The Fame, Fortunes and Future of the ‘Rump of the Common Law’: Conspiracy to Defraud and English Law (Part 1)
| Published date | 01 October 2000 |
| Author | Barbara Ann Hocking |
| DOI | 10.1177/002201830006400508 |
| Date | 01 October 2000 |
| Subject Matter | Article |
The
Fame,
Fortunes
and
Future
of
the
'Rump
of
the
Common
Law':
Conspiracy
to
Defraud
and
English
Law (Part
1)
Barbara
Ann
Hocking*
Conspiracy
has
featured in situations of police
entrapment
and
issues of
fair trial
on
many
occasions. For
such
apersistent offence, it is
unusual
that
it
has
only
occasionally
come
before
the
highest courts. Conspiracy
trials are
often
lengthy
and
the
question
of
whether
they
can
constitute
fair trials
has
only recently
been
considered by
the
High
Court
of
Australia.I
There
has
long
been
debate
about
the
uses'
and
implications
of this offence.
It
appears to feature persistently in appeals concerning
police practices
and
lengthy trials
in
drugs.'
bombings," robberies?
and
fraud? cases. Indeed,
the
Criminal Code Committees in
both
Australia
and
England
have
recognised
the
place for conspiracy to defraud
in
the
context
of
what
they
classify as difficult-to-deal-with 'dishonesty
offences'."
It
has only recently
been
observed in this
Journal
that
a
recent Australian High Court decision poses
renewed
questions for
English law," This article (Parts 1
and
2) considers
some
of
those
re-
newed
questions.
It
looks at
the
reason for
the
retention
and
persistence
*Faculty of Law/Justice Studies, QUT, Queensland, Australia 4059.
1Frugtniet v
Victoria
(1997) 96 A Crim R 189, perKirby J.
2 See, e.g. G. Robertson,
Whose
Conspiracy?
(NCCL: London, 1974).
3 A classic
example
is
that
provided by Peck,
who
notes that, in Chapman and
Denton,
police
persuaded
auser of
amphetamines
to
take
part
in a conspiracy to supply,
who
was
then
convicted. The
Court
of Appeal considered
that
the
defendant
had
not
been
predisposed,
and
that
entrapment
had
taken
place,
but
that
this could be considered in
terms
of a reduction in
the
sentence. Peck refers to
the
case in a
comment
on
the
European
Court
of
Human
Rights
judgment
in
Teixeira
de
Castro
v
Portugal
which
dedsion
is seen to highlight
the
potential for
undercover
entrapment
operations to
breach Article 6 of
the
European
Convention
on
Human
Rights which
guarantees
a
fair trial. This finding is seen to 'contrast starkly' with some
recent
Court
of Appeal
dedsions
on
entrapment
evidence admissibility, see L. Peck, 'Covert Polidng: Entrap-
ment
and
Human
Rights' (1998) 148
NU
935 at 935.
4 See B. Hocking, 'Conspiracy as a Very
Enduring
Practice: Part
One'
(1998) 8TheIrish
Journal of Criminal Law 1-19.
5 For example,
Chalkley
and
Jeffries
[19981 2 Cr App R 79
where
police officers (with
permission from an authorising officer) installed alistening device in
the
appellants'
home,
using
the
only practicable
method
of installation, which was arresting
the
men
on
another
matter
and
removing
them
and
their
children from
the
home
temporarily.
The evidence was ruled admissible
and
the
appellants
then
changed
their
pleas to
guilty.
6 For example, Maher (1986) 21 A Crim R 316.
7Australian Model Criminal Code Officers' Committee, ch. 3,
Conspiracy
to
Defraud
Report,
1997, i-iv; Great Britain Law Commission, CriminalLaw:
Conspiracy
to
Defraud,
Law Corn, No. 228 (1994).
8 M. Jefferson, 'Conspiracyto Defraud
and
Dishonesty' (1998) 62 TheJournal of Criminal
Law 580.
506
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