[1] Criminal law in some countries or for some conspiracies may require that at least one overt act be undertaken in furtherance of that agreement to constitute an offense.
For the purposes of concurrence, the actus reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted or cannot be traced.
Prosecutors choose to name persons as unindicted co-conspirators for a variety of reasons including grants of immunity, pragmatic considerations, and evidentiary concerns.
At common law, the crime of conspiracy was capable of infinite growth, able to accommodate any new situation and to criminalize it if the level of threat to society was sufficiently great.
[3] Conspiracy to defraud was defined in Scott v Commissioner of Police of the Metropolis per Viscount Dilhorne:[4] "to defraud" ordinarily means ... to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled.... an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right of his suffices to constitute the offence.Section 5(3) Criminal Law Act 1977 preserved the common law offence of conspiracy to corrupt public morals or of conspiracy to outrage public decency.
[7] Section 5(1) of the Criminal Law Act 1977 does not affect the common law offence of conspiracy if, and in so far as, it can be committed by entering into an agreement to engage in conduct which tends to corrupt public morals, or which outrages public decency, but which does not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement.
The common law offences were seen as unacceptably vague and open to development by the courts in ways which might offend the principle of certainty.
Section 1(1) of the Criminal Law Act 1977 provides: if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – he is guilty of conspiracy to commit the offence or offences in question.Section 1A (inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998, s. 5) bans conspiracies part of which occurred in England and Wales to commit an act or the happening of some other event outside the United Kingdom which constitutes an offence under the law in force in that country or territory.
Lord Bridge in R v Anderson, quoted in R v Hussain, said:[10] [A]n essential ingredient in the crime of conspiring to commit a specific offence or offences under section 1(1) of the Act of 1977 is that the accused should agree that a course of conduct be pursued which he knows must involve the commission by one or more of the parties to the agreement of that offence or those offences.Lord Bridge in R v Anderson also said: But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of action was intended to achieve.
[13] In Kamara v Director of Public Prosecutions,[14] nine students, who were nationals of Sierra Leone, appealed their convictions for conspiracy to trespass, and unlawful assembly.
These persons, together with others who did not appeal, conspired to occupy the London premises of the High Commissioner for Sierra Leone in order to publicize grievances against the government of that country.
Upon their arrival at the commission, they threatened the caretaker with an imitation firearm and locked him in a reception room with ten other members of the staff.
The students then held a press conference on the telephone, but the caretaker was able to contact the police, who arrived, released the prisoners, and arrested the accused.
In this case the Court felt that the public interest was clearly involved because of the statutory duty of the British Government to protect diplomatic premises.
A 1962 majority in the House of Lords not only found the appellant guilty of a statutory offence (living on the earnings of prostitution), but also of the "common law misdemeanour of conspiracy to corrupt public morals".
[22] Conspiracy has been defined in the United States as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions.
Such laws allow the government to charge a defendant regardless of whether the planned criminal act has been committed or the possibility of the crime being carried out successfully.
[26] In United States v. Shabani, the U.S. Supreme Court ruled that this "overt act" element is not required under the federal drug conspiracy statute, 21 U.S.C.
Such unindicted co-conspirators are commonly found when the identities or whereabouts of members of a conspiracy are unknown, or when the prosecution is concerned only with a particular individual among the conspirators.
This is common when the target of the indictment is an elected official or an organized crime leader, and the co-conspirators are persons of little or no public importance.
More famously, President Richard Nixon was named as an unindicted co-conspirator by the Watergate special prosecutor in an event leading up to his eventual resignation.
However, ultimately "the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities".
[40][41] The evidence was not necessarily complete due to encrypted, deleted, or unsaved communications as well as false, incomplete, or declined testimony.