Saturday, April 9, 2016

The IPC and Conspiracy II: A Problem of Excess

Criminal conspiracy was something I briefly introduced on this Blog recently. There were several threads to develop, and in this rather philosophically-titled post I want to bring out an old skeleton/argument from the conspiracy closet: the offence of conspiracy must be restricted to situations where the conspiracy remains unfulfilled. When the conspiracy results in realisation of the intended/known consequences i.e. an offence, there remains no reason to separately punish the conspiracy to commit that crime. 

The Prosecutor's Darling
Conspiracy is an inchoate offence, which means that it covers incomplete acts and makes them criminal due to particular harms they present. The particular harm has been elaborated upon by courts, which have noted that there is something very dangerous about people sitting together and thinking of plans to go against the state and its laws, meriting this behaviour be deterred through penalisation [Pinkerton v United States, 328 U.S. 640 (1946)]. Now, if we agree that a conspiracy offence intends to cover the inchoate liability of people agreeing to commit offences, why do prosecutors insist upon levying conspiracy charges in cases where persons do manage to commit offences pursuant to the conspiracy? 

I argue that there are two main reasons for this, at least. The first, is the procedural benefit conferred by a conspiracy charge: a golden-lasso like quality that allows the prosecutor to rope in disparate offences and offenders in a single trial where normally they would have to be tried separately. Section 218(1) of the Criminal Procedure Code 1973 creates the rule that there must be separate charges for every distinct offence, and each charge shall be tried separately. Section 220(1) creates the exception, providing that more offences than one may be tried together if they form part of the same transaction. A conspiracy is perhaps the easiest way to create one transaction out of a variety of offences committed across space and time. While there is not much writing on this in India, there has been some commentary in England over time on this rolled-up charge of conspiracy [See references in David Ormerod 'Making Sense of Mens Rea in Statutory Conspiracies' 59(1) Current Legal Problems 185 (2006)].

The second benefit is the evidentiary relaxation provided in cases of conspiracy. In a case where Z is being tried for having committed a robbery, a statement by X that she heard Y tell her that Z was going to commit a robbery, has no value. Whatever X says is hearsay, a short term for basically saying that there is a sensory gap between X and the actual event that X is talking about - Z committing a robbery. Now flip the coin and take a case where X, Y and Z are stated to be conspirators, who committed a robbery. Suddenly, the same statement has great value. It is specifically made relevant under Section 10 of the Indian Evidence Act 1872. Having a conspiracy charge potentially allows the prosecutor to rely upon previously inadmissible evidence, naturally making it appealing. 

The Problem of Excess
The prosecutor's darling is getting overworked, sadly. Conspiracy charges are being employed ever more routinely without there being a great deal of thought, leading to unsustainable cases and easy defences. This led to courts recognising that there can be multiple conspiracies as opposed to one broad conspiracy, which would then require separate trials nonetheless. The net, thus, cannot be strung too far and wide either it would seem. Today though, there are new problems emerging particularly in the context of statutory offences, which do not require any mental element for commission of offences. Traditionally, one may recall, a crime must have an act/omission, and an accompanying mental element that makes this act/omission criminal. If I took your pen knowing its yours, its very different from me taking it absentmindedly thinking that it is mine. But as know, several offences today do not require any mental element to make conduct criminal. The circumstances and consequences hold the key. Today, for instance, Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, simply proscribes the obtaining for any person any valuable thing or pecuniary advantage without any public interest. The Delhi High Court interpreted this clause as not requiring a mens rea requirement. There is no need for you to intentionally or knowingly have obtained that valuable thing or advantage without public interest. Your conduct is criminal as long as the circumstance - of it being without any public interest - is established.

Now, can there be a conspiracy to commit such offences which the prosecution alleges occurred without any intention or knowledge on part of the offender, but only because the circumstances were found to exist? For example, consider the case against Dr. Manmohan Singh in the coal-allocation scam. The prosecution may allege that he intentionally acted/omitted to act in a manner to obtain for other persons a pecuniary advantage without any public interest. But it is also an offence, if it can be shown that other persons benefited from the acts/omissions of Dr. Singh and this was without public interest, regardless of whether or not these acts/omissions were known/intended. Can there be a conspiracy charge in the latter? A conspiracy is premised on parties agreeing on a course of conduct with the intention or knowledge that this conduct upon completion would or would result in the commission of an offence. It would, therefore, be rather absurd to charge a person for a conspiracy where the entire case is based on the non-existence of a mental element to commit crime. The English House of Lords in R v Saik [2006 UKHL 18] and the U.K. Law Commission have considered this problem of conspiring to commit statutory offences in some detail. We remain without any comparative assessment of the problem in India.

These problems remain a symptom of a deeper malaise: an insistence to employ conspiracy charges where they are not meant to be. As mentioned at the outset, conspiracy is an inchoate crime. The rationale behind criminalising conspiracies is particularly attuned to its inchoate nature. If offences are eventually committed, the fact of persons having conspired to commit them remains more suited to consideration as yet another fact to appreciate the gravity of that conduct and punish appropriately, rather than insist on treating the initial agreement separately as conduct amounting to an offence.

Are there alternatives? Well, yes. It is not necessary for a prosecutor to employ conspiracy charges to round up various offences and offenders. If the allegation is that an offence is committed pursuant to the same, then there is the route of abetment by conspiracy, under Section 107 IPC. It recognises the notion that conspiracy is only facilitating the commission of other offences. If there is involvement in the commission of the offences itself - say X, Y and Z were robbing the bank together - then there is the route of group liability under Section 34 of the IPC. The procedural advantages would be retained to cover various associate offences (suppose, forging keycards to gain entry to the bank) committed in furtherance of the main offence. The fact remains though, that today employing conspiracy charges is deeply embedded in the fabric of prosecutions that this question is considered mostly academic to only be shoved under the carpet. Until these problems are faced in some high-profile cases or repeatedly seen in a particular set of offences (as happened in England for conspiracy in money laundering offences), we are unlikely to receive the thorough re-appraisal of conspiracy law that is needed today.

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