The Modern Conspiracy – The Problem With Persons Unknown – By Fiona McAddy and Colin Witcher

Criminal Law

The Court of Appeal in the case of Griffiths [1969] 1 QB 589, made an apposite observation concerning a growing trend towards indicting defendants with a conspiracy as opposed substantive offences. The Court observed that accused persons were being jointly indicted for conspiracy in the absence of real evidence from which a jury could infer that their state of mind had proceeded beyond that required to commit a specific act to the state of mind required for a wider conspiracy with others.  The difficulty identified in 1969 continues to persist in determining the scope of a conspiracy, the persons that a jury is properly entitled to conclude are parties to that conspiracy, and in the factual difficulties which arises where they may be coexisting conspiracies framed within one count.

Conspiracy charges used to be reserved for the more complex and demanding cases; a useful prosecutorial tool where the crime was not yet complete, merely the agreement concluded.

The recent cases of Mehta [2012] EWCA Crim 2824 and Shillam [2013] EWCA 160, provide a clear and helpful illustration of the difficulties that can arise when indicting conspiracy. They are a must read for all defence Counsel and solicitors.

It is well established law that conspiracy requires the parties to have a common unlawful purpose or design, and to agree to take steps in furtherance of that agreement.  The purpose or design must be the same purpose; similar but separate purposes are insufficient for an overarching conspiracy. A considerable number of conspiracies will be indicted on the basis that a defendant, together with co-defendants and persons unknown, conspired to do an act.   On the face of it, a count alleging such a conspiracy should be relatively simple to prove, however difficulties often arise from the manner in which the evidence unfolds and the way in which the Crown choose to put their case. Other difficulties can arise from guilty instructions as to an involvement in a conspiracy which are not faithfully reflected in a written basis of plea.

There are two primary problems that arise with indicting persons unknown.  First, when a defendant is charged with a named co-defendant and persons unknown, but the evidence cannot properly support a conviction on the basis of a conspiracy solely between the defendant and persons unknown.  Second, where a potential conspirator is known and identified by the prosecution and a role is ascribed to them, however they are not named on the indictment as a conspirator.

The difficulty with charging two co-defendants and persons unknown becomes more obvious in a situation where a named co-defendant is acquitted, as was the case in Mehta.  There, the only named co-defendant, Kullar, was acquitted; thus the jury must have concluded that Mr Mehta conspired with persons unknown.  In Mehta, there were various potential “classes” of persons unknown; three are of particular relevance, namely the people who worked in Mehta’s businesses, and referred to as his “entourage”, the people that the Crown alleged were “upstream” of Mehta and responsible for matters such as forging documents, and a man named Murphy.

The Court of Appeal accepted that there was simply no evidence to support the contention that the people who worked for Mehta in his various businesses, some of which were legitimate, could be parties to the conspiracy.  No defined role was ascribed to them, and there was no real evidence from which their agreement to the wider conspiracy could be inferred.  Of more interest, was the assertion of the Crown that the jury were properly entitled to convict on the basis of a conspiracy between the defendant and unspecified persons who must have been involved in the creation of fraudulent documents.  In Mehta, the Court of Appeal properly rejected the suggestion that those who may have generated the fraudulent payslips could be properly presented to a jury as possible persons unknown, in a case where how the payslips were created, and who created them, was not explored at trial.

Despite the views expressed by the Court in relation to persons “upstream” of the conspiracy, it is both interesting and concerning to note that cases are still opened and presented to juries on the basis that there are other persons who must have been involved, although the Crown cannot specifically say what it is they have done, when they have done it, or what precise role they played.  For example, in the case of a conspiracy to acquire criminal property by means of fraudulent cheque, paypal and bank transfers, the Crown continue to open and present a case to the jury on the basis that there must have been other people involved facilitating the fraudulent transfers and creating the fraudulent cheques.  It is arguable that following the observations in Mehta, it is insufficient for the Crown to be simply say to a jury that they are unable to point to the source of the transfers or the creator of the cheques, therefore there must have been other people involved, albeit that nothing definitive can be said about their involvement.  If the Crown are properly entitled to open and present a case in this fashion, then a separate issue arises concerning whether these in fact represent a common unlawful purpose or design.  Taking the example of a conspiracy to acquire criminal property by fraudulent cheque, paypal and bank transfers, and the inclusion of persons upstream of the conspiracy, on the face of it, there are a number of potential conspiracies.  There is, of course, the ability to convict on the basis of a conspiracy between all named co-defendants.  There is also a potentially separate conspiracy between each co-defendant and persons unknown.  For example, between D1 and persons unknown, the reality may be that there is not a conspiracy to acquire criminal property, but simply a conspiracy to steal, and that at a later stage, that person unknown enters into another agreement with D2 and D3 to acquire criminal property.  The inclusion of persons unknown without ascribing roles potentially throws open the ambit of possible coexisting conspiracies, and even with careful directions, there is the potential for a jury to convict on a basis that is not supported by the evidence.

