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FAQs/Common Questions

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Conspiracy

A conspiracy can either be a statutory conspiracy, as defined in Section 1 of the Criminal Law Act 1977 or one that is recognised by judicial precedents, known as common law. A charge of conspiracy will normally consist of the conspiracy itself and the substantive element of an alleged offence(s).

Just as it is a criminal offence to steal, murder, supply drugs, so it is also a criminal offence for two or more persons to agree with one another to commit those offences. An agreement to commit an offence is called a conspiracy. Before a person can be convicted of an offence of conspiracy, a jury have to be sure of the following:

  1. There was in fact an agreement between two or more persons to commit (the crime in question); and
  2. The defendant whose case is being considered was a party to that agreement in the sense that:
    1. He agreed with one or more of the other persons referred to in the charge that the crime should be committed; and
    2. At the time of agreeing to this, he intended that he/they should carry it out.

No agreement/conspiracy is going to be written on paper, so it would not be normal for there to be direct evidence of a criminal conspiracy. When deciding whether there was a criminal conspiracy, the court will look at all the evidence as to what could occur during the relevant period, including the behaviour of each of the defendants/alleged conspirators.

When criminal conspiracies are formed, the court will consider the fact that one or more of the conspirators may be more deeply involved in, and had a greater knowledge of the overall plan, than the others. Also a person may agree to join the conspiracy after it has been formed, or he may drop out of it before the crime has been fully carried out. If the court are sure that in the case of any defendant that he did at some stage agree that the crime should be committed and that at that time intended it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness, or precisely when he became involved, he will be guilty of an offence.

Circumstantial Evidence

Sometimes a court will be asked to find some fact of proof by direct evidence. On the other hand, there may well not be direct evidence of a crime and the prosecution will attempt to rely upon circumstantial evidence to prove guilt. Basically the prosecution will be relying upon evidence of various circumstances relating to the crime and the defendant, which they say when taken together will lead to the sure conclusion that it was the defendant who committed the offence.

Circumstantial evidence can be powerful evidence but it is important that it be examined with care and consideration to see that the evidence upon which the prosecution relies on in proof of his case is reliable and whether it does prove guilt. The court will be warned that before convicting on circumstantial evidence, it should consider whether it reveals any other circumstances which will or may be of sufficient reliability and strength to weaken or destroy the prosecution case.

The court always has to be warned that it has to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Guessing is not good enough and there needs to be good evidence to support an inference.

Delay/Prejudice/Malice (Abuse of Process)


A criminal court has a general inherent power to stay proceedings in order to protect its process from abuse and to secure fair treatment from those accused of crime. The power to stop prosecution arises only when it is an abuse of process of the court.

It may be an abuse of process if either:

a)The prosecution have manipulated or misused the process of the court so as to deprive the defendant of the protection provided by law, or to take unfair advantage of a technicality, or

b)On the balance of probabilities the defendant has been, or will be, prejudiced in the preparation and conduct of his defence by delay on the part of the prosecution which is unjustifiable.

The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and to the prosecution. What is fair and wrong will be for the court to determine on the individual facts of each case. The jurisdiction to stay can be exercised in many different circumstances.

Nevertheless, two main strands can be detected in various case law:

a)Cases where the court concludes that the defendant cannot receive a fair trial:

b)Cases where the court concludes that it would be unfair for the defendant to be tried.

In essence, the test to be applied for fairness is that the courts do have an inescapable duty to secure fair treatment for those who come aboard before them. Every court has undoubtedly a right in its discretion to decline to hear proceedings on the grounds that they are oppressive or an abuse of process of the court. One has to carefully look at the issue of prejudice, delay, prosecution motivated by malice, improper pursuit of procedures, and destruction of evidence.

Hearsay Evidence

A statement not made in court during trial is considered as hearsay evidence. It alone could normally be admitted under various circumstances, highlighted in the Criminal Justice Act 2003.

Even if evidence is capable of being admitted under the Criminal Justice Act 2003 (a person has died, a person is in fear, a person has disappeared, a person is abroad or cannot be found and documentation conducted in the course of a business) it may still not be admitted as there is discretion given to the court. The court will look at the nature of the evidence and what effect its admission will have on a defendant who cannot cross-examine a witness as to the truth of its contents.

Bad Character

This is evidence of misconduct which has nothing to do with the alleged facts of the offence for which a defendant has been charged. This can be previous convictions, previous offences for which a defendant has been arrested but not charged, previous evidence of conduct where a defendant has not even been charged, it could be material which is important explanatory evidence for a charge or essential to the background to an offence.

Even if bad character evidence is deemed to be admissible under various gateways under the Criminal Justice Act 2003 the court still has the discretion to exclude that evidence if it deems it to be unfair to the defendant and would not result in him having a fair trial.

It is essential to note that bad character does not necessarily involve previous convictions and the Criminal Justice Act 2003 allows bad character of prosecution witnesses to be admitted under certain circumstances as well as other co-defendants or other persons not charged with any offence.

Joint Enterprise

The general principle is that where two or more persons embark on a joint enterprise, each is liable for what they have done in pursuit of that joint enterprise, unless one of the parties goes beyond the scope of what was agreed. It is therefore necessary to decide what was agreed, tacitly or expressly, by the defendant whose case the magistrates or jury are considering as being within the scope of that enterprise.

This commonly is very important where one looks at conspiracy and in particular when one looks at the issue of murder. Where two or more persons join in an attack on another in circumstances which they all share the intention at least to inflict serious bodily harm on the victim, and as a result of the attack the victim dies, they are jointly liable for murder. The law is that where two or more persons embark on a joint enterprise, each of them may play a different part, but if they are linked together as part of a joint plan or common purpose, each is liable for their actions pursuant of that joint enterprise.

However the well known principle is that where someone goes over and above the joint enterprise, for example the plan was not to cause serious harm on a victim and another member involved in that unlawful act either goes over and above what was contemplated, such as intending to cause serious harm without the knowledge of one of the persons or for example produces a knife where there was no weapon envisaged, then that person who was not part of that overall contemplation or was unaware of that weapon is not guilty of an offence.

The above general guide on the criminal law is basic and one hopes user friendly. If you require any further information please contact our offices and we will be happy to discuss any aspect of the information mentioned above.