Mens Rea in Conspiracy

Published date01 May 1956
DOIhttp://doi.org/10.1111/j.1468-2230.1956.tb00361.x
Date01 May 1956
MENS
REA
IN
CONSPIRACY
X
AND
Y
plan together to kidnap
Z.
The former intends to carry
out the project; but
Y,
unknown to
X,
has no such intention,
although his language and actions lead
X
to believe he has.
Indeed before the plan is carried out
Y
informs the police and
X
is arrested and charged with conspiracy. Can
X
be convicted
of that offence?
The precise problem does not seem to have come before an
English court, which is possibly why most English textbook
writers are silent on the question, not recognising the possibility of
difficulty in this aspect of the law of conspiracy. But
Mr.
Turner,I
following earlier editions
of
Kenny, mentions it in a footnote only
to show that the problem exists: for he docs not suggest an
answer. Professor Glanville Williams, however, comes out strongly
in favour of liability.2
The majority of the Supreme Court of Canada in the recent
case of
R.
v.
O'Bn'en5
took the opposite view. There the trial
judge told the jury that, whether
or
not
Y
intended to go through
with the plan, if in fact he had plotted with
X
to kidnap
Z
then
X
was guilty. The British Columbia Court of Appeal, by
a
majority, held that this was a misdirection, since
it
did not leave
open to the jury the question whether
Y
had in fact
"
agreed
"
with
X
so
as to produce an indictable conspiracy. The Supreme
Court of Canada, also by a majority, uphe!d the decision that
there had been a misdirection and the order for a new trial.
The argument of the majority went in this fashion: Conspiracy
is the agreement of two
or
more to effect an unlawful purpose.'
Two people cannot agree unless they both intend to carry out
the purpose which
is
stated to be the object of their combination.
Therefore there is no agreement, and consequently no conspiracy,
where one of the two never intends to carry out the unlawful
purpose.
Thus Taschereau
J.
said
:
"
It
is
.
.
.
essential that the conspirators have the
intention
to agree
and this agreement must be complete. There must
also be a common design to do something unlawful.
.
.
.
I
have
no doubt that there must exist
an intention to put the common
1
Kenny's
Outline8
of
Criminal Law
(1952) at p. 339.
a
Criminal Law: The General Part
(1953)
at
pp. 620-621.
3
"55
2
D.L.R.
311.
4
For
ke
purposes of this discussion it
is
immaterial why the purpose
is
unlawful and whether
n
combination
to
effect
n
lawful purpose by unlawful
means
is
itself unlawful. Hence the shorter phrase will be used for
the
aake
of simplicity.
6
Ibid.
at
p.
313: the italics are
his.
276

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