Legal Framework for the Offence of Conspiracy

CRIMINAL
LAW CAT

The offence of conspiracy

Introduction

A conspiracy is an alliance between two or more people with the motive
of committing an unlawful act or an act which though lawful in itself, becomes
unlawful once it is the object of the alliance[1].The
latter may occur when accomplishing a lawful end by unlawful means[2].
In the case of Bernard Kariuki Chege v Republic
[2016] eKLR, criminal conspiracy is identified as an example of an offence in
the category of inchoate crimes. Other crimes in the category include criminal
solicitation and an attempt to commit a crime. Inchoate crimes refer to the
offences which prepare for a further criminal act[3].
They are offences which have just begun and are not complete. An inchoate crime
must be connected to the substantive crime and conviction can take place even
if the substantive crime failed[4].The
offence of conspiracy and attempt are similar. The only differentiating factor
between conspiracy and attempt is that there is an agreement between two or
more people plus the substantial step[5]
in conspiracy while in attempt there is no agreement, just the substantive step.
The defendants must have a specific intent to commit the crime and this must be
proven beyond reasonable doubt[6].The
intent can be deduced from either the circumstances or the facts[7].
Conviction takes place when it is proven that the accused persons formed an
alliance with intent to commit the offence, began to execute the intention through
an overt act[8]
and were aware of the outcomes of their actions[9].
The legal framework on inchoate crimes allows the intervention of criminal
activities before they take place[10].

Key elements which have to be proven for conviction
of conspiracy

In criminal cases, mens rea and actus reus are important factors which
must be considered always. There are 3 key elements, which constitutes the mens
rea and actus reus, which should be proven for a group of people to be guilty
of committing the offence of conspiracy[11].
These key elements are:

1. There must be an agreement between two or
   more people to commit a crime ‘The offence of conspiracy cannot exist without
   an agreement or combination of two or more persons ’[12]The
   agreement can be deduced from the actions of the parties involved[13].
   In the case of United States v Delgadio the
   court mentions that an agreement can be proven from circumstantial evidence. An
    individual cannot be guilty of the
   offence of conspiracy if the others who he allegedly conspired with are
   acquitted.  This is seen in the case of Mulama -vs- Republic
   [1975] KLR 24.
2. Each member of the alliance must have an
   intention to participate in the agreement and also to commit the crime.

• An overt act must be performed to further the
  conspiracy. The overt act can be simply the preparation of the criminal
  activities[14].No
  one is punished for having the mere intent of committing a crime. There must be
  an expression for this intent. This can be done by just one member of the
  conspiracy. It doesn’t have to be all of them.

 In a
case of United States v Manton,
Justice Sutherland mentions that it is not necessary for all the members of the
alliance to know all the operations and participate in them. He further states
that a person may join an alliance to commit a crime during its progress and
still face charges for all the activities done.

 However, in the case of United States v Barret, it becomes clear that a person must be
fully aware of the motive of the alliance, accept to join it with this
knowledge in mind and be accepted by the other conspirators. If the intent of the
alliance is to achieve something lawful through unlawful means, it must be
shown that the accused intended to violate a law in order to achieve a legal deed.

It is possible for one to be convicted of conspiracy and also the
substantive offence on separate counts. In the case of Rebecca
Mwikali Nabutola & 2 others v Republic[15], the appellants had been convicted
of conspiracy to defraud and fraud while in Joseph
Gathara Kimani v Republic [2005] eKLR, 
Joseph had been convicted of conspiracy to defile and defilement of a
girl on separate counts. In the first case of Rebecca and two others, the judge
stated that there was no duplicity of the offence and he further argued that ‘
a charge is complete if it contains the specific charges that the accused is
charged and any other necessary information’[16].

 Agreement in conspiracy

An agreement is the harmony of opinions. The conspirators have the same
opinion of committing the crimes.