The Court of Appeal in Shillam, on the face of it, faithfully applied Mehta.  But the approach taken there appears both more flexible and realistic.  Shillam was jointly indicted as conspiring with two others and persons unknown to supply Class A drugs to another.  In response to a question from a juror as to whether any of the named co-defendants could conspire with a person unknown, the learned trial judge directed that there could be an agreement between any defendant and a person unknown.  The Court of Appeal accepted that this created the possibility that all three defendants could be convicted of separate conspiracies with different people, and emphasized the need for a common purpose.

The view of the Court of Appeal in Mehta, was different in relation the final potential class of persons unknown, the man identified as Murphy.  Murphy had entered guilty pleas to four substantive counts of fraud; these related to 4 transactions which Mehta was said to have been involved in.  There was no evidence that Murphy’s involvement went beyond those four transactions, or that he had any involvement in the wider conspiracy alleged against Mehta.  Despite discussions concerning the matter, no separate count was added to the indictment alleging a conspiracy between Mehta and Murphy alone.  However, the Crown’s case from the outset was that Murphy had been a co-conspirator.  The Court concluded that the jury were entitled to convict on the basis of a conspiracy with Murphy and that this did not represent a different conspiracy to that indicted.  They further rejected the assertion that it was not open to the jury to convict of a conspiracy that was smaller in scope than that set out in the indictment.

The Court’s approach to dealing with the issue of Murphy raises an interesting question.  Returning to the earlier example of a conspiracy to acquire criminal property, how does the Court of Appeal’s reasoning apply in a case where the prosecution witnesses, having admitted dishonesty in the witness box, on the evidence, are in the position of potential conspirators?  The simple solution on the face of it, is for the Crown to state that they do not put the prosecution witnesses forward as potential conspirators.  But that, arguably does not resolve the fact that, on the evidence, the prosecution witnesses have admitted conspiring with each other, and potentially, with the defendants, and we all hold firm to our belief in the fact that juries return verdicts according to the evidence,   If the Crown’s case is that they do not say that the prosecution witnesses are participants in the conspiracy on the indictment, but the prosecution witnesses admit dishonesty that goes to the heart of the conspiracy that the defendants are being tried for, are the jury entitled to convict D1 on the basis that he conspired with a person identifiable on the evidence, namely Prosecution Witness 1? On the strength of the Crown’s assertion, the answer would seem to be, “no”.  But on the reasoning of the Court of Appeal in Mehta, it would be properly open to a jury to convict on that basis.

Although the law is settled in this area, the application of the relevant authorities on a case by case basis will often raise questions as to the basis on which the Crown put their case, and the basis on which, regardless of any assertions, a jury might convict.

Close scrutiny of the indictment, and evidence at an early stage is vital, and both the Crown and defence should keep under review the need for additional counts to be added to the indictment to reflect the reality of the evidence as it unfolds at trial.

One should not simply be alive to this issue at trial; the issue as to the existence and scope of a conspiracy should be explored fully if there is to be a guilty plea. Take an example where a defendant is indicted in a conspiracy with a named co-defendant to supply Class A drugs. By pleading guilty, unless explicitly raised, that guilty defendant accepts that the Crown has properly named his co-conspirator and thus that plea and admission could be adduced at the co-defendant’s trial (subject to any section 78 argument). What however, is the position if the defendant instructs, “yes, I am guilty, but I am refusing to instruct you as to whether or not my co-conspirator was my co-defendant”?. The three suggested answers are: firstly he pleads guilty on a basis that states “The D makes no admission as to the involvement of his co-defendant, but accepts that he was involved in a conspiracy”. Secondly, he pleads guilty to an amended indictment which reads “together with [co-defendant] and persons unknown, and the basis of plea is as before. Thirdly, he simply pleads guilty to a substantive count of supply which cause no prejudiced at sentence to the Crown, so long as the entirety of the drugs have been seized and the Judge need not therefore sentence on the Khan basis.

Another issue to consider in respect of basis of pleas is co-existing conspiracies.  Defendants are always keen to particularise in basis of pleas the dates that they became involved in a conspiracy. However the defence should look at the reality of the evidence and ask, “is there in fact more than one conspiracy, even though there is only one conspiracy count”?  Take an example of a nationwide supply of Class A drugs, where three defendants (A, B and C) share a regional supplier (Mr X), who is close to the source of the importation. Three further defendants also share the same supplier (1, 2, and 3).  All seven are indicted on one count of a conspiracy to supply Class A drugs, ostensibly on the basis that they are found at Mr X’s premises making their collections, Mr X having been subject to surveillance. The factual reality (admittedly easy to digest on these brief facts) is that defendants A, B, and C, together with Mr X share a common aim/purpose. But that common/aim purpose is not necessarily shared with defendants 1, 2, and 3. You need to examine carefully the evidence in large scale conspiracy cases and ask whether or not you can establish or exclude an evidential link between co-conspirators and your defendant. In doing so it may be possible to establish within one conspiracy count, two or more conspiracies. That is important at sentence, because the drugs handled by defendants 1, 2, and 3, are not therefore relevant for defendants A, B, and C and it may cause a significant difference at sentence. This issue was recently argued by the authors of this article before the Court of Appeal.

22nd August 2016

Barristers who contributed to this article

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Colin Witcher

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