CRIMINAL JUSTICE?

CONSPIRACY AND INTENT

by
MICHAEL HILL, QC
Chairman, Criminal Bar Association
(England and Wales)

I INTRODUCTION
TRADITIONALLY, the beginning of a new year is a time for
thought about what the future promises—or threatens. Lawyers
are no more immune to this kind of fortune-telling than any
other group. The invitation to give these two lectures has
stimulated me both to an. examination of what we have and
to a sometimes sombre view of what we may find ourselves
getting.
All developed societies, in what we call the free world, have
been going through a long period of increasing crime rates and
increasing quality and sophistication in criminal endeavour.
Twenty-five years ago, when I started practice, although we
had in England some elements of organised, and rather more
elements of professional crime, crime tended to be local in
origin and operation and seldom posed great intellectual
demands on those who had to understand or to explain it.
I daresay that the same was true elsewhere in the world.
To-day, the picture has changed beyond all recognition. There
can be no doubt about the organisation and professionalism of
much crime, not necessarily through something akin to the
'Mafia,' but by leading home-grown criminals who know and
relate to each other. As modern technology has improved, so
have the opportunities for intelligent criminals. Intelligent
criminals are not a figment of the imagination: far more a
figment is the burglar with sallow face, black mask, striped
jumper and swag bag over his shoulder. Indeed, one of the
more disturbing features of modern crime is the increasing
involvement of the professional and managerial middle classes.
 Law Lectures for Practitioners

The change in the nature and sphere of operation of the

national criminal is not the only disturbing development.
Grime has become internationalised. The last fifteen years,
especially, have seen an incredible growth in international
terrorism, drug trafficking and fraud. International crime is
the most difficult to detect, to investigate and to prove. More-
over, I believe that there is sufficient anecdotal evidence to
suggest that we are seeing interaction between different types
of international criminal operations—as, for example, terrorists
who, in need of funds, combine with international drug
traffickers or fraudsmen in order to raise the required finance,
These developments pose national law enforcement agencies,
prosecution services and criminal justice systems with unpre-
cedented problems. Different countries have reacted in different
ways. My anxiety is that my country, for so long the keeper of
the chalice of the rule of law and the protection of the individual
against all-comers, has begun to move towards the fabric of a
repressive state. The fact that we are nowhere near that kind
of state can be said, in too many instances, to be in despite of
our laws rather than because of them. Fortunately, we are still
governed by people who maintain the fundamental principles
of our unwritten constitution, the most important of which is
that both Government and people must live by a rule of law
which is calculated, in the final analysis, to protect the individual
against the abuse of power and against false accusation.
Nonetheless, the pattern is there.
My purpose in these two lectures is to examine how certain
changes in the substantive and procedural laws of England
have occurred in recent years and to examine their application
in present circumstances. The subjects of the first lecture, which
deals with the substantive law, are conspiracy and intent. I
want to look at those topics against the background of the
developments in crime which I have already sketched and also
against two points which I want to make now:

(i) in a political context, there can hardly be a more

emotive charge than that of conspiracy; it is seen, I
believe, rightly as the 'legal' weapon most often used by
 Conspiracy and Intent

repressive regimes to neuter and to villify and, if desired,

to punish their opponents; It happens also to be one of the
most useful and effective charges upon which to found a
prosecution of organised and/or professional criminals;
(2) it is fundamental to any proper system of law that no
.man should be convicted of and punished for crime unless
his mind can be proved to have gone with his act to the
extent demanded by the particular crime alleged against
him; this principle has often been seen by governments as
preventing their 'control' of the populations which they
govern and many have seen the attempts to legislate in
such a way as to make it a crime to do a certain thing, even
if the mind did not go with the act; the legislatures and the
judiciaries in truly free countries have generally succeeded
in resisting such attempts; in countries which have moved
from freedom to repression, the legislatures and the
judiciaries (if they have been allowed to continue to exist)
have either not made the effort or have failed.

II CONSPIRACY
The number of conspiracy cases which came before the criminal
courts when I started at the Bar were relatively few. That may
have been due in part to the nature of crime in those days. The
main reason, however, was that the judges inveighed against
conspiracy counts whenever they had the opportunity—and
prosecutors took heed. If, for example, a gang of robbers
carried out (or attempted) a series of planned robberies, it was
almost unthinkable that they would be indicted for conspiracy
to rob: they would be charged with the individual robberies.
If the prosecution had the temerity to add a count for con-
spiracy, they would be hard pushed to avoid being forced to
drop it at some stage. The guiding principle was that a
conspiracy should be indicted only if the fact of the conspiracy
could be shown to add a degree of criminality to that demons-
trated by the Individual (joint enterprise) offences. To-day,
conspiracy is the favoured count in cases where a number
of people have combined together to enter upon a criminal
 Law Lectures for Practitioners
4

enterprise, even when that enterprise has been brought to

fruition.
Why lias this change occurred ? It could be 'argued that the
reason is that the old judicial attitude to conspiracy has been
seen as unsound. There may be something in that, but I think
that the overwhelming reason is that modern crime simply
cannot be prosecuted effectively before any tribunal of fact
without the frequent use of conspiracy as the only charge, or as
one of the charges. I can illustrate this I think, by reference to a
'carbon paper' fraud which I prosecuted in, the mid-1970s,
The mechanics of such a fraud were (are) frighteningly simple:

