension from 'probable' to'possible'. If a person foresees that his actions will probablyproduce a particular consequence, he intends that consequenceeven if he does not desire it, whereas, if he foresees that hisactions will possibly produce that particular consequence, hedoes not intend it, he is merely being reckless about itprovided,that is, that he does not desire to produce it, in which case hewould intend it.Which is all very well an d good, until one recalls thatLawrence was a case of causing death by reckless driving an dthat what Lord Diplock meant when he talked of 'the possibilitythat his act was capable of causing the kind of serious harmfulconsequences that the section which creates the offence wasintended to prevent' was the death of another road user. Thatraises, immediately, the question whether there is any differencebetween the mens re a ingredients of causing death by recklessdriving an d those of what we loosely call motor manslaughter'?There are different ways in which manslaughter may becommitted: for my present purposes, it is sufficient if I definemotor manslaughter as causing the death of another unlawfully,without intending to cause that death or to do grievous bodilyharm to the victim but by grossly negligent driving. I do notpropose to essay a definition of gross negligence: all I need sayis that it requires the proof of a very high degree of negligenceand that mere inadvertence is insufficient. Which brings me tothe case of R v Seymour [1983] 3 WLR 349. The defendant hadbeen convicted of motor manslaughter. His appeal against thatconviction was dismissed by the Court of Appeal and he thenappealed to the House of Lords. Four of the members of theCommittee (the Lords Diplock, Fraser, Roskill and Bridge) hadbeen in Lawrence. In the latter case, Lord Diplock had said, atpage 535, that the appropriate direction to ajury on the mean-Ing of driving recklessly was that they must be satisfied:


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18 Law Lectures fo r Practitioners'First, that the defendant was in fact driving the vehiclein such a manner as to create an obvious and. serious riskof causing physical injury to some other person, who mighthappen to be using the road. , , . Second, that in drivingin that manner the defendant did so without having givenany thought to the possibility of there being any such riskor, having recognised that there was some risk involved,had nonetheless gone on to take it, , . .'

Faced with the problem of distinguishing 'death by reckless',so defined, from gross negligence 'motor manslaughter', LordRoskill ended his speech in Seymour with these words (a tpage359)

'I would therefore answer the certified question as follows:Where manslaughter is charged and the circumstances arethat the victim was killed as the result of the reckless drivingof the defendant on a public highway, the trial judgeshould give the jury the direction suggested in Lawrencebut it is appropriate also to point out that in. order toconstitute the offence of manslaughter the risk of deathbeing caused by the manner of the defendant's drivingm ust be very high,'

Now, if that is correct, is there really any difference betweenthe test for motor manslaughterwhich is a recklessnessoffenceand that for murder, at least in so far as the latter isenunciated in Hyam? Is it possible to distinguish between thestate of mind of a person who actually foresees that seriousbodily harm or death, although undesired, is a probableconsequence of his actions and that of a person who 'recklessly'pursues a course of conduct, recognising that it carries with itsome risk of causing death (or serious bodily harm) to another,which risk is, in fact very high?

Although I must accept that the two situations might bedistinguishable in theory (so that it might not be possible toargue that Hyam and Seymour are in conflict) it seems to methat:


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Conspiracy and Intent 1g(i) in reality, the two tests come to the same thing; and(ii) the theoretical, almost sophistical, distinction that couldbe drawn, would make no sense to any jury called uponto consider and apply both of them in any one case.

The criminal law is not a bout abstruse legal theories, al thoughthey may affect the development and academic interrelation ofth e law, it is about people and their actions and reactions inreal life. I suggest that, if Hyam and Seymour are looked at in thatlight, they are in conflictwith the unavoidable consequencethat at least one of them must be wrong. It is the definit ion of'recklessness' (for the offence of motor m anslaug hter) or is it theHyam approach, which equates foresight of an unwantedprobable consequence with the intention to produce thatconsequence?

I do not advance an answer to that question, but I do nothide that Hyam will be ov erruled by some process at some t ime.Indeed, as you probably know, there have been occasions whenlesser courts, able to distinguish Hyam on the facts, have refusedto follow it because of an evident distaste fo r what it wouldcompel them to hold in the pa rticula r cases they were con-sidering. There are in all the arguments about Hyam, are therenot, shades of what happened about the decision in Smith?Nonetheless, Hyam existsand it has a respectable ancestry,as I have attempted to show. In the context of this generaldiscussion about 'intent', its significance is that, putting thepoint at its lowest, it is possible that, where 'intent' has to beproved as an ingredient of any offence, be it one of violence orone of dishonesty, it may be sufficient for the prosecution toprove foresight of a probable consequence, even if that conse-quence was positively not to occur.In the context of frau d and fraud conspiracy cases, this m ayhave a significant bearing on the position of those who are usedby the principal fraudsman as 'innocent' agents for his fraud.

