Who is responsible criminally?
Conspiracy is a pretty scary word. But just because I know somebody who is involved in criminal activity and I’m associated with them, does that mean I’m responsible criminally too?
Conspiracy is where two or more people agree to commit a crime, to put it in the simplest form. To convict somebody of conspiracy is obviously easier since you do not have to prove commission of a substantive offence. You have to prove evidence of agreement to commit an offence.
The word itself conjures up all sorts of ideas of behind the doors, darkened rooms, smoked-filled, people planning and so forth. It isn’t that.
Conspiracy is about – well, there’s all this inappropriate contact. Something must be going on. As a result of this, or coincidental with this contact which we don’t have a great deal of information about, apart from perhaps phone traffic and some paper work that goes between them… there is a fraud, therefore they all must be involved in the planning of the fraud. They ask a jury to believe that. Its the defence teams responsibility to actually say – well with respect this is a smoke screen. You’ve got to be sure of guilt.
And often, that evidence is put before the court and the jury. It may not add up to what you or I would regard as incontrovertible evidence, but its some material which is put before the court, and the jury is asked to draw an inference from that material to say – this is what we know, therefore this is what must have been agreed. If one looks at that coldly one can see just how dangerous a concept that is, and how difficult it is, or can be, to deal with.
Unwitting participation in a crime
You may have somebody who appears to be at the forefront of a conspiracy or an investigation, but is in fact slightly lower down the line or far lower down the line and they’re being put forward as the fall guy to deal with that. And that can become quite a difficult unravelling situation for us as lawyers.
One of the things about conspiracy cases which can be really unfair, or seem really unfair is you find yourself right at the tail end of a prosecution is that you can sometimes be a delivery driver, a member of sales staff, a member of warehouse staff, even junior management – and be assumed to be a part of criminal plan because you may have assisted in it unwittingly just by being present at the scene, and doing what you regarded as your ordinary duties. Its really important to remember of course that in the legal definition of conspiracy that you do have to know, to have knowledge that you were involved in criminal activity.
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