PROJECT SUBMISSION FOR THE TOPIC ‘CRIMINAL CONSPIRACY AND THE ROLE OF

INTENT
B.A.LLB. (HONS) FYIC-FIFTH SEMESTER

SUBMITTED TO: SUBMITTED BY:

Dr. IVNEET KAUR SHAWAIZ NISAR

ASSISTANT PROFESSOR OF LAW ROLL NO: 18163

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, SEMESTER: V

PUNJAB.

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CANDIDATE CERTIFICATE

Date: 12/09/2020
Place: RGNUL

I, the undersigned, hereby solemnly declare that the project Criminal Conspiracy And The Role Of Intent
submitted to Rajiv Gandhi National University of Law, Punjab, is original and bonafide research work and
due acknowledgement has been made in the text of all material used. I hope that this work will be helpful in
enhancing the knowledge of readers and framing of the policies in the future course. All the information
declared hereby is true to the best of my knowledge.

Shawaiz Nisar Rather

Roll No.18163
Year: 2nd, B.A.LLB (Hons.)
Rajiv Gandhi National University of Law, PUNJAB

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 ACTUS CONTRA ACTUM
“Actus Contra Actum” is a latin maxim which means that, ‘a contract is an act as it were against an
act’. The maxim implies that a contract is essentially an act in the nature that as if it were against an
act. In the formation of a contract, an act is required to be done by the party against some
consideration. This concept has been extended to criminal conspiracy which also requires
agreement (either expressed or implied) between the participants. The conspirators must agree to
the conspiracy and to the act to be committed thereof. Simply there must be meeting of minds
between the participants.
Illustration:-
A, and B enter into a contract whereby A supplies rice to B for Rs. 10,000. The amount of Rs.
10,000 here forms the consideration against the act of supplying rice.
CRIMINAL CONSPIRACY
In Criminal Law, Conspiracy refers to an agreement between two or more persons to commit a
crime at some time in the future. In common law jurisdictions, this crime was capable to grow
infinitely and was able to fit in any new situation which could arise. It was enough to show that
there was a high level threat to society, in order to attract the offence. With this wide room for
inclusion, the courts could make any relevant offence to fit in conspiracy and expanding its
boundary. Subsequently after the Law Commission Report No. 76 on Conspiracy and Criminal Law
Reform1 , an act called the Criminal Law Act 1977 was enacted and it abrogated all the varieties of
conspiracies created by the courts. However, two of varieties were retained viz.,Conspiracy to
defraud, and conspiracy to corrupt public morals or to outrage public decency. The conspiracy to
defraud was retained by Section 5(2) of the 1977 Act and was defined in Scott v Commissioner of
Police of the Metropolis per Viscount Dilhorne2 as:
....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 was retained by Section 5(3) of
the 1977 Act and these offences cover cases like, a conspiracy by which a publisher encourages
immoral behaviour through publication of explicit content in a magazine or periodical.3

1 Conspiracy and Criminal Law Reform, 1976 Law Com No 76

2 Scott v Commissioner of Police of the Metropolis per Viscount Dilhorne, 1974 [UKHL] 4
3 Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions, [1973] AC 435
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The common law definition of Criminal Conspiracy as stated by Lord Denman in Jones’ case4 is as,
“That an indictment for conspiracy must charge a conspiracy to do an unlawful act by unlawful
means”
This definition was later expanded by Willies, J. in Mulcahy v. Regina5 and in an unanimous
decision in Quinn v. Leathem6 . It was stated that, “A conspiracy consists not merely in the intention
of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by
unlawful means. So long as such a design rests in intention only it is not indictable.”
INDIAN SCENARIO
In India, Conspiracy was only a civil wrong until an amendment to the Criminal Law was made in
1913. Through this amendment, conspiracy was brought under the ambit of Indian Penal Code and
two new sections were inserted into it viz., Sections 120-A, and 120-B. Section 120-A of the Indian
Penal Code defines the offence of Criminal Conspiracy as:-
“When two or more persons agree to do, or cause to be done an illegal act, or an act which is not
illegal by illegal means, such an agreement is designated as criminal conspiracy.”7
The section further requires a covert act to be done in order to indict a person under conspiracy.
From the above definition it is clear that the crime of conspiracy has following essentials:
1. There must be an agreement between two or more persons 8,
2. Agreement must relate to either commission of an unlawful act or doing some lawful act in an
unlawful manner 9,
3. There must be a criminal object as either the ultimate aim of the agreement, or the means or one
of the means by which the aim is accomplished. 10
It is to be understood that each person to the conspiracy need not know all the details of the plan or
scheme nor participate in each and every stage of it. Only agreement to the design or object of such
conspiracy is enough to attract Section 120-A IPC. Moreover, the act of conspiracy is separate from
the crime for which the conspiracy is made. The punishment is separate and independent for

