DPP v Nock (on Appeal from the Court of Appeal (Criminal Division)), ; DPP v Alsford (on Appeal from the Court of Appeal (Criminal Divisional)),

My Lords

I have had the advantage of reading in advance the speech to be delivered by my noble and learned friend Lord Scarman, with which I am in full agreement. He draws attention to the limited terms of the agreement between the conspirators that was proved in evidence. To use the formulation of this class of conspiracy, now to be found in section 1 of the Criminal Law Act 1977, the course of conduct to be pursued was expressed with particularity in the agreement.

The classic definition of this class of criminal conspiracy was propounded by Willes J. in Mulcahy v. The Queen (1868) L.R. 3 H.L. 306, 317: and has already been referred to by my noble and learned friend. The full quotation is worth reciting:—

"A conspiracy consists … in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means."

This emphasises the auxiliary nature of the crime and its resemblance to that other auxiliary crime "attempt" in which the "proximate act" of the accused takes the place of the agreement in conspiracy. So to agree to pursue a course of conduct which, if carried out in accordance with the intention of those agreeing to it, would not amount to or involve the commission of any offence, would not have amounted to criminal conspiracy at common law nor does it now constitute an offence of conspiracy under section 1 of the 1977 Act.

Your Lordships' decision to allow this appeal, however, need not cause the alarm and despondency predicted by those prosecuting authorities who hoped to find in the law of conspiracy the only available life-buoy in what appears to be regarded as the shipwreck of Reg. v. Ring (1892) 17 Cox C.C. 491 as a result of its collision with the recent decision of this House in Haughton v. Smith[1975] A.C. 476.

Reg. v. Ring was a typical case of a gang of railway pick-pockets. They were charged with attempting to steal from the person of a person unknown and with assaulting a person unknown with intent to commit a felony. They had hustled a woman on the railway platform and had tried to find the pocket of her clothes, but had not been successful. Their conviction was upheld by the Court for Crown Cases Reserved. The short judgment of the court was delivered by Lord Coleridge C.J. in the course of which he said that the earlier case of Reg. v. Collins (1864) 9 Cox C.C. 497, had been overruled by Reg. v. Brown (1889) 24 Q.B.D. 357, and was bad law. It was the purported overruling of Reg. v. Collins that was repudiated by this House in Haughton v. Smith. No member of the Appellate Committee expressed the view that the actual decision in Reg. v. Ring was wrong.

The facts of the two cases were not dissimilar, but the indictments were in different terms. In Reg. v. Collins, the offence charged was restricted to an attempt to steal from the person of a woman unknown property located in the very pocket in which one of the accused had put his hand, whereas in Reg. v. Ring the offences charged were an attempt to steal from the person generally and an assault with intent to commit a felony. At the time Reg. v. Collins was decided, in order to support a charge of stealing property or attempting to steal, it was necessary to prove that what was stolen or was the subject of the attempt to steal, complied strictly with the description of it in the indictment: Reg. v. McPherson7 Cox C.C. 281.

The modern pick-pocket working with a confederate, as is advisable if success is to be achieved, is hardly likely to have agreed with his confederate that they will restrict their activities to stealing from a single pocket of a single individual and desist from all further efforts if that particular pocket is found to contain nothing. The agreement to be inferred from their conduct, as no doubt it would have been by the jury in both Reg. v. Collins and in Reg v. Ring, had charges of conspiracy been brought would not have been so limited. The course of conduct agreed to be pursued would be to do all that was necessary or expedient to steal whatever property of value they could find upon whoever was carrying property on their person in an accessible place.

It seems to me, however, that even in relation to the solitary pickpocket who works alone and is apprehended before he has succeeded in finding something worth appropriating in any of those pockets or handbags to which he has been seen to direct his hand, Haughton v. Smith and the earlier case of Reg. v. Easom [1971] 2 Q.B. 315 have come to be regarded as authorities for a wider proposition than they or either of them laid down.

In Reg. v. Easom the accused had been convicted of stealing a handbag and its specified contents which were of little value. The accused, in a darkened cinema, had surreptitiously removed a handbag from where its owner had placed it by her side. On inspection he had found its contents not worth stealing and had left it there intact within easy reach of its owner. He was charged with the complete offence of theft and at his trial the judge took the view that what had been proved amounted to the full offence or nothing. He refused to leave to the jury the alternative of attempting to steal. The appeal was allowed upon the ground of misdirection by the judge as to the intent of the accused (at the time he took the bag) to deprive the owner permanently of the property specified in the indictment. In dealing obiter with the possibility of a conviction for attempted theft the Court of Appeal said:

"all, or, at least, much, depends upon the manner in which the charge is framed."

They emphasised that their view that such a conviction would not lie in Easom's case was dependent on the fact that on that particular indictment the only attempt of which the accused could have been convicted would have been an attempt to steal the particular articles specified in the indictment and no others.

Partington v. Williams (1976) 62 Cr. App. R. 220 was about a charge of attempted theft of money from an empty wallet which was not being carried on the person but was in a drawer. The Court of Appeal there took the view that this House in Haughton v. Smith had overruled the actual decision in Reg. v. Ring and not merely, as I have suggested, disapproved of the purported over-ruling of Reg. v. Collins which is to be found in the judgment in Reg. v. Ring. They went on to suggest that whenever the accused is charged with an attempt to steal property and the proximate act relied upon as the actus reus ( pace Lord Hailsham of St. Marylebone) is that the accused has inserted his hand in some place where something worth stealing is likely to be found the onus lies upon...