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Timeshare Offence (Common Law)
At common law, the crime of conspiracy was capable of infinite growth, able to accommodate any new situation and to criminalize it if the level of threat to society was sufficiently great. The courts were therefore acting in the role of the legislature to create new offences and, following the Law Commission Report No. 76on Conspiracy and Criminal Law Reform, the Criminal Law Act 1977 produced a statutory offence and abolished all the common law varieties of conspiracy, except two:
Conspiracy to defraud
Section 5(2) Criminal Law Act 1977 preserved the common law offence of conspiracy to defraud.
Conspiracy to defraud was defined in Scott v Commissioner of Police of the Metropolisper Viscount Dilhorne:
“to defraud” ordinarily means “to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled.
“….an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right of his suffices to constitute the offence….”
Conspiracy to corrupt public morals or to outrage public decency
Section 5(3) Criminal Law Act 1977preserved the common law offence of conspiracy tending to corrupt public morals or outrages public decency
Conspiracy to corrupt public morals is an offence under the common law of England and Wales.
Conspiracy to outrage public decency is an offence under the common law of England and Wales.
Section 5(1) of the Criminal Law Act 1977 does not affect the common law offence of conspiracy if, and in so far as, it can be committed by entering into an agreement to engage in conduct which tends to corrupt public morals, or which outrages public decency, but which does not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement.
Jonathan Herring said that conspiracy to “corrupt public morals” has no definitive case law, that it is unknown whether or not it is a substantive offence, and that it is unlikely that conspirators will be prosecuted for this offence.
These two offences cover situations where, for example, a publisher encourages immoral behaviour through explicit content in a magazine or periodical. But, in R v Rowley, the defendant left notes in public places over a period of three weeks offering money and presents to boys with the intention of luring them for immoral purposes, but there was nothing lewd, obscene or disgusting in the notes. The judge ruled that the jury was entitled to look at the purpose behind the notes in deciding whether they were lewd or disgusting. On appeal against conviction, it was held that an act outraging public decency required a deliberate act which was in itself lewd, obscene or disgusting, so Rowley’s motive in leaving the notes was irrelevant and, since there was nothing in the notes themselves capable of outraging public decency, the conviction was quashed.
Statutory Offence
This offence was created as a result of the Law Commission’s recommendations in their Report, Conspiracy and Criminal Law Reform, 1976, Law Com No 76. This was part of the Commission’s programme of codification of the criminal law. The eventual aim was to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in ways which might offend the principle of certainty. There was an additional problem that it could be a criminal conspiracy at common law to engage in conduct which was not in itself a criminal offence: see Law Com No 76, para 1.7. This was a major mischief at which the 1977 Act was aimed, although it retained (as a temporary measure) the convenient concept of a common law conspiracy to defraud: see Law Com No 76, paras 1.9 and 1.16. Henceforward it would only be an offence to agree to engage in a course of conduct which was itself a criminal offence.
Section 1(1) of the Criminal Law Act 1977 provides:
“…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 intentions, either –
Will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement
or
Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, [added by S.5 Criminal Attempts Act 1981] he is guilty of conspiracy to commit the offence or offences in question.”
Section 1(1A) bans conspiracies part of which occurred in England and Wales to commit an “act or other event constitutes an offence under the law in force in that country or territory.” Many conditions apply including prosecutions need consent from the Attorney General.
Under section 2(1) the intended victim of the offence cannot be guilty of conspiracy.
Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:
(a) a spouse or civil partner;
(b) a person under the age of criminal responsibility;
or
(c) an intended victim of that offence.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk