R v Saik
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 03 May 2006 |
| Neutral Citation | [2006] UKHL 18 |
| Date | 03 May 2006 |
| Court | House of Lords |
[2006] UKHL 18
Appellate Committee
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Ivan Krolick
Nicola Shannon
(Instructed by Bishop & Light)
Respondents:
Nigel Peters QC
Duncan Penny
(Instructed by Revenue and Customs
Prosecutions Office)
My Lords,
This appeal raises questions about the ingredients of the statutory offence of conspiracy and their application in the circumstances of this case. Shorn of its complexities the context is a charge of conspiracy to launder money brought against the appellant, Mr Abdulrahman Saik. He operated a bureau de change in London, near Marble Arch. At his trial he pleaded guilty, subject to the qualification that he did not know the money was the proceeds of crime. He only suspected this was so. This qualified plea was accepted. The issue before your Lordships is whether the offence to which the appellant pleaded guilty in this qualified way is an offence known to law. Reasonable grounds for suspicion are enough for the substantive offence of laundering money. But are they enough for a conspiracy to commit that offence?
The mental ingredient in the statutory offence of conspiracy has given rise to difficulty. Some of the case law is confusing, and the academic commentators do not always speak with one voice. The best way to tackle this conundrum is to consider first the ingredients of criminal conspiracy, then apply this approach to a conspiracy to commit the substantive offence of laundering, and finally consider the complication introduced by the form of the plea entered by the appellant.
The statutory offence of criminal conspiracy
The Criminal Law Act 1977 redefined conspiracy and put it on a statutory footing. The offence-creating provision is section 1(1). So far as material for present purposes section 1(1), as substituted by the Criminal Attempts Act 1981, provides:
'…if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions … (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement …he is guilty of conspiracy to commit the offence or offences in question.'
The offence therefore lies in making an agreement. Implicitly, the subsection requires also that the parties intend to carry out their agreement. The offence is complete at that stage. The offence is complete even if the parties do not carry out their agreement. The offence is complete even if the substantive offence is not thereafter committed by any of the conspirators or by anyone else.
Thus under this subsection the mental element of the offence, apart from the mental element involved in making an agreement, comprises the intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators. The conspirators must intend to do the act prohibited by the substantive offence. The conspirators' state of mind must also satisfy the mental ingredients of the substantive offence. If one of the ingredients of the substantive offence is that the act is done with a specific intent, the conspirators must intend to do the prohibited act and must intend to do the prohibited act with the prescribed intent. A conspiracy to wound with intent to do grievous bodily harm contrary to section 18 of the Offences of the Person Act 1861 requires proof of an intention to wound with the intent of doing grievous bodily harm. The position is the same if the prescribed state of mind regarding the consequence of the prohibited act is recklessness. Damaging property, being reckless as to whether life is endangered thereby, is a criminal offence: Criminal Damage Act 1971, section 1(2). Conspiracy to commit this offence requires proof of an intention to damage property, and to do so recklessly indifferent to whether this would endanger life.
An intention to do a prohibited act is within the scope of section 1(1) even if the intention is expressed to be conditional on the happening, or non-happening, of some particular event. The question always is whether the agreed course of conduct, if carried out in accordance with the parties' intentions, would necessarily involve an offence. A conspiracy to rob a bank tomorrow if the coast is clear when the conspirators reach the bank is not, by reason of this qualification, any less a conspiracy to rob. In the nature of things, every agreement to do something in the future is hedged about with conditions, implicit if not explicit. In theory if not in practice, the condition could be so far-fetched that it would cast doubt on the genuiness of a conspirator's expressed intention to do an unlawful act. If I agree to commit an offence should I succeed in climbing Mount Everest without the use of oxygen, plainly I have no intention to commit the offence at all. Fanciful cases apart, the conditional nature of the agreement is insufficient to take the conspiracy outside section 1(1).
Section 1(2) qualifies the scope of the offence created by section 1(1). This subsection is more difficult. Its essential purpose is to ensure that strict liability and recklessness have no place in the offence of conspiracy. The subsection provides:
'Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless 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 agreement 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.'
Under this subsection conspiracy involves a third mental element: intention or knowledge that a fact or circumstances necessary for the commission of the substantive offence will exist. Take the offence of handling stolen goods. One of its ingredients is that the goods must have been stolen. That is a fact necessary for the commission of the offence. Section 1(2) requires that the conspirator must intend or know that this fact will exist when the conduct constituting the offence takes place.
It follows from this requirement of intention or knowledge that proof of the mental element needed for the commission of a substantive offence will not always suffice on a charge of conspiracy to commit that offence. In respect of a material fact or circumstance conspiracy has its own mental element. In conspiracy this mental element is set as high as 'intend or know'. This subsumes any lesser mental element, such as suspicion, required by the substantive offence in respect of a material fact or circumstances. In this respect the mental element of conspiracy is distinct from and supersedes the mental element in the substantive offence. When this is so, the lesser mental element in the substantive offence becomes otiose on a charge of conspiracy. It is an immaterial averment. To include it in the particulars of the offence of conspiracy is potentially confusing and should be avoided.
The phrase 'fact or circumstance necessary for the commission of the offence' is opaque. Difficulties have sometimes arisen in its application. The key seems to lie in the distinction apparent in the subsection between 'intend or know' on the one hand and any particular 'fact or circumstance necessary for the commission of the offence' on the other hand. The latter is directed at an element of the actus reus of the offence. A mental element of the offence is not itself a 'fact or circumstance' for the purposes of the subsection.
This contrast can be illustrated by the offence of entering into an arrangement whereby the retention by another person (A) of A's proceeds of crime is facilitated, knowing or suspecting A has been engaged in crime: section 93A of the Criminal Justice Act 1988, now repealed. The requirement that the defendant must know or suspect A's criminal history is an element of the offence, but it is a mental element. The need for the defendant to have this state of mind is not a fact or circumstance within section 1(2). Another ingredient of the offence is that the property involved must be the proceeds of crime. That is a fact necessary for the commission of the offence and section 1(2) applies to that fact. The contrary analysis in R v Sakavickas [2005] 1WLR 857, 863, para 17, was erroneous.
The genesis of this feature of the legislation lies in the ingredients of the common law offence of conspiracy as enunciated by your Lordships' House in R v Churchill [1967] 2 AC 224. There the defendant was charged with the common law offence of conspiracy to commit a statutory offence. The statutory offence was an offence of strict liability. The House held that the conspirator was not guilty of the offence of conspiracy if on the facts known to him the act he agreed to do was lawful.
This principle was accepted by the Law Commission in its subsequent report on Conspiracy and Criminal Law Reform (Law Com no 76) para 1.39:
'What the prosecution ought to have to prove is that the defendant agreed with another person that a course of conduct should be pursued which would result, if completed, in the commission of a criminal offence, and further that they both knew any facts they would need to know to make them aware that the agreed course of conduct would result in the commission of the offence.'
This report led to the enactment of the Criminal...
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