4 Jones’ case (1832 B & AD 345)

5 Mulcahy v. Reg (1868) L.R. 3 H.L. 306
6 Quinn v. Leathem 1901 AC 495 at 528
7 Indian Penal Code 1860, Section 120-A (Act 45/1860)
8 Rajiv Kumar v. State of U.P (2017) 8 SCC 791.
9 Ibid.,
10 Ram Narayan Popli v. C.B.I, (2003) 3 SCC 641.
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conspiracy and the crime committed thereof.11 And the conviction and subsequent punishment for
conspiracy can be made irrespective of the commission of main crime for which the conspiracy was
made.
A leading case of Indian Supreme Court in this area is State of Maharashtra & Ors. v. Som Nath
Thapa & Ors12 , where the court observed that, for a person to be convicted of conspiracy it is
necessary that such a person was aware of the object which its co-conspirators wanted to achieve.
The conspiracy was dealt thoroughly in State v. Nalini13 commonly called Rajiv Gandhi

Assassination case where several observations were made the Apex Court. Some of them are:-
1. When a legal act is done by illegal means, overt act is necessary. The offence of criminal
conspiracy is an exception to the general law where intent alone does not constitute a crime.
However along with intent, joining hands with persons having same intention and an agreement
to carry out the object must be there.
2. Once the object of conspiracy is achieved, the subsequent unlawful acts, would not make the
accused a part of the conspiracy. One such act is giving shelter to an absconder.
3. Circumstances and conduct of the accused can be a determinant of conspiracy.
4. The most important observation of the court was that Conspirators can be enrolled in a chain - A
enrolling B, B enrolling C, and so on. In such cases all of them shall be considered as members of
a single conspiracy if they so intend and agree, irrespective of the fact that each member only
knew the person who enrolled him and who he enrolled.
5. Another important observation was that, irrespective of the commission of the intended act, the
persons can be charged of conspiracy if its essentials are proved.
6. It is not required that the conspirators should agree to the common purpose at the same time.
They may join at any time before the consummation of the object.
7. The unlawful agreement rather its accomplishment, is the essence of the offence of conspiracy.
8. The criminal conspiracy is the partnership in crime.
9. A person may join a conspiracy by either a word or by conduct, but the offence requires more
than a passive attitude towards an existing conspiracy. The person who commits an act while
knowing it is in purpose of the conspiracy is guilty. And the person tacitly consenting to the

11 Leo Roy Frey v. Suppdt. Distt. Jail AIR 1958 SC 119.

12 State of Maharashtra & Ors. v. Som Nath Thapa & Ors (1996) 4 SCC 659
13 State v. Nalini (1999) 5 SCC 253.
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 object of a conspiracy is also guilty irrespective of the fact that he intended not to take active part
in it.
ROLE OF INTENT IN CONSPIRACY
Criminal Conspiracy as we know is the agreement between tow or more persons to commit any
illegal act or legal act by illegal means. From this definition it is obvious that there are few
essentials which must be fulfilled for attracting the offence of conspiracy. These are:-
‘Intent’
The element of intent in conspiracy is as essential as in any other crime. Without malaise the
offence is not attracted. There must be an intent to join the group of participants along with an intent
to act in an illegal manner or doing an illegal act itself. This intent refers to the state of mind of the
person; in case it is bonafide then the offence of conspiracy is not attracted and if malafide then a
person can be convicted of it. Mere association with the group of conspirators also cannot attract
conspiracy, there must be agreement that the person will participate in the commission of the
unlawful act.
Agreement
Agreement is equally important as intent, as it is the joining agent of intentions which respective
participants harbour separately. There must be an agreement (either implied or expressed) to do the
unlawful act or lawful act in an unlawful manner. The circumstances can be very helpful in
determining the agreement.
Overt Act
This is not the universal ingredient of the crime of conspiracy but is in many jurisdictions.
Moreover, the presence of an overt act is an essential ingredient in case of conspiracy in tort and
contract laws. Overt act involves an attempt or some concrete steps in furtherance of the design of
conspiracy.