With the advancement in technology, agreements do not require
the conspirators to actually physically meet. Communication can be through text
messages, e-mails or phone calls. The agreement can include promises such as
money in order to motivate the conspirators to commit the offence.

Types of intentions

There are
two types of intentions in the offence of conspiracy. First, the intention to
participate in a conspiracy. Secondly, the common intent of the conspirators to
commit a crime. The conspirators must be fully aware of the consequences of
their alliance. One cannot be guilty of the offence of conspiracy if he wasn’t
aware of the alliance at all.

Defences for conspiracy

Abandonment

An accused person can use this defence when he completely and willing
left the alliance and was not part of any overt act done by the other members
of the alliance. The accused person must have informed the other members of his
desire to leave the agreement or informed the police of the alliance in order
for it to be clear that he left the conspiracy[17]

The accused  persons will still be
punished for activities done before abandonment.  

Impossibility

Impossibility is not a defence of conspiracy. In the case of Moses
Kathiari Rukunga v Republic [2018] eKLR, the court determined that the material fact in cases of
conspiracy is whether there was an agreement between two or more people with
the aim of committing an act which would result to an offence. Whether the
offence is possible to be carried out or not is immaterial[18].

The exceptions in the offence of conspiracy

Marriage

A person cannot be guilty of conspiracy if the other conspirator is his
or her spouse[19].
This can also be applied in polygamous marriages. In the case of In R v Yilkyes Finok Bala and
Others[20] , the court had to determine whether
the rule is applicable in polygamous marriages. The court interpreted the
statute in a manner that deemed polygamous marriages as legal and therefore they
upheld the rule of innocence if the conspirators are spouses. In the case of
Mawji v the Queen, [21]the lordships mentioned that the
rationale behind this rule is that at times the law recognises husband and wife
as one person. Archbold’s book[22] was also used as a secondary source of
law during the proceedings.  In the book,
the author states that apart from being considered as one person, husband and
wife are also considered to have one will. These views are obtained from the
biblical account of Genesis.

In the case of Kowbel v The Queen[23]
the Canadian Court had to determine whether this rule is still applicable. A dissenting
judge mentioned that husband and wife are viewed in both civil and criminal law
as independent legal entities.

The other conspirator should be human

In the case of McDonnell[24],
the defendant was charged with conspiracy. He was accused of conspiring with two
separate companies. The defendant was the director of the companies. The court
held that ‘a company and a director cannot be
convicted of conspiracy when the only human being who is said to have broken
the law or intended to do so is the director’[25]In
a case of conspiracy between a person and a company,  two or more people must be involved.

Age

There is no conspiracy if the other conspirator is below the age of
criminal responsibility.

Victim

A person can also not be guilty of the offence of conspiracy if he or
she is the ‘intended’ victim of the offence.

Rationale for criminalising conspiracy

A conspiracy to commit an offence poses a threat to the society. This is
because first, a conspiracy involves more than one person. Therefore, there are
higher chances for the conspirators to achieve their ultimate goal. The plan
formulated will also be efficient due to the participation of the different
conspirators. Working in a group is always better than working alone.

 Secondly, being in a group makes
the members more committed to achieving their main purpose. Conspiracy shows
just how serious each of the conspirator was, to commit a crime. All the
parties involved really wanted to succeed and this was their motivation to join
hands with others. The group members provide encouragement to continue with the
plan. In some case, a promise like money might be included.

Criminalising conspiracy prevents a harmful act before its occurrence.

Legal framework on conspiracy in Kenya

There are different types of conspiracies which are punishable by the
Kenyan law. The types of conspiracies have been listed in the penal code. These
include:

1. Conspiracy to defeat justice and interference
   with witnesses (Section 117 of penal code)
2. Conspiracy to defile (S157)
3. Conspiracy to murder (S224)
4. Conspiracy to defraud(S317)
5. Conspiracy to commit a felony (S393)
6. Conspiracy to commit a misdemeanour(S 394)
7. General conspiracies(S 395)

All these have different penalties.

According to the Criminal Procedure Code[26],
conspiracy to commit an offence may be found as a minor offence in a case where
the major cognate offence is unproven.

There are other primary sources of law on conspiracy like the Companies
Act, Kenya Defence Forces Act, Insolvency Act and Anti Corruption and economic
crimes Act just to list a few.

Conspiracy to defeat justice and interference
with witnesses.

This offence is found in the Penal Code under section 117.

Mens rea

The intention of the accused persons must be to obstruct, pervert or
prevent the execution of any legal process civil or criminal and in so doing,
defeat the course of justice.

Actus reus

It must be proven that there was an agreement or a conspiracy between
two or more people.

It should be shown that the accused persons have acted in a manner which
‘dissuades, hinders or prevents a witness or witnesses from appearing in court
and giving evidence’[27].
Persons who conspire to accuse any person falsely of any crime are also guilty.

A person who is guilty of this offence is liable to imprisonment for 5
years. In the case of Josphat Maina
Karuoro v Republic [2013] eKLR, Josphat was charged with the offence of
conspiracy to defeat justice and interference with witnesses. He took away P3 forms from James Chuchu Muchina, Jackson Mwaniki Njeru,
Lukas Githuka Kagio, Anthony Fundi Njue and Emily Wawira Njagi by falsely
pretending that he would assist them to be compensated.

Conspiracy to defile.

 One is guilty of the offence if he
induces any girl, boy, woman or man by means of false pretence or other
fraudulent means to permit any person to have any unlawful carnal knowledge with
her or sexual connexion with him and is liable to imprisonment for 3 years.

Conspiracy to murder

A person is guilty of the offence if he or she is part of an alliance
with others to a kill another person. It is immaterial whether the person who
is to be murdered is found in Kenya or not. In the case of Owalu and another v R[28],
the accused were found guilty of murder because an agreement to commit the
murder was proven.

Conspiracy to defraud

A person is guilty of this offence if,

• There is
  an alliance with another person or other people
• The
  accused affect the market price of any publicly sold item, defraud and extort other
  people’s property.

Conspiracy to commit a felony and
misdemeanour

The two offences are found in sections 393 and 394 of Penal Code
respectively. A person is guilty of this crime whether he committed it in Kenya
or not. If committed in another country, the offence must be recognised as
illegal in that country.

Legal framework on conspiracy in other parts
of the world

United States

The country adapted law on conspiracy from common law. There are
different statutes which have been enacted on conspiracy. Conspiracy against
United States or to defraud United States is found in 18 USC 372.The Model
Penal Code is also a source of law on conspiracy used in the country. The trial
can be held in any location where an overt act is committed. The conspirators
can also be tried in one trial. The punishment for conspiracy crimes are an
imprisonment or payment of a fine.

Germany

This is a civil law state. There are laws on conspiracy in the German
Criminal Cde section 30(2). The terms for withdrawal from conspiracy include: giving
up attempt to induce another person to commit the crime, abandoning the plan
and preventing the crime.

Issues raised by scholars on the offence of
conspiracy

In a research paper[29],
Alexander and Ferzan argue that at times the role of a member in a conspiracy
is too minimal for them to be charged of the offence. They give an illustration
of two people, Frankie and her accomplice who plan to kill Johnny. Frankie
carries a gun and waits outside the house of Johnny. Frankie fears that a third
party may see her with the gun or maybe even Johnny and decides to leave the
premises. In case a third party might have seen her, the scholars argue, they
would have feared for their lives.  The
two scholars argue that even if this is the case, Frankie and her accomplice
are not culpable for the offence of conspiracy to commit murder. This view is
however not correct because, the act of Frankie going to wait for Johnny in
order to kill him is an overt act or manifestation of the intention she and her
accomplice had.