The fraudsmen contacted the busy stationery buyer of a large

company and persuaded him to place an order for a quantity
of a well-known, brand of carbon paper at 'knock-down'
prices; delivery is made promptly and the company is
billed: as soon as it has paid (sometimes before), a similar
quantity, seldom of the same quality, is delivered and
billed and the same thing Is repeated at, regular intervals;
if the buyer realises what is going on (before his stationery
store explodes) he will be told, very forcibly, that the
original order he placed was for regular deliveries and
that, after all, he did receive a present for placing such a
large and valuable order in the first place (as would he
the fact).

In the very nature of such a fraud, it is likely to succeed more

often than not and, even when it is discovered, is often not
reported to the police because large companies find it embarrass-
ing to admit that they have been 'caught' in such a way. In
my case, we had about eighty losers, each one having been a
victim on an average of about four occasions. The idea of
setting out to prove about 320 individual transactions did not
attract one—and there was always the risk that, if we did
charge sample substantive counts, the evidence on one or more
of them might fall short of the necessary standard in respect of
one or more of the defendants, so that guilty people might be
acquitted, We prosecuted for conspiracy. In the end, we used
 Conspiracy and Intent

twelve individual incidents to prove the involvement of each of

the defendants in at least two transactions. Of course, we ended
up adducing evidence of a fraud about one-tenth of the value
of that which could have been proved. There have been many
arguments about this problem and they continue to this day.
My point, however, is that that case was not prosecutable,
before any tribunal of fact, in our adversarial system with the
burden and standard of proof which we rightly place upon the
prosecution and with our evidential rules—unless we prosecuted
for conspiracy.
That case was prosecuted as a common law conspiracy to
defraud. That could not happen to-day—because of the
Criminal Law Act, 1977. Before the Act, apart from, conspira-
cies which were covered by specific statutory provisions, all
conspiracies were common law offences. Broadly speaking,
there were four kinds of common law conspiracy: to commit
criminal offences; to defraud; to commit tortious acts in
combination; and to corrupt public morals or to outrage public
decency. The essential ingredient of conspiracy was the meeting
of the minds of at least two people who shared and purposed
to achieve together the same objective. The 1977 Act was
intended to change much of the old situation. Save for the
excepted conspiracies, a criminal conspiracy is now defined by
section i of the Act as:
' ... if a person agrees with any other person or persons
that a course of conduct shall be pursued which, if the
agreement is carried out in accordance with their inten-
tions, either
(a) will necessarily amount to or involve the commission
of any offence or offences by one or more of the parties to
the agreement, or
(b) would do so but for the existence of facts which render
the commission of the offence or of any of the offences
impossible he is guilty of conspiracy to commit the offence
or offences in question.'
The excepted conspiracies are specified in section 5 of the Act
as being: conspiracy to corrupt public morals or to outrage
 Law Lectures for Practitioners

public decency where the conduct contemplated would not

amount to or involve the commission of any offence if pursued
by one person alone without any agreement with any other
person: all at common law. Further, the Act does not apply to
conspiracy offences under other statutes.
The arguments about the meaning of these provisions and
about the ambits of the common law conspiracies were legion,
Many cases were argued on the basis that the indictment
charged a conspiracy under the Act, when it should have
charged a common law conspiracy—and vice versa. The Court
of Appeal tried to put a stop to this litigation when it heard the
appeal of R v Ayres. The Court said:

'We would . . . wish to remind those who persist in raising

questions on the form of the indictment, that the arguments
are of little practical importance. Even if an indictment is
incorrectly framed, it is defective only and does not render
the trial a nullity. The time of both courts of first instance
and the Court of Appeal is unnecessarily wasted in a purely
academic exercise.'

That ex cathedra pronouncement may turn out to have been

per incuriam because of the provisions of the Criminal Attempts
Act, 1981. Section 5 of that Act amended section i of the 1977
Act (I have set out, above, the amended section). The case of R
v Mock [1978] AC 979 established that, at common law, there is
no such thing as a conspiracy to do the impossible. It may
matter greatly, therefore, whether a conspiracy is a statutory
conspiracy, under section i, in which event there can be a
conspiracy to do the impossible, or is a conspiracy at common
law, in which event the decision in Nock will still apply. Ayres
is a crucially important case. It went to the House of Lords—
[1984] 2 WLR 257—and their Lordships finally resolved the
relationship between sections i and 5 of the 1977 Act. (Since
delivering this Lecture, I have been informed of and have come
across cases, the facts of which support the disquiet expressed
about the practical consequences if the decision in the House of
Lords is taken too literally and without regard to the significance
 Conspiracy and Intent

of the word 'necessarily' in section i (i) (a) of Act.) The problem

had been the Interface between the statutory conspiracy
(section i) and conspiracy to defraud. In Scott v Metropolitan
Police Commissioner [1974] 3 WLR 741, at page 749, Viscount
Dilhorne had said:

' . . . in my opinion it Is clearly the law that an agreement

by two or more by dishonesty to deprive a person of
something which is his or to which he is or would be or
might be entitled and an agreement by two or more by
dishonesty to injure some proprietary right of his, suffices
to constitute the offence of conspiracy to defraud.'