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 ABOUT THE ARTICLE
The article taken by the author for this project is titled as ‘Intent in Criminal Conspiracy’ authored
by Albert J. Harno14. The article was first published in May 1941 and deals with Conspiracy as a
whole and Intent in Criminal Conspiracy in particular. The article has three parts. The first deals
with the origin of conspiracy as a crime starting from the enactment of Ordinacio de
Conspiratoribu” by Edward I in 1304 and later developments till 20th century. The second part
which is relevant to the topic of this project deals with intent in case of conspiracy. This part is
further divided into composition of intention, types, definition, and case laws. The author in this
part has dealt with two types of intentions viz., Intent to agree in Conspiracy, and the common
intent in conspiracy. Thereafter comes the third part which deals with civil conspiracy and that is
not the part of my analysis. In the end is conclusion, where the author puts his own view.

ANALYSIS
I. INTENT
Intention is one of the most important concepts in criminal law as it is the distinguishing factor
between criminal law and civil law. As we all know that any offence to be called criminal requires
two essentials, one is ‘act’ or ‘actus rea’ and another ‘intention’ or ‘mens rea’. Intention is generally
defined as the objective or purpose behind doing any act. In criminal law, it means the subjective
state of mind that must accompany the commission of a crime so as to consider violation of the law.
As per the ruling in R v Mohan15 it is defined as "the decision to bring about a prohibited
consequence.” In simple language, it means if the person doing a criminal act really intended to do
so or it happened on account of some other reasons like accident indicating that the person doing so
did not want to do it. The concept of intention finds its utility in all criminal acts but the most in
‘Conspiracy’.
Conspiracy is presently defined as the agreement between two or more persons to do something
unlawful or doing something lawful in an unlawful manner. This is the only case where not an act
rather an agreement or a plan to do an act is made punishable. In order to indict a person for the
offence of Conspiracy, intention of the accused to commit the unlawful act or lawful act by
unlawful means, is essential. However, as cited by the author (Hereinafter Harno) in Mulcahy v.
Regina16, it was held that mere ‘intention’ to conspire is not enough to attract the offence of

14 Albert J. Harno, Intent in Criminal Conspiracy, 89 U. Pa. L. Rev. 624 (1941) (Hereinafter Harno)
15 R v Mohan ([1976] QB 1)
16 Mulcahy v. Regina, (1868) LR HL 306
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conspiracy rather there must be an ‘agreement’ to do the unlawful act or lawful act by unlawful
means. In case, two persons intend to harm a third person but without agreeing to each other in
design, it would not be conspiracy. The agreement ie, promise against promise between the
conspirators is essential. But when we deal with criminal law, we are always concerned with
intention, so intention also forms an essential part of conspiracy as opposed to the above
observation in Mulchay v. Regina. Moreover, when we say unlawful agreement, we should
understand that what makes an agreement unlawful can be a malafide intention also, therefore
intention is essential. As already mentioned that conspiracy is the only crime where just intention to
do something or agreement to that effect is punishable. Moreover, same intention of one person is
not punishable but of more than one. What is the rationale behind such a phenomenon? Harno
mentions two reasons for it: Firstly, the intention of a single person is a threat community but when
two or more persons combine with the same intention and with a proper design, such threat
increases. The chances of their plan to succeed goes on increasing. That’s why, such an intention
and agreement is punishable. On this, I would like to differ because a single person’s intention can
also create threat and has the potential to accomplish the acts planned by him. Therefore saying, due
to the increase in threat the agreement has been made punishable is only partly correct. Another
reason given by the author is the eviction of crime. The author presents a hypothetical situation
where two men individually harbour the intention to harm another but with no agreement between
them. Now, one of them or both attempt to commit the act but with failure, this would not be
punished even if proved because just the attempt cannot be made punishable and the conspiracy
would not lie due to no agreement between the accused. This could have been right in 1940s but not
in the present time as today even attempts to commit an offence are punishable like attempt to
murder is a proper offence with rigorous punishments.
Now, coming back to intention; intention of the conspirators is as much essential as an agreement
between them, here I would like to partly disagree with the observation made in Mulcahy v.
Regina17. The author also holds the same view, if only agreement should be consideration then the
threat to community in case of an agreement merely to do a simple harm but with malaise can be
treated as conspiracy but the whole threat to the community can only be inferred from the intention
of the conspirators. Agreement is fine but the full significance of the peril they hold for community
can only be understood in terms of their purpose or intent. Now, on agreement as essential for
conspiracy, the author would like to disagree with Harno who says that the proper observation is

