What is a conspiracy and why are they sentenced as harshly as the substantive offence?

This article was written by Lucie Hall. 

What is a conspiracy?

A conspiracy is an agreement between two or more people to commit an unlawful act. It is an incomplete offence, which means that the crime is committed upon the formation of the agreement itself, regardless of whether the planned offence is ever carried out. Therefore, a person can be convicted of conspiracy to murder even if the murder is never carried out.

In order to convict someone of a conspiracy the prosecution must prove:

1. An agreement was made between two or more parties;
2. The agreement was to commit a criminal offence;
3. That person intended to be a party to an agreement to do an unlawful act; and
4. That person and another knew or intended that what was being planned was an offence.

Conspiracies can be difficult offences to prove as the prosecution must convince the jury beyond reasonable doubt that the defendant knowingly took part in a conspiracy to commit crime. Typically, at trial the prosecution will attempt to use evidence to infer that there was an agreement. This is often done through evidence of:

1. Patterns of telephone contact;
2. Frequency of telephone contact on key dates or surrounding the offence
3. Meetings between parties on key dates; including observations and cell-site data analysis;
4.  Telephone download material (messages and calls);
5. In some cases, covert recordings.

Circumstantial evidence such as the above, when taken together, can result in a strong inference of a conspiracy.

Defences to criminal conspiracy:

Often, parties will simply deny that there was an agreement and put forward alternative explanations for any evidence of a conspiracy. Common law defences such as duress is a can also apply a criminal conspiracy charge.

Why are criminal conspiracies sentenced as harshly as the substantive offence?

The maximum sentence for a conspiracy charge is generally the same as the maximum penalty for the substantive offence that was the initial object of the agreement. For example, conspiracy to murder carries a maximum life imprisonment, the same as murder.

However, conspiracies are often sentenced more harshly, or just as harshly, as the substantive offence. This is often surprising to offenders, as in some cases the substantive offence was never committed.

There are several reasons that conspiracies are often perceived as being as serious, or even more serious than the substantive offence :

1. The agreement itself is seen as the dangerous act and demonstrates a high degree of culpability - an agreement dramatically increases the probability that a crime will be committed.
2. A conspiracy requires a higher level of planning, coordination and sophistication that is not often present in a single substantive offence. Danger therefore arises long before the substantive offence could occur
3. Collective criminality is considered more harmful than an induvial or impulsive criminal act. Organised or collective crime is more dangerous to society than individual substantive offences. It enables larger criminal conduct like terrorism and drug supply. It is harder to detect and disrupt, and it can involve criminal networks.
4. Large-scale crimes usually begin with conspiracy - major offences like fraud rings and trafficking often start with conspiracy. By criminalising the agreement, the law can punish organisers before harm occurs and disrupt enterprises early. This justifies strong penalties even if the substantive offence is never committed.

Sonn Macmillan Walker have many Crown Court Litigators specialising in large scale conspiracies. Please contact us should you require advice or if you need representation on a criminal conspiracy matter.