Conspiracy: Mens Rea
| Author | Alan Reed |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | http://doi.org/10.1350/jcla.2005.69.6.469 |
| Subject Matter | Court of Appeal |
Conspiracy: Mens Rea
R v Sakavickas [2005] EWCA Crim 2686, [2005] Crim LR 293
The issues in this case were the ingredients of s. 1(2) of the Criminal Law
Act 1977 and the required knowledge of circumstances on the part of
the conspirator. More specifically, it addressed the nature of intention as
part of the mens rea of the offence.
The appellants were convicted of a statutory conspiracy under the
1977 Act with the offence alleging a conspiracy to assist another to
retain the benefit of criminal conduct. The conspiracy alleged was an
agreement to commit the offence contrary to s. 93A of the Criminal
Justice Act 1988, which prohibited a person from entering into or being
otherwise concerned in an arrangement whereby the retention or con-
trol of another person’s criminal proceeds were facilitated, when he
knew or suspected that the other person had been engaged in or had
benefited from criminal conduct. The appeal centred upon whether
mere suspicion of the nefarious activities of other ‘conspirators’ sufficed,
or whether more direct knowledge had to be identified. The appellants,
thus, contended that the alleged offender and at least one other party to
the conspiracy had to know (the direct provenance) or intend to know
that the money to be laundered was or was to be the proceeds of another
person’s crime when the conduct constituting the offence contrary to
s. 93A of the 1988 Act was to take place.
HELD, DISMISSING THE APPEALS, it was the mere suspicion, as opposed
to the knowledge of the fact that an individual was engaged in nefarious
behaviour, which crystallised liability. For the purposes of s. 1(2) of the
1977 Act the mere suspicion equated to a ‘fact or circumstance necessary
for the commission of the offence’. In essence, although it was a pre-
requisite for the offence that an alleged conspirator had to have know-
ledge of that suspicion, nonetheless such ‘knowledge’ could be
transplanted from his own state of mind. Thus, the prosecution had to
prove the suspicion of the defendant and, in doing so, they inevitably
proved knowledge of that suspicion.
COMMENTARY
The decision in this case reveals some interesting features of statutory
conspiracy. The starting premise is that recklessness as to circumstances
will not do. It was established by the House of Lords in Churchill v Walton
[1967] 2 AC 236 that conspiracy at common law involves mens rea in the
full sense of intention—strict liability, recklessness or negligence does
not apply. Section 1(2) of the Criminal Law Act 1977 was intended to
embody the identical principle for statutory conspiracies and provides:
(2) Where liability for any offence may be incurred without knowledge
on the part of the person committing it of any particular fact or circum-
stance necessary for the commission of the offence, a person shall never-
theless not be guilty of conspiracy to commit that offence by virtue of
subsection (1) above unless he and at least one other party to the agree-
ment intend or know that that fact or circumstance shall or will exist at the
time when the conduct constituting the offence is to take place.
469
The Journal of Criminal Law
The effect of the above provision is that arguably it is an insufficient
mens rea for a conspiracy offence that the defendant is merely reckless as
to circumstances which form part of the elements for the full offence.
This proposition can be...
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