Put in that authoritative way (and it was the accepted view),

conspiracy to defraud was apt to cover conspiracies to commit a
very wide range of statutory criminal offences, such as robbery,
theft, obtaining by deception and many more. Hence the
argument about the relationship between sections i and 5. The
Lords were very firm: they held that the two offences of
'statutory' and 'common law' conspiracies were mutually
exclusive and they denounced the 'convenience' basis for
deciding which to charge. Lord Bridge delivered the leading
speech. He said that the purpose of section 5 was to prevent a
lacuna in the law which would have resulted if section i had
stood alone. This is, indeed, the historical position (see Law
Commission Working Paper, number 56). The conclusion was
that the common law conspiracy could be charged only where
the course of conduct agreed upon would not involve or
amount to a criminal offence if the agreement was carried out.
If it could involve or amount to a criminal offence then, even
if the case might fall within Viscount Dilhorne's dictum, it must
be charged as a section i conspiracy.
What Ayres did not resolve is what is meant by 'to defraud'
in English law. This is a problem which has defeated many
great minds and I am certainly not going to attempt any
definition. On the other hand, I think that it is possible to give
some reasonable indication of the ambit of the phrase. Clearly,
it contemplates, at least, somebody dishonestly causing another
 Law Lectures for Practitioners

pecuniary loss: equally clearly, the concept of defrauding is

much wider than that, I commend to the interested the follow-
ing cases in particular, each, of which has an Important bearing
on the meaning of 'to defraud':

Bassey (1931) 22 Cr AppR 160;

Board of Trade v Owen [1957] AC 6oas;
Welham [1961] AC 1033;
Scott (op.cit.);
Withers [1975] AC 842; and
Allsop (1977) 64 Cr AppR 29,

I suggest that these cases and the others referred to therein,

justify the following exposition of the ambit of 'to defraud':

(1) it is essentially an offence of dishonesty;

(2) it involves, in every case, the causing of prejudice to
another person;
(3) the prejudice need not arise from any deception
practised by the person doing the defrauding; and
(4) the prejudice contemplated may amount to: causing
economic or proprietary loss; imperillingeconomic interests;
causing a person to act contrary to a public duty.

I shall return to conspiracy to defraud at the end of the

section dealing with 'intent' and in the second lecture. I end
this section with a very quick look at the present law relating
to the proof of a conspiracy. There are very few conspiracies
that are documented, fully or at all: in the vast majority of
cases, the prosecution has to rely on the evidence of the actions
of the alleged conspirators (and on the interaction of those
events) in order to prove both the fact of the conspiracy and the
Identity of the conspirators. As part of that proof, they can rely
upon the 'acts and declarations of the conspirators in further-
ance of the conspiracy' and they can rely upon such evidence,
importantly, to prove the involvement of a defendant against
 Conspiracy and Intent 9

whom there may be no other direct evidence. Thus, against a

background that there is some proved association between A
and B and some proof of the former's criminal purpose, a
statement by A, intended to further that criminal purpose,
that B is his partner in it, is evidence that B was a conspirator
with A. This frequently produces great difficulties for all parties
and, particularly, for judge and jury. In the case of R v Walters,
Tovey and Others (1979) 69 Cr AppR 114, the Court of Appeal
had to consider the direction given by the trial judge:

'First of all, what the conspirators said or did, in furtherance

of the common object, or common agreement, is evidence
against all the rest of the conspirators. . . . You can consider
those (actions and declarations) against them all, either
before you have decided that there is an overall conspiracy
—and in order to decide that point—or after you have
decided that there is an overall conspiracy—if you do so
find—and when considering whether any particular
defendant is within that conspiracy, provided that you
do consider both of these aspects and you do find there is
a conspiracy in the end.'

The Court approved that direction, but goodness knows

what the jury made of it at the time. Having had to direct a
jury very recently on the same problem, I do not want to be
thought to be in any way critical of that learned judge. My
complaint is about the principle. I find the idea that the
involvement of one defendant in a conspiracy can be proved by
another alleged conspirator's statement, and by nothing else,
unpalatable.

Ill INTENT
The old law, that is, the law prior to 1967, was that a man was
presumed to intend the natural and probable consequence of
his actions. The presumption was rebuttable, but it applied to
all offences of which an essential ingredient was the intention to
achieve a specified result—such as wounding with intent to do
10 Law Lectures for Practitioners

grievous bodily harm. The presumption had a special place in

the law of murder, if Art 223 of Stephen's 'Digest' is to be read
literally, and it was as the consequence of a case of capital
murder that the presumption was perceived, at last, to produce
intolerably wrong results. In the case of Smith [1960] 3 WLR
546, the question before the House of Lords was:

' . . . what is the proper direction to be given to a jury in

regard to the necessary intent which has to be proved in
cases of murder and also in cases (of wounding or causing
grievous bodily harm with intent) ?'

