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CONSPIRACY TO COMMIT OFFENCES
OUTSIDE ENGLAND AND WALES
A conspiracy may involve the doing of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales which constitutes an offence in that other jurisdiction.
This situation is covered by section 1A of the Criminal Law Act 1977. Section 1A has four conditions, which all must be met if the section is to apply.
The wording of section 1A was amended from 1 February 2010 so that it now includes conspiracies in England and Wales to commit offences in Scotland or Northern Ireland. By virtue of section 4(5) of the Criminal Law Act 1977, the prior consent of the Attorney General is required to prosecute offences to which section 1A applies.
In cases where parts of the offending occur in different jurisdictions, prosecutors need to determine whether section 1A is applicable.
In R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631 [2004] QB 1418 the Court held that an English court has jurisdiction to try a "substantive offence if substantial activities constituting [the] crime take place in England"; or "a substantial part of the crime was committed here". This approach "requires the crime to have a substantial connection with this jurisdiction". It should be noted that there is no single verbal formula that must be applied: it is a question of substance, not form. Also, this approach to jurisdiction in respect of substantive offences was held to be consistent with the approach already established for conspiracy.
When deciding whether AG's consent is required, prosecutors should consider the following matters:
1. Identify the substantive offence(s) that would be committed if the agreement were carried out in accordance with the intentions of the parties.
2. Are those offences, considered separately, triable here? Jurisdiction is basically territorial. But there are many statutory provisions that make extra territorial offences triable here. (For instance, s.20 of the Misuse of Drugs Act 1971 makes it an offence if a person in the UK assists in or induces the commission in any place outside the UK of an offence punishable under the provisions of a corresponding law in force in that place.) Whether any such provisions apply needs to be checked in every case. In a case where no such statutory provisions apply, it may be obvious whether the substantive offence is domestic and thus triable here. If it is not obvious, then a helpful pointer is to ask whether, if the agreement were carried out in accordance with the parties' intentions, a substantial part of the activities that would constitute the substantive offence would take place here: R v Smith (Wallace Duncan) (No.4).
3. A substantive offence that is triable here should be tried here as that substantive offence, if at all possible.
4. If a substantive offence is triable here but, by reason of the complexity of the conduct or because no substantive offence is actually committed or for any other reason it is not practicable to try it as a substantive offence here, then a charge of conspiracy may be used. The charge may be under s.1 of the Criminal Law Act 1977, or in a case of conspiracy to defraud or to corrupt public morals or public decency, at common law: Criminal Law Act 1977 s.5(1)-(3). Section 1A does not come into play because any substantive offence would be triable here.
5. If the agreement, if carried out in accordance with the intentions of the parties, would result in the commission both of one or more offences triable here and one or more offences not triable here, then s.1A may be invoked. Whether the evidence relating to the substantive offence(s) not triable here should be led at the trial will depend on the facts of the case: is that evidence integral to, or in other words inseparable from, the evidence relating to the substantive offences that are triable here? If the answer is yes, then the evidence can be led, subject to usual safeguards such as s.78 of the Police and Criminal Evidence Act 1984. If the answer is no, then prosecutors may either omit the evidence, or apply for AG's consent under s.1A, to charge the conspiracy covering all the substantive offences, both those triable here and those not triable here.If there is doubt whether the substantive offence(s) that would be committed are triable here, then prosecutors should seek the AG's consent under s.1A.
The timely application for the Attorney General's consent is critical in conspiracy cases, which are often complex and require significant time for the Attorney General's Office to review. Furthermore, prosecutors are advised to be alert to the implications of section 1A issues at an early stage of the investigation and as part of the overall prosecution strategy. Early discussions with other prosecution authorities, such as the Crown Office and Police Scotland, may be considered as part of such a strategy in the event that acts are prosecuted outside England and Wales.
Advice can be obtained from the Attorney General's Office in relation to procedure and the presenting of the application but advice cannot be given as to whether consent is actually required. For section 1A cases, a clear analysis of why consent is needed should accompany the application.
For further guidance on obtaining the consent of the Law Officers, prosecutors should refer to Consents to Prosecute, elsewhere in the Legal Guidance.
For further guidance on joint enterprise, prosecutors should refer to Joint Enterprise elsewhere in the Legal Guidance.
(The Crown Prosecution Service - Inchoate Offences: Conspiracy to Commit Offences outside England and Wales)
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