A scholar, Christopher Grout[30]argues
that the rule exempting spouses from being charged of the offence of conspiracy
is no longer applicable. He states that the rationale behind this rule of
husband and wife being considered as one is no longer applicable and therefore
the rule itself is not justified. He further claims that if the rule remains,
there would be criticisms for situations of unmarried persons or rather persons
who stay together without an official marriage or civil partnership.

In his paper, Steven Morrison, a scholar, argues that the laws on
offence of conspiracy pose a threat to the freedom of speech. Factors like
knowledge and close interaction of the conspirators can help in proving that
they can form a conspiracy against the law. Steven argues that by adding an
evidence of ‘bad’[31]
speech, the prosecution can create a picture of offence of conspiracy in a case
where it doesn’t exist.

The scholar, Laurent Sacharoff[32]
likens a conspiracy to a contract. He mentions that the factor of ‘agreement’
is found in both. In both a conspiracy and a contract, there is meeting of the
minds and this is important in order to achieve the aim of the agreement. At
times conspiracies include promises, just like in a case of a contracy and this
is what can make one to be committed. Laurent identifies challenges faced when
prosecuting conspiracy offences and they include: inaccuracy in determining the
relationship between the alleged conspirators and incapability to determine
whether or not the conspirators are truly capable of committing a crime.

Challenges faced during conviction of
conspiracy

The scholars, Ferzan and Alexander, argue that the desire and intention
are two distinct factors. They further identify that the prosecution may have a
hard time determining whether an accused person simply had a desire to execute
a crime or intended to do it. In the case of Frankie (mentioned in previous
subtopic), the scholars conclude that it will be hard for the prosecution to
determine whether Frankie actually had the intention to shoot Johnny with the
gun she had. They further state that it would thus be a challenge to simply
criminalise the intention of conspirators. A desire is a strong feeling of
wanting something [33]

It is difficult for the prosecution to ascertain that the accused would
really commit the crime and it is not just ‘mere thought or speech’[34]
. It is possible for a group of people to talk about doing something and even
prepare for it but in the end, they are not capable of completing their initial
plans. The speech of the members of the group may also simply be a desire to impress.

There are situations where a person can be framed for a crime[35].
It can be difficult for the court to identify these instances and as a result,
a person can be wrongly convicted. Circumstantial evidence or just fact may be
misleading.

Due to the secretive nature of conspiracies,  the prosecution might have a hard time during investigations. It will be difficult to gather the information concerning the activities of the conspirators.

The prosecution have a hard time proving the agreement between the
parties concerned due to the secretive nature of conspiracies.

Disadvantages of the laws on offence of
conspiracy

The offence of conspiracy is an example of an inchoate offence. The substantive
crime has not been committed or maybe failed. 
The court depends on circumstances and facts when deciding cases of this
scope. There are cases where the court uses facts like work relationships or
friendship to conclude a conspiracy between a group or people. This may not be
very accurate.

Punishment of conspiracy

In many jurisdictions, the punishment for attempted crimes and
conspiracy are less severe than the crimes where one successfully committed.
The punishment for the offence of conspiracy is effective because the harmful
act is stopped before it actually happens. There are different penalties for
different types of conspiracies. The punishment depends on the statutory
provisions. In Kenya, the Penal Code states the penalties. They are as follows:

1. Conspiracy 
   to defeat justice and interference with witnesses  – imprisonment of 5 years
2. Conspiracy to defile  – imprisonment of 3 years
3. Conspiracy to murder – imprisonment of 14
   years
4. Conspiracy to defraud – imprisonment of 3
   years
5. Conspiracy to commit felony – imprisonment of
   7 years if there is no other punishment.  If the accused commit a felony which has a
   lesser punishment then 7 years, then that will be the punishment.

In a case where the accused persons are
charged with conspiracy and also the substantive offence, the court is required
to give separate sentences for each offence. The court should also clarify
whether the sentences will be served consecutively or concurrently. If it is
concurrently,  the convicted persons
serve the longer sentence while if it is consecutively, the convicted persons
serve the sum of the sentences.