The case arose out of the death of a police officer. The officer
had attempted to stop Smith, who was driving a car, in fact
containing stolen property: Smith had not stopped but had
accelerated, whereupon the officer had thrown himself on the
bonnet of Smith's car, from which he was eventually dislodged,
only to fall in front of another vehicle, which ran him over.
The officer died from his injuries. The crucial direction given
by the trial judge was:

'If you are satisfied that . . . (Smith) must have contem-

plated that grievous bodily harm was likely to result to
that officer . . . and that such harm did happen and the
officer died in consequence, then the accused is guilty of
capital murder. . . . On the other hand, if you are not
satisfied that he intended to inflict grievous bodily harm
upon that officer—in other words, if you think he could
not as a reasonable man have contemplated that grievous
bodily harm would result to the officer in consequence of
his actions—well, then, the verdict would be guilty of
manslaughter.'

Smith was convicted of capital murder and appealed successfully

to the Court of Appeal. That Court emphasised that the
presumption was rebuttable and that it did not have to be
drawn in every case. The House of Lords reversed that decision.
It was a strong House, consisting of Viscount Kilmuir, the Lord
 Conspiracy and Intent 11

Chancellor, an ex-Lord Chief Justice, Lord Goddard, the current

Lord Chief Justice, Lord Parker, the future Master of the Rolls,
Lord Denning and Lord Tucker. The Lord Chancellor delivered
the leading speech, with which all the rest expressly agreed.
Certain passages from his speech have a significance in view of
what was to happen thereafter. He said, at page 553:

' , . . (the Court of Criminal Appeal) were saying that it

was for the jury to decide whether, having regard to the
panic in which (Smith) said he was, (he) in fact at the
time contemplated anything at all. Unless the jury were
satisfied that he in fact had such contemplation, the
necessary intent . . . would not, in their view, have been
proved. This purely subjective approach implies this, that
if an accused said that he did not in fact think of the
consequences, and the jury considered that that might well
be true, he would be entitled to be acquitted of murder .. .
the proposition has only to be stated thus to make one
realise what a departure it is from that upon which the
courts have always acted. The jury must . . . in such a case
as the present, make up their minds on the evidence
whether the accused was unlawfully and voluntarily doing
something to someone. The unlawful and voluntary act
must clearly be aimed at someone in order to eliminate
cases of negligence or of careless or dangerous driving.
Once, however, the jury are satisfied as to that, it matters
not what the accused in fact contemplated as the probable
result or whether he ever contemplated at all, provided he
was in law responsible and accountable for his actions, that
is, was a man capable of forming an intent, not (legally)
insane . . . and not suffering from diminished respon-
sibility. On the assumption that he is so accountable for
his actions, the sole question is whether the unlawful and
voluntary act was of such a kind that grievous bodily harm,
was the natural and probable result. The only test available
for this is what the ordinary responsible man would, in all
the circumstances of the case, have contemplated as the
12 Law Lectures for Practitioners

natural and probable result. That, Indeed, has always been

the law. , . .'
Later in that speech, after reviewing some of the authorities,
he added (at page 557):
'Whether the presumption is one of law or of fact or ... of
common sense, matters not The real question is
whether the jury should have been told that it was rebut-
table. In truth . . . this is merely another way of applying
the test of the reasonable man. Provided that th^ presump-
tion is applied, once the accused's knowledge of the
circumstances and the nature of his acts has been ascer-
tained, the only thing that could rebut the presumption
would be proof of incapacity to form an intent, insanity
or diminished responsibility.'

The outcry was loud and prolonged. After all, their Lordships
were saying that the presumption applied whether or not the
consequences had been contemplated by a person who was
neither insane nor 'suffering' (sic) from diminished respon-
sibility. In 1967, Parliament legislated (in section 8 of the
Criminal Justice Act) that:

'A court or jury, in determining whether a person has

committed an offence,
(a) shall not be bound in law to Infer that he Intended
or foresaw a result of his actions by reason only of its being
a natural and probable result of those actions; but
(b) shall decide whether he did intend or foresee that
result by reference to all the evidence drawing such
inferences from the evidence as appears proper in the
circumstances.'

The evident purpose and effect of this provision was that,

when 'intent' or 'foresight' was a necessary ingredient in an
offence, the jury would have to be satisfied that the defendant
actually had that intent or foresight. To the minds of most,
 Conspiracy and Intent 13

this was a desirable and important provision: indeed, some

thought that it did no more than to restate the old law which
had been mis-stated in Smith.
There was however a canker in that desirable fruit—and the
canker was 'recklessness'. Various Acts of Parliament have
distinguished between intention and recklessness, A very good
example is the Criminal Damage Act, 1971.1 take section i (i)
to illustrate the point:
!
A person who without lawful excuse destroys or damages
any property belonging to another intending to destroy or
damage any such property or being reckless as to whether
any such property would be destroyed or damaged shall be
guilty of an offence.'

Is 'recklessness' a different concept from 'intent/foresight' or,

in the end, is it really the same thing? The method of legislating
as in the Criminal Damage Act would suggest that it is a
different concept. That, certainly, is the logic of section i of
that Act—but let us not be seduced into thinking that logic
provides the answer to the question.
In 1954, a lecture by Lord Devlin was published in the
Criminal Law Review. In it, he said, at page 666, that if a
man had decided that certain consequences would probably
follow from his actions:

' ... for the purposes of the law he intended them to

happen, and it does not matter whether he wanted them
to happen or not . . . it is criminal intent in the strictest
sense.'