17 Ibid.,
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"the conspiracy consists not merely in the agreement of two or more but in their intention.” He
further contradicts with the view of Chelmsford18 that, “it is wrong to say that conspiracy rests in
intention only”. At the same time intention without design cannot be taken as a threat to the
community. Therefore both form the essentials of conspiracy. According to the author, an agreement
with the intention to commit an unlawful act or a lawful act by unlawful means offers the prefect
definition of conspiracy.
The observation made by Bishop as cited by Harno offers the perfect definition to Conspiracy.
Bishop says that Conspiracy is “Corrupt agreeing”, he explains corrupt as ‘evil purpose’ (so related
to intention) and ‘agreeing’ as relating to agreement or meeting of minds19. The author would like to
agree with Wharton20 also who says, ‘joint intent’ is necessary, in case there is no meeting of minds
- no agreement, hence no conspiracy. There was no question of intention till the definition of
unlawful act or lawful act with unlawful means was accepted. The moment some ‘lawful acts with
lawful means’ cases were brought before the courts, the question of intention arose.
Harno moves on to describe two types of intent in conspiracy viz., ‘intent to agree to the
conspiracy’ and the ‘common intent of the conspiracy’21. The first one means that, do the parties to
conspiracy agree to conspire an act. This simply means, if the party is willing to become a part of
conspiracy irrespective of what is being conspired. Second one means, agreeing to what is being
conspired. This means if the party is willing to do what it's co-conspirator/s are proposing. The issue
with the first is whether each of the persons charged is a party to the agreement. Once the
agreement is established, the next question is whether the purpose agreed upon involves a criminal
intent.
II. INTENT TO AGREE IN CONSPIRACY
Harno says that other criminal offences can be decided easily on the basis of commission of act, but
in case of conspiracy it is difficult since there is no act on the part of accused. What is to be proven
is the state of mind of the person, whether he had the intention to commit the offence which in most
cases is difficult, since the accused does not say what he intended to do? Moreover, proving implied
agreement between the conspirators is extremely difficult. By intent to agree in conspiracy, it is to

18 Mulcahy v. Regina, L. R. 3 Eng. & Ir. App. 3o6, 317 (1868) cited note 36 supra.

19 2 BISHOP, CRIMINAL LAW (9th ed. 1923) §§ 171, 172.

20 2 WHARTON, CRIMINAL LAW (12th ed. 1932) § i6o8.

21 Harno. at 631.
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be construed if the accused agreed to enter into an agreement with his co-conspirators. The nature
of that agreement would imply the second type of intention.
Another important question, which Harno has superficially dealt with, is whether in case of
allegation of conspiracy against two persons, if evidence shows only one person guilty, will that
person be charged of conspiracy. The answer to the question is simply No, since the number of
persons committing the offence reduces to 1 and a single person cannot be convicted of conspiracy.
A somewhat similar question was dealt by the Supreme Court of India in a case named as Ramanlal
and Anr. v. State of Haryana22, where the issue before the court was; Whether acquittal of some
members of unlawful assembly reducing the number of those convicted to less than 5 has the effect
of taking the case out of purview of Section 149 IPC (punishment for unlawful assembly)? The
court answered in affirmative. The offence of Unlawful Assembly under Indian Penal Code 186023
requires minimum 5 persons to be a part of such assembly. In this case, originally 10 people were
accused of the offence. However, 6 of them were acquitted leaving only 4 to proceed the case
against. The court held that the case under Unlawful assembly cannot be furthered since the
essential of this offence is not fulfilled. Same is the case here, if either accused proves that he did
not intend to commit the offence or his intention was bonafide. The case under conspiracy against
the other won’t sustain.
Harno narrates facts of some cases to lay emphasis on role of intent in conspiracy. For instance, he
gives the example of a federal case24 , in which 5 persons were charged with conspiracy to violate

the National Motor Vehicle Theft Act25 . The evidence cleared that there was no proof of any

involvement of two persons in the conspiracy. However, the two assisted other three (main
conspirers) in some matter essential to the conspiracy but they were not aware of it. It was held that
the two are not liable for punishment for conspiracy. So it was established that knowledge of
conspiracy is important to indict for the offence of conspiracy. Harno then points out that mere
knowledge of the conspiracy or approval of unlawful design is not sufficient. There must be unity of
intent to fulfil the act among the conspirators. The Pennsylvania court put it as, “there must be unity
of purpose, unity of design, focalization of effort upon a particular project by the persons”26. In

