Conspiracy was a misdemeanor at common law. It was classically, if
loosely, defined as an agreement to do an unlawful act or a lawful act
by unlawful means. The word ‘unlawful’ was used in a broad sense. It
included not only all crimes even Fraud, the corruption of public
morals, the outranging of public decency and some Torts. In this respect
it went far beyond the other inchoate offences of incitement and
attempt, where the result incited or attempted must be a crime. For many
years the crime of conspiracy was believed to be even more extensive
and to include any agreement to affect a public mischief; but in 1975 in
DPP v Withers the House of Lord held that an agreement which did not
come with in one of the heads referred to above was not indictable as a
public mischief.
It is the ultimate aim of the Law Commission that conspiracy shall be confirmed to agreement to commit crimes.
The
crime of conspiracy should be limited to agreements to commit criminal
offences; an agreement should not be criminal where that which it was
agreed to be done would not amount to a criminal offence if committed by
one person.
This
aim has received general approval. Its immediate implementation however
was not thought to be appropriate because the abolition of conspiracy
to defraud would leave an unacceptably wide gap in the law. It was there
fore recommended that the conspiracy to defraud should be preserved
until the Law Commission could make recommendation for more
comprehensive offences of fraud and these could be implemented.
Ironically although the Home Office, following a subsequent Law
Commission report, and finally recommended general offence of Fraud, it
has also recommended the retention of conspiracy to defraud as a
separate offence- for no other reason than to ensure that no gaps are
left in the law. Perhaps the offence will be with us forever.
It
was further decided by the law commission that, pending the outcome of a
review of the law relating to obscenity and indecency, it was
undesirable to interface with the law of conspiracy to corrupt public
morals or to outrage public decency and that these too, should for the
present, be preserved. The reform affected by the Criminal Law Act 1977
is therefore limited and provisional reform. Notwithstanding some
amendment by the Criminal attempt Act 1981 and the Criminal Justice Act
1987, it remain an ill drafted piece of legislation presenting numerous
problems of interpretation.