R v Ayres

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton,Lord Scarman,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman
Judgment Date16 February 1984
Judgment citation (vLex)[1984] UKHL J0216-1
Date16 February 1984

[1984] UKHL J0216-1

House of Lords

Lord Fraser of Tullybelton

Lord Scarman

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Templeman

Regina
(Respondent)
and
Ayres
(Appellant)
Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich, and I agree with it. For the reasons given by him I would dismiss this appeal.

Lord Scarman

My Lords,

2

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I would dismiss the appeal.

Lord Bridge of Harwich

My Lords,

3

Part I of the Criminal Law Act 1977 (the Act) effected a radical amendment of the law of criminal conspiracy. Criminal conspiracies are now of four kinds only:

  • (1) A conspiracy to commit one or more substantive criminal offences contrary to section 1 of the Act. The maximum penalty for such a conspiracy is the maximum appropriate to the substantive offence or, if more than one, the most serious of the substantive offences involved in the conspiracy: section 3. Proceedings under section 1 in respect of a conspiracy confined to summary offences may not be instituted except by or with the consent of the Director of Public Prosecutions: section 4(1).

  • (2) A conspiracy made an offence as such by some other enactment, e.g. section 3(a) of the Explosive Substances Act 1883, which is expressly excluded from the scope of section 1 of the Act by section 5(6).

  • (3) A common law conspiracy to defraud: section 5(2).

  • (4) A common law conspiracy to corrupt public morals or outrage public decency: section 5(3).

4

The surviving common law conspiracies are subject to no limit as to penalty and require no statutory consent to the institution of proceedings.

5

My Lords, in this appeal we are not directly concerned with conspiracies under heads (2) and (4) but only with the relationship between conspiracies under heads (1) and (3). An early conflict of judicial opinion emerged as to where the line of demarcation should be drawn between statutory conspiracies under section 1 of the Act and common law conspiracies to defraud in relation to a large and important class of conspiracies which, on their face, appear to be capable of falling within either category. It is that conflict which your Lordships must now resolve in this appeal.

6

If the phrase "conspiracy to defraud" is given its widest connotation, it must include every conspiracy of which one element is that the execution of the agreement constituting the conspiracy will involve that the victim is defrauded. Those who would ascribe this wide meaning to the phrase in section 5(2) of the Act have seized upon the words of Viscount Dilhorne in Scott v. Metropolitan Police Commissioner [1975] A.C. 819 at page 840:

". … in my opinion it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement between two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud".

7

It may be important to remember that this "definition", if such it was, was given in a case where the criminal conspiracy under consideration did not involve the commission of any identifiable offence other than conspiracy and that Viscount Dilhorne's objective in using the words quoted seems to have been to emphasise that this did not prevent the agreement in question amounting to a conspiracy to defraud. Indeed, one of the arguments advanced for the appellant and rejected by the House in that case was that deceit was an essential element of a common law conspiracy to defraud. Be that as it may, Viscount Dilhorne's words, if taken as a comprehensive definition of the offence of conspiracy to defraud, inevitably embrace conspiracies to commit a multitude of other specific offences, as, for example, robbery, burglary, theft, obtaining by deception, most offences of forgery, and a formidable list of minor offences created by statute, many of them summary offences only, in which an element of fraud is involved — in short every offence of which the ingredients include (a) dishonesty and (b) either some injury to private proprietary rights or some fraud upon the public. This category of offences, of which the examples given above are by no means exhaustive, must cover a very wide band of the entire spectrum of crime. The only other band of comparable importance would seem to be offences against the person.

8

One school of judicial thought with regard to the construction of sections 1 and 5 of the Act holds that any conspiracy to commit an offence involving an element of fraud in the sense explained in the foregoing paragraph is properly indicted as a common law conspiracy to defraud. The contrary view is that, whenever the conspiracy, if carried into execution, would involve the commission of a substantive offence, notwithstanding that the offence involves an element of fraud, the offence committed is a statutory conspiracy under section 1 of the Act and should be indicted as such.

9

Before turning to the authorities and arguments bearing on this conflict of opinion, it is well to remove one source of misunderstanding. Some judicial dicta on the subject might be understood as suggesting that the choice whether to prosecute for a statutory conspiracy under section 1 of the Act or for a common law conspiracy to defraud is one dictated by convenience and that in many cases both options may be open. It was indeed argued for the Crown before your Lordships that the two offences are not mutually exclusive. I have no hesitation at the outset in rejecting this argument. Section 5(2) of the Act, which preserves conspiracy to defraud at common law as an exception to the general abolition of the offence of common law conspiracy by section 5(1) concludes with the words:

". … and section 1 above shall not apply in any case where the agreement in question amounts to a conspiracy to defraud at common law."

10

I can see no escape from the stark choice of alternatives which this plain language imposes. According to the true construction of the Act, an offence which amounts to a common law conspiracy to defraud must be charged as such and not as a statutory conspiracy under section 1. Conversely a section 1 conspiracy cannot be charged as a common law conspiracy to defraud. It is, in my opinion, of considerable importance to bear in mind the implications of the fact that the offences are thus mutually exclusive in approaching the problem of construction.

11

The controversy first emerged in a ruling of Drake J. in Reg. v. Quinn (reported only at [1978] Crim. L.R. 750) that a conspiracy to steal was properly charged as a common law conspiracy to defraud. A few months later the issue reached the Court of Appeal (Lord Widgery C.J., Cumming-Bruce L.J. and Neill J.) in Reg. v. Walters and others 69 Cr. App. R. 115. The appellants appealed against a conviction for common law conspiracy to defraud in circumstances in which they had been clearly guilty of conspiracy to steal motor cars and to obtain money by deception by selling them. The point was taken that they could have been properly convicted only under section 1 of the Act. In giving the judgment of the court, Lord Widgery C.J. said at page 118:

"We are not going to lay down any final conclusions about this case. When a new point of this kind has to be developed, it is better if it is developed slowly. We shall look at the circumstances of this case and see how the statutory provisions work out in relation to it."

12

He proceeded to show that the elements of a conspiracy to defraud were proved, pointed out that section 5 of the Act preserves that offence and that proper directions were given to the jury. He concluded:

"A conviction having been entered there is nothing more for this Court to do in this case on this day."

13

Referring to the ruling by Drake J. in Reg. v. Quinn, Lord Widgery C.J. added:

". … faced with this prospect, he took the firm view, which personally I support as at present advised, that it is perfectly proper to regard a conspiracy to steal as something within a conspiracy to defraud, and accordingly, therefore, if truly the offence is conspiracy to steal, the indictment is not rendered invalid merely because it charges a conspiracy to defraud. In many ways it must be preferable that the conspiracy to defraud should be regarded as the greater container, as it were, and able to mop up conspiracy to steal if and when that is convenient having regard to the nature of the case."

14

Very soon after this decision the point was raised again in the Court of Appeal in Reg. v. Duncalf and others 69 Cr. App. R. 206, before Roskill L.J., as he then was, Ormrod L.J. and Watkins J. This was a simple case of a conspiracy to steal where the appellants, who had been indicted and convicted under section 1 of the Act, argued that they could only properly have been convicted of conspiracy to defraud at common law. The appeal was dismissed. I cannot do justice to the closely reasoned and careful reserved judgment of the court, delivered by Roskill L.J., without quoting from it at some length beginning at page 211:

"It seems to us that the structure of this part of the 1977 Act is a little curious. On might have expected section 5(1) to appear as section 1(1), the common law offence of conspiracy being abolished (subject, of course, to the provisions of s. 5(2) and 5(3) before the new statutory offence was created by section 1(1). But the draftsman has in his wisdom decided otherwise. The Act starts in section 1(1) by defining the new offence of conspiracy, the definition being stated to be subject to the following provisions of this Part of the...

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