That approach can be followed through a number of cases,

down to and through Smith, in which it was quite clear that the
House of Lords equated foresight of probable consequences
with intent to produce those consequences. It was adopted in
Hardy v Motor Insurers Bureau [1964] 2 QB 745. In that case, the
Court of Appeal consisted of Lord Denning MR and Pearson
and Diplock LL.JJ. They had to consider the meaning of
 Law Lectures for Practitioners

'Intent to do grievous bodily harm' under section 18 of the

Offences against the Person. Act, 1861. Lord Denning said,
at page 758:

'(The test for the jury to apply) Is the evidence so strong

that we are satisfied that he, the accused man, must himself
have been aware that grievous bodily harm was likely to
result?'

Which brings the story to the case of Hyam [1974] 2 WLR 607.
I doubt whether there have been many cases which have caused
more problems of interpretation and application. The facts of
the case were tragically appalling. Mrs Hyam was a cast-off
mistress who wanted to frighten off her successor. To do so,
she set fire to the successor's home, knowing that the new
mistress and her three children were in the house and would be
put in great danger. Two of those children died and Mrs Hyam
was tried for and convicted of their murder.
The case went eventually to the House of Lords. The
Committee consisted of the Lord Chancellor, Lord Hailsham,
Viscount Dilhorne and the Lords Diplock, Gross and Kil-
branden. The undoubted effect of the decision (the Lords
dismissed the appeal) is that a person who does an act, knowing
that it is probable that grievous bodily harm would result, is
guilty of murder if death results, even though that person does
not 'intend' to endanger life by his actions. There are crucial
passages in the speeches which suggest that their Lordships
regarded the case as going wider in application than murder.
Thus, Lord Diplock, at page 269:

'This appeal raises two separate questions. The first is

common to all crimes of this class. It is : what is the attitude
of mind of the accused towards the particular evil conse-
quences of his physical act that must be proved in order to
constitute the offence? Upon the first question I do not
desire to say more than that I agree with those of your
Lordships who take the uncomplicated view that in crimes
of this class no distinction is to be drawn in English law
 Conspiracy and Intent 15

between the state of mind of one who does an act because

he desires it to produce a particular evil consequence, and
the state of mind of one who does it knowing full well that
it is likely to produce that consequence although it may
not be the object he was seeking to achieve by doing the
act. What is common to both states of mind is willingness
to produce the particular evil consequence: and this, in
my view, is the mens rea needed to satisfy a requirement,
whether imposed by statute or existing at common law,
that in order to constitute the offence with which the
accused is charged he must have acted with 'intent' to
produce a particular evil consequence or, in the ancient
phrase which still survies In crimes of homicide, with
'malice aforethought'.'

The same conjunction of 'intention' and 'foresight' can be

seen in Lord Simon's speeches in Lynch v DPP for Northern
Ireland [1975] AC 653 and in R v Morgan [1975] 2 WLR 913. It
can be seen, also, in R v Majewski [1976] 2 WLR 623. The impor-
tance of the latter two cases is that they were not cases of
murder: they concerned, respectively, rape and assault. In
Morgan^ Lord Simon said, at page 939:

'By 'crimes of basic intent' I mean those crimes whose

defintion expresses (or, more often, implies) a mens rea
which does not go beyond the actus reus. The actus reus
generally consists of an act and some consequence. . . .
(He went on to identify assault as an offence of basic
i n t e n t ) . . . . The prosecution must prove that the accused
foresaw that his act would probably cause another person
to have apprehension of immediate and unlawful violence
or would possibly have that consequence, such being the
purpose of the act or that he was reckless as to whether or
not his act caused such apprehension. This foresight—the
term of art is 'intention'—or recklessness is the mens rea in
assault. . . . On the other hand there are crimes of ulterior
intent—'ulterior' because the mens rea goes beyond
contemplation of the actus reus. For example, in the crime
16 Law Lectures for Practitioners

of wounding with intent to cause grievous bodily harm,

the actus reus is the wounding. The prosecution must
prove a corresponding mens rea (as with unlawful wound-
ing), but the prosecution must go further: it must show
that the accused foresaw that serious physical injury
would probably be a consequence of his act, or would
possibly be so, that being a purpose of his act.'

Lord Simon does not equate recklessness with intent, as that

second passage dealing with offences of 'ulterior' intent shows.
But is there, in fact, any difference between 'recklessness' and
'a willingness' to expose another to the risk of an undesired but
foreseen probable consequence? Let .me quote from Lord
Diplock again, this time in R v Lawrence [1981] 2 WLR 524,
at page 535:

'Recklessness on the part of the doer of an act does presup-

pose that there is something in the circumstances that
would have drawn the attention of an ordinary prudent
individual to the possibility that his act was capable of
causing the kind of serious harmful consequences that the
section which creates the offence was intended to prevent,
and that the risk of those harmful consequences occurring
was not so slight that an ordinary prudent individual would
feel justified in treating them as negligible. It is only when
this is so that the doer of the act is acting 'recklessly if before
doing the act, he either fails to give any thought to the
possibility of there being any such risk or, having recognised
that there was such a risk, he nevertheless goes on to do it.'