I return , therefore, to conspiracy to defraud, with the question:'what is the mens rea required for such a conspiracy?' It is,beyond question, an offence of dishonesty: I will deal with thatin a moment . It is, also, an offence which requires agreement


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Conspiracy and Intent 2 1report and I do not intend to do more than to summarise: thetwo defendants were the sole shareholders and. directors of anumber of companies; they and the companies borrowedextensively on the back of the property boom and, when theboom ended, the shortfall on their personal and companyborrowings ran into millions of pounds; during the relevantperiod and contrary to express oral and written advice fromtheir accountantthe tw o directors syphoned of f large sums ofmoney from the companies to accounts abroad; the counts inthe indictment alleged theft, effectively, of funds withdrawnfrom those accounts. The defencecase was that the two directors,in reality, were the companies, that what they did must betaken to have been consented to by the companies and that,therefore, there could not be any theft. This argument proceededbefore the trial judge who directed an acquittal. The AttorneyGeneral's reference posed the questions: whether a man in totalcontrol of a limited liability company (by reason of his share-holding an d directorship) is capable of stealing the property ofthe company; and whether two men in total control of a limitedliability company (b y reason of their shareholdings anddirectorships) are (while acting in concert) capable of jointlystealing the property of the company.

The short answer was 'yes'. The court examined the authori-ties and pointed in particular to two civil cases:M ultinational Gas and Penochemical Co . v Multinational Gas andPetrochemical Services Ltd. [1983] Ch 258; and Belmont Corpora-tion Ltd v Williams Furniture Ltd [1979] Ch 250.The former made clear that where the officers or shareholdersof a company act negligently in relation to their conduct of the

company's affairs (and provided the relevant transations areintra vires the company's memorandum), their actions are theactions of the company itself; whereas the second case involvedallegations of dishonest conspiracy by the directors to misusethe company's funds. In giving his judgment in Belmont,Buckley LJ said (at page 2 6 1 ) :


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'It may emerge at a trial that the facts are not as allegedIn the statement of claim, but if the allegations in thestatement, of claim are made good, the directors , . , mustthen, have known that the transaction was an illegaltransaction. But in my view, such knowledge should notbe imputed to the company, for the essence of the arrange-ment was to deprive the company of a large part of itsassets. I have said the company was a victim of theconspiracy, I think it would be irrational to treat thedirectors, who were allegedly party to the conspiracy,notionally as having transmitted this knowledge to thecompany; and indeed it is a well recognised exceptionfrom th e general rule that a principal is affected by noticereceived by this agent, that, if the agent is acting in fraudof his principal and the matter of which he has notice isrelevant to the fraud, that knowledge is not to be imputedto the principal. So, in my opinion, the company shouldnot he regarded as a party to the conspiracy, on thegroundof th e lack on the necessary guilty knowledge.'

In the Attorney General's reference, the Court of Appealwent on to point out that there was strong academic argumentthat th e same approach should be adopted by the criminall awand then proceeded to do so. For those who can stand th ethought of being at my second lecture, I shall return to thiscase to i l lustrate a particular point. In the meantime, I drawattention to the expressed fact that th e withdrawals of thesemonies bythe defendantswascontraryto the accountant'sadvice.Question: suppose that it had been to the contrary, what wouldhave been the positions of the directors and of the accountant?I turn now, and finally for this lecture, to the question offraudulent trading. Section 2 7 5 ( 1 ) and (3) of the amendedCompanies Ordinance defines the criminal offence of fraudulenttrading as the carrying out of the business of a company,whether or not it has been or is being put into liquidation:

'With intent to defraud the creditors of the company orcreditorsof any other person or for any fraudulent purpose/


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2 4 Law lectures for Practitionersquestion, arc words which connote actual dishonestyinvolving, according to current notions of fair trading inthe commercial area, real moral blame.'

He relied also on Buckley J's famous dictum in the unreportedcase from 1960 of re: White and Osmond (Parkstone) Ltd.

'In my judgment, there is no tiling wrong In, the fact thatdirectors have credit at a time when, to their knowledge,the company is not able to meet all its liabilities as they falldue. What is manifestly wrong is that if directors allow acompany to incur credit at a time when the business isbeing carried on in such circumstances that it is clear thatthe company will never be able to satisfy its creditors.However, there is nothing to say that the directorswhogenuinely believe that the clouds will roll away and thesunshine of prosperity will shine on them again anddisperse the fog of their depression are not entitled tocredit to help them to get over the bad time,'

The Court of Appeal said (at page 89) that the two judg-ments of Grantham J did, not sustain the proposition that th eproper direction was that the prosecution had to prove thatthe appellant knew that there was no reasonable prospect of thecreditors ever being repaidand said so because (a) GranthamJwas not attempting to define ' f r aud ' and (b) he was notaddressing himself to the question of the proper direction to thejury. With regard to Buckley J's dictum, they said (at page 9 0 ) :

'In so far as Buckl ey J was saying that it is never dishonestor f raudulent for creditors to incur credit at a time when,to their knowledge, the company is not able to meet allits liabilities as they fall due, we would respectfullydisagree.'

The Court went on to refer to R v Sinclair (1968) 52 CrAppR618 in which the Court of Appeal approved of the direction bythe trial judge:


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'It is fraud if it is proved that there was the taking of arisk which there was no right to take which would causedetriment or predjudice to another.'

That sound's suspicously like ' recklessness' does it not? TheCourt in Grantham dismissed the appeal saying that the judge'sdirection was correct in law.

That caseand the whole question of fraudulent t radingisprobably worthy of a lecture of its own. I mentioned it now insome detail for two reasons:

(1 ) fo r some reason, 'fraudulent trading' is an offenceconsistently misunderstood by practitioners, and

(2 ) in light of what I will have to say about the criminalliability of professional advisers in my second lecture, thecorrection of the popular view of what Buckley J's dictummeant (another confirmation of the case of Sinclair) needs to bewidely known.

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Hku Lect Conspir