22 Ramanlal and Anr. v/s State of Haryana, 2015 INSC 423

23 Indian Penal Code 1860, § 141 (ACT NO. 45 OF 1860)

24 Davidson v. United States, 6z F. (2d) 250 (C. C. A. 8th, 1932).

25 National Motor Vehicle Theft Act 1934, [P.2845.1 [Public, No. 26.]

26 Commonwealth v. Zuern, 16 Pa. Super. 588, 6oo (1901).

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State v. King27 the accused had a grievance against A, and told B that if he whips A, he would pay
his fines. B replied that he has a grievance of his own against A, and he doesn’t need any favour for
this. He further said that he would whip him at the first opportunity. After some time B did beat A
severely. The person accused of conspiracy did not assist B in any way but expressed his
satisfaction over what had happened. It was held that there is no conspiracy, since there was no
concert action on the part of the accused, neither any agreement was proved. So mere knowledge or
even approval of an act cannot indict a person under conspiracy if there was no agreement.28 This
issue was also dealt by Indian Supreme Court in the case of State v Nalini29, where it held that a
person may join a conspiracy either expressly or impliedly, but the offence requires more than a
passive attitude. However at the same time it noted that the person tacitly consenting to the object of
a conspiracy is also guilty irrespective of the fact that he intended not to take active part in it.
Though there was intent on the part of both but there was not an agreement or consent to that effect,
which proves my earlier argument that neither intention not agreement alone can constitute
conspiracy, both are required.
Harno then touches upon the participation of the conspirators30 and their liability. He says if only
few members of the conspiracy commit the act still all of them who agreed to the conspiracy shall
be convicted. This was also observed in State v Nalini. The contentious issue is with respect to
observation made in United states v Manton31 where the court held that the later comers may be
held liable for the acts done before their joining. The same is inconsistent with the view here
stressed that knowledge is the essence.32
III. THE COMMON INTENT IN CONSPIRACY
As already explained common intent in conspiracy refers to the intention of all participants to
commit an act. Any criminal offence requires mens rea ie, bad intention which can be; 1.State of

mind of a person who knows the consequences of his act, 2. State of mind of a person to realise

what can be the consequences of his act.33 . Harno says that conspiracy requires the intention of first

27 State v. King, o4 Iowa 727, 74 N. W. 691 (1898).

28 Id. at 729, 74 N. W. at 692.

29 State v. Nalini (1999) 5 SCC 253.
30 Harno. at 634
31 United states v Manton, lO7 F. (2d) 834,848 (C. C. A. 2d, 1938).
32 United States v. Barrett, 65 Fed. 62 (C. C. S. C. 1894) ; United States v. Koch, 113 F. (2d) 982 (C. C. A. 2d, 194o).
33 Turner, Attempts to Commit Crimes (1934) 5 CAMB. L. J. 230, 235
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type exclusively. It may have been true in 1940s but currently the law is so strict that even the mens
rea of second kind can attract the offence of conspiracy. Again Harno undermines the importance of
agreement (express or implied) by saying that, “..the act of agreement is, at most, inchoate”34
although the statement is true but he intends to undermine agreement and this statement is contrary
to what he states before this statement, he says, the factor uniting the intentions of persons to
achieve their purpose is agreement35 .” He further says, “It is not the agreement in conspiracy that
causes the mischief; it is what the agreement portends.36” This statement is true but the essentiality
of agreement is inherent in it, when he says, it is what the agreement portends that causes mischief,
but the initiation of combined mischief starts from the agreement itself, which implies that
agreement is very central to conspiracy.
Harno says that the intent must be evil, wicked or corrupt; that the federation must be "corrupt", and
that the "motives" of the actors must be "evil" or “corrupt which is completely agreeable. At the
same time acting in good faith or with just cause is the defense which the accused can take in their
charges. Now the intent can only be satisfied if there is an agreement with knowledge that the act to
be committed is unlawful, or that it is obvious to perceive that the act is unlawful.37 Harno cites the
California District Court of Appeal’s observation that the intention must be proved as a fact and
cannot be inferred from the unlawful act38 . This is not practical since most of the times the acts are
such that the intention is obvious from them. For instance, the case of burglary which the above
court was dealing with, clearly implies that it cannot be done without bad intention (at least not
without intention of violating the law). So it follows that the commission of the act itself can be
indicative of intention in many cases. However, there are also some instances where the
commission of an act cannot indicate the intention. For instance, the illustration given by the
author39 -a person who attempted assault cannot be charged of conspiring for the murder. Here, the
act is not indicative of intention, but completely denying the role of act in determining the intention
is untrue.