In that passage there are two detectable differences between

recklessness and intent/foresight. First: in order to prove
intent/foresight, the prosecution must demonstrate affirmatively
that the accused actually foresaw the risk that the particular
harmful consequence would probably ensue; whereas reckless-
ness does not require actual foresight—it is sufficient if, on the
facts, an ordinary prudent person would have foreseen the risk
of possible harmful consequences flowing from the accused's
 Conspiracy and Intent 17

acts. But, what about, 'or, having recognised that there was
such a risk, he nevertheless goes on to do it'? In that situation
there is actual foresight, so what is it, if anything, which
distinguishes recklessness in that sense from intent/foresight?
The classic answer lies in the declension from 'probable' to
'possible'. If a person foresees that his actions will probably
produce a particular consequence, he intends that consequence
even if he does not desire it, whereas, if he foresees that his
actions will possibly produce that particular consequence, he
does not intend it, he is merely being reckless about it—provided,
that is, that he does not desire to produce it, in which case he
would intend it.
Which is all very well and good, until one recalls that
Lawrence was a case of causing death by reckless driving and
that what Lord Diplock meant when he talked of 'the possibility
that his act was capable of causing the kind of serious harmful
consequences that the section which creates the offence was
intended to prevent' was the death of another road user. That
raises, immediately, the question whether there is any difference
between the mens rea ingredients of causing death by reckless
driving and those of what we loosely call motor manslaughter' ?
There are different ways in which manslaughter may be
committed: for my present purposes, it is sufficient if I define
motor manslaughter as causing the death of another unlawfully,
without intending to cause that death or to do grievous bodily
harm to the victim but by grossly negligent driving. I do not
propose to essay a definition of gross negligence: all I need say
is that it requires the proof of a very high degree of negligence
and that mere inadvertence is insufficient. Which brings me to
the case of R v Seymour [1983] 3 WLR 349. The defendant had
been convicted of motor manslaughter. His appeal against that
conviction was dismissed by the Court of Appeal and he then
appealed to the House of Lords. Four of the members of the
Committee (the Lords Diplock, Fraser, Roskill and Bridge) had
been in Lawrence. In the latter case, Lord Diplock had said, at
page 535, that the appropriate direction to a jury on the mean-
Ing of driving recklessly was that they must be satisfied:
18 Law Lectures for Practitioners

'First, that the defendant was in fact driving the vehicle

in such a manner as to create an obvious and. serious risk
of causing physical injury to some other person, who might
happen to be using the road. , , . Second, that in driving
in that manner the defendant did so without having given
any thought to the possibility of there being any such risk
or, having recognised that there was some risk involved,
had nonetheless gone on to take it, , . .'

Faced with the problem of distinguishing 'death by reckless',

so defined, from gross negligence 'motor manslaughter', Lord
Roskill ended his speech in Seymour with these words (at
page 359) '
'I would therefore answer the certified question as follows:
Where manslaughter is charged and the circumstances are
that the victim was killed as the result of the reckless driving
of the defendant on a public highway, the trial judge
should give the jury the direction suggested in Lawrence
but it is appropriate also to point out that in. order to
constitute the offence of manslaughter the risk of death
being caused by the manner of the defendant's driving
must be very high,'

Now, if that is correct, is there really any difference between

the test for motor manslaughter—which is a recklessness
offence—and that for murder, at least in so far as the latter is
enunciated in Hyam? Is it possible to distinguish between the
state of mind of a person who actually foresees that serious
bodily harm or death, although undesired, is a probable
consequence of his actions and that of a person who 'recklessly'
pursues a course of conduct, recognising that it carries with it
some risk of causing death (or serious bodily harm) to another,
which risk is, in fact very high?
Although I must accept that the two situations might be
distinguishable in theory (so that it might not be possible to
argue that Hyam and Seymour are in conflict) it seems to me
that:
 Conspiracy and Intent 1g

(i) in reality, the two tests come to the same thing; and
(ii) the theoretical, almost sophistical, distinction that could
be drawn, would make no sense to any jury called upon
to consider and apply both of them in any one case.
The criminal law is not about abstruse legal theories, although
they may affect the development and academic interrelation of
the law, it is about people and their actions and reactions in
real life. I suggest that, if Hyam and Seymour are looked at in that
light, they are in conflict—with the unavoidable consequence
that at least one of them must be wrong. It is the definition of
'recklessness' (for the offence of motor manslaughter) or is it the
Hyam approach, which equates foresight of an unwanted
probable consequence with the intention to produce that
consequence?
I do not advance an answer to that question, but I do not
hide that Hyam will be overruled by some process at some time.
Indeed, as you probably know, there have been occasions when
lesser courts, able to distinguish Hyam on the facts, have refused
to follow it because of an evident distaste for what it would
compel them to hold in the particular cases they were con-
sidering. There are in all the arguments about Hyam, are there
not, shades of what happened about the decision in Smith?
Nonetheless, Hyam exists—and it has a respectable ancestry,
as I have attempted to show. In the context of this general
discussion about 'intent', its significance is that, putting the
point at its lowest, it is possible that, where 'intent' has to be
proved as an ingredient of any offence, be it one of violence or
one of dishonesty, it may be sufficient for the prosecution to
prove foresight of a probable consequence, even if that conse-
quence was positively not to occur.
In the context of fraud and fraud conspiracy cases, this may
have a significant bearing on the position of those who are used
by the principal fraudsman as 'innocent' agents for his fraud.
I return, therefore, to conspiracy to defraud, with the question:
'what is the mens rea required for such a conspiracy?' It is,
beyond question, an offence of dishonesty: I will deal with that
in a moment. It is, also, an offence which requires agreement
2O Law Lectures for Practitioners

