D.P.P. v. Nock: Towards a Construction of Statutory Conspiracy?
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01518.x |
| Date | 01 January 1979 |
| Author | Robina Dexter |
| Published date | 01 January 1979 |
Jan.
19791
NOTES OF CASES
107
CONSP~RACY?
IN
D.P.P.
v.
Nock,’
the House of Lords was called upon to deal
with the problem
of
the
actus
reus
of criminal conspiracy. The case
fell to be considered at common law, because the relevant events
had occurred before the new law of conspiracy, contained in the
Criminal Law Act
1977,
came into force. Nock and his co-accused
had agreed together to obtain cocaine by separating it from a
substance
of
which they had obtained possession.
In
fact, it was
impossible to obtain cocaine, by that method or any other, from
the substance in question. The Court
of
Appeal dismissed the
appeals against conviction for criminal conspiracy, stressing that the
essential element of conspiracy is the fact of agreement.
If
an
agreement is to do an unlawful act then, said the Court of Appeal,
it
is
a
criminal agreement. Lawton L.J. said:
“
The fact that the
unlawful agreement could not be carried out
. . .
is irrelevant,
. .
.
The test is: what is the act forbidden by the law, not what
will be the consequences of doing the forbidden act?
”
The
“forbidden act,” in the Court of Appeal’s view, was the act of
agreeing to try to achieve
a
criminal goal. Nevertheless, the court
certified the following point of law for the House of Lords:
“Whether an agreement which had as
its
purpose the production
of
cocaine (being an act forbidden by section
4
of the Misuse of
Drugs Act
1971)
was not an indictable conspiracy because the
evidence showed that the agreement was to pursue
a
oourse
of
action which could never in fact have produced cocaine.”
*
In the House of Lords, Lord Scarman preferred to reformulate
the question in terms similar to those used in the new statutory
definition‘:
‘‘
.
. .
when two or more persons agree upon a course
of conduct with the object of committing
a
criminal offence, but
unknown to them, it is not possible to achieve their object by the
course of conduct agreed upon, do they commit the crime of
conspiracy?
”
a
The House reversed the Court of Appeal’s decision
and, in doing
so,
followed the path set down in
Haughton
v.
Smith,”
where the House had held that an attempt to do something which,
by reason
of
impossibility, could never amount to or involve the
commission of a crime, was not itself a criminal attempt. In that
case, Viscount Dilhorne had said:
“
.
.
.
it matters not that the
crime cannot be committed as a result of physical impossibility
.
.
.
D.P.P.
V.
NOCK:
TOWARDS
A
CONSTRUCTION
OF
STATUTORY
~
1
119781
3
W.L.R.
57.
2
Ibid.
p.
61.
3
Ibid.
p.
62.
4
Criminal Law Act 1977,
s.
1
(1):
“
.
. .
if
a person agrees with any other person
or
persons that
a
course
oP
conduct shall be pursued which will necessarily amount
to
or
involve the commission
of
any offcncc or offenccs by one
or
more parties to the
agreement
if
the agreement
is
carried out in accordance with their intentions, he
is
guilty
of
conspiracy to commit the offence or offences
in
question.”
5
119781
3
W.L.R.
57,
66.
6
[
19751 A.C. 476.
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