Conclusion and recommendations

The offence of conspiracy is punishable by the law in many
jurisdictions. The main actus reus for this offence is an agreement between two
or more people while its mens rea is the intention to commit an offence which
is punishable by the law.There are two types of intention in this offence.
First, the intention to form or join a conspiracy and secondly,  the common intention of the conspirators to
commit a crime. The laws on this offence are meant to prevent a criminal act
before it occurs.

Laws on others types of conspiracies should be added in Kenya. For
example the conspiracy for terrorism.

Bibliography

• Anna Sergi, ‘Organised crime in English criminal law: Lessons from the United States on conspiracy and criminal enterprise’ [2015]2 JMLC <https://www.researchgate.net/publication/273949882> accessed 11 December 2018
• Alexander Larry and Ferzan Kimberley,’ Risk and inchoate crimes: Retribution or Prevention’ University of San Diego Legal Studies Research Paper Series No. 11-604 <https://www.researchgate.net/publication/228185393_Risk_and_Inchoate_Crimes_Retribution_or_Prevention > accessed 10^th December 2018
• Courtney Klein, ‘Guilty Act, Guilty Mind: establishing actus reus and mens rea of in situations of conspiracy and accessory’ (2012) City University of Newyork- John Jay College of Criminal Justice Research Paper <https://www.researchgate.net/publication/261026128_Guilty_Act_Guilty_Mind_establishing_Actus_Reus_and_Mens_Rea_in_situations_of_conspiracy_and_accessory> accessed December 10^th 2018
• Dennis Baker, ‘Textbook of Criminal Justice’(3^rded Sweet & Maxwell, 2012)
• John Frederick Archbold, ‘Archibold: Writing on Criminal Pleadings, Evidence and Practice’ (33rd edition, 1999)
• Grout Christopher, ‘Marriage, Polygamy and the criminal law of conspiracy ‘(2018) 20 ECC LJ     <https://www.cambridge.org/core/journals/ecclesiastical-law-journal/article/marriage-polygamy-and-the-criminal-law-of-conspiracy/0371C8CA1AAF989BD2FC15285DC3032C> accessed 12th December 2018
• Ira Robbins, ‘Double Inchoate Crimes’ [1989]1 Legis
• John Frederick Archbold, ‘Archibold: Writing on Criminal Pleadings, Evidence and Practice’ (3rd edition, 1999) cited in Christopher Wafula Makokha v Republic [2014] eKLR
• Laurent Sacharoff, ‘Conspiracy as a contract’(2016)Research Paper University of   Arkansas School of Law
• Miles Jackson, ‘A Conspiracy to Commit Genocide: Anti-Fertility Research in Apartheid’s Chemical and Biological Weapons Programme’ [2015]13 JICJ <https://doi.org/10.1093/jicj/mqv060> accessed 10 December 2018
• Steven Morrison,  ‘Conspiracy laws threat to free speech’(2013)Research Paper University of Dakota School of Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1955159> accessed 10^th December 2018
• The Editors of Encyclopaedia Britannica, ‘Conspiracy’ (April 12^th 2018)        <https://www.britannica.com/topic/conspiracy> accessed 10 December 2018

[1] Black’s Law Dictionary (2^nd edition).

[2]The Editors of Encyclopaedia Britannica, ‘Conspiracy’(April
12^th 2018)<https://www.britannica.com/topic/conspiracy> accessed 10 December 2018

[3] Oxford Dictionary (7^th edition, OUP 2013).