to pursue the specified course of conduct—an Intention to

achieve together the specified objective, bearing in mind that a
conspirator does not have to make an actual agreement, he may
signify his agreement simply by joining in the enterprise. 'An
intention to achieve together the specified objective'—does this
bring in foresight? Does it bring in 'mere' recklessness? Those
are questions to which I will advert in my second lecture.
Let rue deal with 'dishonesty'. There have been two views as
to the proper test for dishonesty, both enunciated by the Court
of Appeal. In Greenstein and Green [1975] i WLR 1353, they said
that it was an objective test. In Landy and Others [1981] i WLR
355, they said that it was wholly subjective, A valiant attempt
was made to deal with this conflict—by saying that there was
nonesuch—in Mclvor, The Times, 18 November, 1981; in this
case the Court said that test in theft cases was objective whilst
the test in conspiracy to defraud cases was subjective. This
judgment of Solomon was revised when the Court dealt with
the case of Ghosh [1982] 3 WLR no. Lord Lane CJ delivered
the judgment of the Court. At page 116, he said:

'We feel . . . that in seeking to reconcile the two lines of

authority . . , the Court . . . in McIvor was seeking to
reconcile the irreconcilable. . . . In determining whether
the prosecution, has proved that the defendant was acting
dishonestly, a jury must first . . . decide whether according
to the ordinary standards of reasonable and honest people
what was done was dishonest. If it was riot dishonest by
those standards, that is the end of the matter and the
prosecution fails. If it was dishonest by those standards,
then the jury must consider whether the defendant himself
must have realised that what he was doing was by those
standards dishonest.'

That test can be taken to apply across the spectrum of the

criminal law and, therefore, to conspiracy to defraud.
An important application of the crucial question of dishonesty
is to be seen in Attorney General's Reference (Mo 2 of 1982) [1984]
2 WLR 447, The detailed facts cover some five pages of the
 Conspiracy and Intent 21

report and I do not intend to do more than to summarise: the

two defendants were the sole shareholders and. directors of a
number of companies; they and the companies borrowed
extensively on the back of the property boom and, when the
boom ended, the shortfall on their personal and company
borrowings ran into millions of pounds; during the relevant
period and contrary to express oral and written advice from
their accountant—the two directors syphoned off large sums of
money from the companies to accounts abroad; the counts in
the indictment alleged theft, effectively, of funds withdrawn
from those accounts. The defence case was that the two directors,
in reality, were the companies, that what they did must be
taken to have been consented to by the companies and that,
therefore, there could not be any theft. This argument proceeded
before the trial judge who directed an acquittal. The Attorney
General's reference posed the questions: whether a man in total
control of a limited liability company (by reason of his share-
holding and directorship) is capable of stealing the property of
the company; and whether two men in total control of a limited
liability company (by reason of their shareholdings and
directorships) are (while acting in concert) capable of jointly
stealing the property of the company.
The short answer was 'yes'. The court examined the authori-
ties and pointed in particular to two civil cases:

Multinational Gas and Penochemical Co. v Multinational Gas and

Petrochemical Services Ltd. [1983] Ch 258; and Belmont Corpora-
tion Ltd v Williams Furniture Ltd [1979] Ch 250.

The former made clear that where the officers or shareholders

of a company act negligently in relation to their conduct of the
company's affairs (and provided the relevant transations are
intra vires the company's memorandum), their actions are the
actions of the company itself; whereas the second case involved
allegations of dishonest conspiracy by the directors to misuse
the company's funds. In giving his judgment in Belmont,
Buckley LJ said (at page 261):
22 Law Lectures for Practitioners

'It may emerge at a trial that the facts are not as alleged
In the statement of claim, but if the allegations in the
statement, of claim are made good, the directors , . , must
then, have known that the transaction was an illegal
transaction. But in my view, such knowledge should not
be imputed to the company, for the essence of the arrange-
ment was to deprive the company of a large part of its
assets. I have said the company was a victim of the
conspiracy, I think it would be irrational to treat the
directors, who were allegedly party to the conspiracy,
notionally as having transmitted this knowledge to the
company; and indeed it is a well recognised exception
from the general rule that a principal is affected by notice
received by this agent, that, if the agent is acting in fraud
of his principal and the matter of which he has notice is
relevant to the fraud, that knowledge is not to be imputed
to the principal. So, in my opinion, the company should
not he regarded as a party to the conspiracy, on the ground
of the lack on the necessary guilty knowledge.'

In the Attorney General's reference, the Court of Appeal

went on to point out that there was strong academic argument
that the same approach should be adopted by the criminal
law—and then proceeded to do so. For those who can stand the
thought of being at my second lecture, I shall return to this
case to illustrate a particular point. In the meantime, I draw
attention to the expressed fact that the withdrawals of these
monies by the defendants was contrary to the accountant's advice.
Question: suppose that it had been to the contrary, what would
have been the positions of the directors and of the accountant?
I turn now, and finally for this lecture, to the question of
fraudulent trading. Section 275(1) and (3) of the amended
Companies Ordinance defines the criminal offence of fraudulent
trading as the carrying out of the business of a company,
whether or not it has been or is being put into liquidation:

'With intent to defraud the creditors of the company or

creditors of any other person or for any fraudulent purpose/
 Conspiracy and Intent 23

Subsection (3) further makes It clear that any person (officer

or not) who knowingly is a party to the fraudulent trading
commits the criminal offence. This legislation mirrors, although
the wording is slightly different, the relevant effect of section
332, Companies Act, 1948, as amended.
The application of the English provision was considered by
the Court of Appeal in R v Grantham (1984) 79 Cr AppR 86.
The crucial facts were that the defendant was a director of a
company in charge of its administration. Its principal or only
business was the importation of root crops. Grantham caused
the company to buy heavily, and on credit, French potatoes.
Then the potato market collapsed and he had to sell the
potatoes at below cost but he still went on ordering potatoes
on credit from the French supplier. The company did not have
the funds to pay for them and no prospect of obtaining such
funds. Grantham, was charged with fraudulent trading. He
appealed against conviction on the ground of misdirection by
the trial judge. The judgment of the Court of Appeal was
given by Lord Lane CJ. Identifying the real issues in the case,
he said (at page 88) that there were two:
' . . . first, was this business carried on dishonestly by way
of fraud upon a creditor (the French supplier) ? Secondly,
if so, was (Grantham) party to the dishonesty and fraud ?
The direction which was in issue is set out in full at page 88
of the report. I summarise it thus: what the judge told the jury
was that they could find intent to defraud (a) if there never
was any intention to discharge the debt arising from the credit
given or (b) if, at the time that the debt was incurred, the
trader knew there was a substantial risk that the debt would
not be repaid. Counsel for the appellant relied on two cases
decided in the early 19305 by Maugham J on the equivalent
provision of the 1929 Act: re: William C. Leitch Brothers Ltd.
[1932] 2 Ch 7/ and re: Patrick and Lyon Ltd [1933] i Ch. j86.
I quote passage from the second case (at page 790):
'I will express the opinion that the words 'defraud' and
'fraudulent purpose', where they appear in the section in
24 Law lectures for Practitioners

question, arc words which connote actual dishonesty

involving, according to current notions of fair trading in
the commercial area, real moral blame.'

He relied also on Buckley J's famous dictum in the unreported

case from 1960 of re: White and Osmond (Parkstone) Ltd.

'In my judgment, there is no tiling wrong In, the fact that

directors have credit at a time when, to their knowledge,
the company is not able to meet all its liabilities as they fall
due. What is manifestly wrong is that if directors allow a
company to incur credit at a time when the business is
being carried on in such circumstances that it is clear that
the company will never be able to satisfy its creditors.
However, there is nothing to say that the directors who
genuinely believe that the clouds will roll away and the
sunshine of prosperity will shine on them again and
disperse the fog of their depression are not entitled to
credit to help them to get over the bad time,'

The Court of Appeal said (at page 89) that the two judg-
ments of Grantham J did, not sustain the proposition that the
proper direction was that the prosecution had to prove that
the appellant knew that there was no reasonable prospect of the
creditors ever being repaid—and said so because (a) Grantham J
was not attempting to define 'fraud' and (b) he was not
addressing himself to the question of the proper direction to the
jury. With regard to Buckley J's dictum, they said (at page 90):

'In so far as Buckley J was saying that it is never dishonest

or fraudulent for creditors to incur credit at a time when,
to their knowledge, the company is not able to meet all
its liabilities as they fall due, we would respectfully
disagree.'

The Court went on to refer to R v Sinclair (1968) 52 Cr AppR

618 in which the Court of Appeal approved of the direction by
the trial judge:
 Conspiracy and Intent 25

'It is fraud if it is proved that there was the taking of a

risk which there was no right to take which would cause
detriment or predjudice to another.'

That sound's suspicously like 'recklessness' does it not? The

Court in Grantham dismissed the appeal saying that the judge's
direction was correct in law.
That case—and the whole question of fraudulent trading—is
probably worthy of a lecture of its own. I mentioned it now in
some detail for two reasons:
(1) for some reason, 'fraudulent trading' is an offence
consistently misunderstood by practitioners, and
(2) in light of what I will have to say about the criminal
liability of professional advisers in my second lecture, the
correction of the popular view of what Buckley J's dictum
meant (another confirmation of the case of Sinclair) needs to be
widely known.