[4]Bernard Kariuki Chege
v Republic[2016] eKLR

[5]Bernard Kariuki Chege
v Republic[2016] eKLR

[6]Moses Kabue Karuoya
v Republic [2016] eKLR

[7]Moses Kathiari
Rukunga v Republic [2018] eKLR

[8]Bernard Kariuki Chege
v Republic[2016] eKLR

[9]Anna
Sergi, ‘Organised
crime in English criminal law: Lessons from the United States on conspiracy and
criminal enterprise’ [2015]2 JMLC <https://www.researchgate.net/publication/273949882> accessed 11
December 2018

[10]Ira Robbins, ‘ Double Inchoate Crimes’[1989]1 Legis

[11]Anna
Sergi, ‘Organised
crime in English criminal law: Lessons from the United States on conspiracy and
criminal enterprise’ [2015]2 JMLC <https://www.researchgate.net/publication/273949882> accessed 11 December
2018

[12]John Frederick Archbold, ‘ Archibold: Writing on Criminal Pleadings, Evidence and Practice’( 3^rd
edition, 1999) cited in  Christopher Wafula Makokha v Republic [2014] eKLR

[13]Miles Jackson , ‘A Conspiracy to Commit Genocide:
Anti-Fertility Research in Apartheid’s Chemical and Biological Weapons Programme’[2015]13
JICJ <https://doi.org/10.1093/jicj/mqv060> accessed 10 December 2018

[14]Courtney Klein, ‘Guilty Act, Guilty Mind : establishing
actus reus and mens rea of in situations of conspiracy and accessory’(2012)City
University of Newyork- John Jay College of Criminal Justice Research Paper <https://www.researchgate.net/publication/261026128_Guilty_Act_Guilty_Mind_establishing_Actus_Reus_and_Mens_Rea_in_situations_of_conspiracy_and_accessory>accessed
December 10^th 2018

[15]Rebecca
Mwikali Nabutola & 2 others v Republic
[2016] eKLR

[16]Criminal Procedure Code s 134.

[17] Dennis Baker, ‘Textbook of Criminal Justice’(3^rdedSweet
& Maxwell, 2012)

[18]Moses Kathiari
Rukunga v Republic [2018] eKLR

[19]Criminal Law Act 1977 S 2(Law of England and Wales)

[20]In R v Yilkyes Finok Bala and Others [2016]
EWCA Crim 560

[21]Mawji v the Queen [1957AC 126

[22]John Frederick Archbold, ‘ Archibold: Writing on Criminal
Pleadings, Evidence and Practice’( 33^rd edition, 1999)

[23]Kowbel
v The Queen[1958]SCR
498

[24]Regina v McDonnell [1966] 1 QB 233

[25]Regina v McDonnell [1966] 1 QB 233

[26] Criminal Procedure Code 1997 S 179

[27]Penal Code 1930 s 117

[28]Owalu and another v R
[1942] 9 EACA 87

[29]Alexander Larry and Ferzan Kimberley ,’ Risk  and 
inchoate crimes: Retribution or Prevention’ University of San Diego
Legal Studies Research Paper Series No. 11-604
<https://www.researchgate.net/publication/228185393_Risk_and_Inchoate_Crimes_Retribution_or_Prevention
> accessed 10^th December 2018

[30] Grout Christopher, ‘Marriage, Polygamy and the criminal
law of conspiracy ‘(2018) 20 ECC
LJ<https://www.cambridge.org/core/journals/ecclesiastical-law-journal/article/marriage-polygamy-and-the-criminal-law-of-conspiracy/0371C8CA1AAF989BD2FC15285DC3032C>
accessed 12th December 2018

[31] Steven Morrison, 
‘Conspiracy laws threat to free speech’(2013)Research Paper University
of Dakota School of Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1955159> accessed 10^th December 2018

[32]Laurent Sacharoff, ‘Conspiracy as a
contract’(2016)Research Paper University of Arkansas School of Law

[33] Cambridge Dictionary (CUP 2018)

[34]Laurent Sacharoff, ‘Conspiracy as a contract’(2016)Research
Paper University of Arkansas School of Law

[35]Laurent Sacharoff, ‘Conspiracy as a
contract’(2016)Research Paper University of Arkansas School of Law