34 Harno. at 635.
35 Id., at 636
36 Id.,
37 Note, CriminalConspiracy (1924) 38 HARv. L. REv. 96,97
38 People v. Flores, 86 Cal. App. 235, 237, 260 Pac. 822, 823 (1927).

39 Ogletree v. State, 28 Ala. 693, 701 (I856).

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In an Alabama case40 it was observed that, the person can be indicted for not only what the
consequences are but for the consequences from what he intended to effect, and not for his act, only
but for the intention of doing that act. This to some extent is acceptable, however, in cases where
the extent to which the consequences of the act can reach could reasonably be known, in such cases
the accused can be held liable for those consequences as well.
Now, there comes an important matter of ‘ignorance’ or ‘mistake’ of law. As we know that
ignorance of law is no excuse (ignorantia juris non-excusat), same is with mistake of law(in most
cases), a person cannot raise a defense that he committed an offence by mistake. However, Harno
has a different view when the application of same principles comes in case of conspiracy. He while
citing Keedy,41 holds the view that when a specific intent is required for an offence (here
conspiracy) and if the accused of such offence is not aware that the act is unlawful or he commits it
under a mistake. He shall not be convicted42 . Let’s take the ignorance part first, even today the law
is somewhat divided and is different in different jurisdictions. In a 2015 judgement of the United
States Supreme Court in McFadden v. United States43 , it was observed that ignorance of law cannot
be a defense in any crime, however there are some judgements by the same court which hold44 , that
such ignorance in Criminal Conspiracy can be a defense. In India, the courts have been strict in this
matter and have always been of the opinion that ignorance or mistake of law is no excuse. For more
clarity, let’s refer to the case of State v. Clemenson45, where the defendants were charged of
conspiracy to commit adultery with a woman, however they were not aware that the woman was

married. The court held that the defendants cannot be convicted of conspiracy to commit adultery,
since they were under a mistake of fact. In People v. Powell46 , the accused did not advertise which
they were obliged to do under the law, however they were not aware about it. The trial court held
that ignorance of law is no excuse, however the order was repealed by the Court of Appeal, which
stated that conspiracy requires evil intention which was absent in the case, therefore the accused
cannot be convicted. So, conspiracy involves evil intention and irrespective of the fact that an
unlawful act was done or lawful act in an unlawful manner was done, no conviction can be made if

40 Ibid.,

41 Keedy, Ignorance and Mistake in the Criminal Law (1908) 22 HARV. L. REV. 75, 89.
42 Harno. at 637
43 McFadden v. United States 135 S. Ct. 2298
44 Liparota v. United States 471 U. S. 419, 425, n. 9 (1985)

45 State v Clemenson 123 Iowa 524, 99 N. W. 139 (1904).

46 People v Powell 63 N. Y. 88 (1875).
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the person did not harbour evil intention. Same was observed in People v Flack47 . Nowadays, the
accepted definition of criminal intent is, the doing of an unlawful act intending to do it. From this
definition it follows that doing of an unlawful act intending to do it, is sufficient for convicting the
accused. There is no need to go deep into the state of mind of that person. The intention to violate
the law is sufficient.
What is more important in criminal conspiracy is purpose for which the conspirators agree? It is not
important what their intentions are or how they intend to do the act rather why did they combine.
One of the most important issues taken up by Harno relates to determining the intent/purpose of the
accused on the basis of his previous criminal record. The author would like to agree with the author
that accused’s criminal background/record should not be determinant of intention in conspiracy48. In
People v. Mader49 the court declared that, it is not sufficient to conclude on the accusation on the
basis of criminal background of the accused. However, criminal background/record of the accused
can be helpful in understanding the case, but it can never be considered as the sole determinant of
intention.
CONCLUSION
The incorporation of conspiracy as a crime and in general the development of this concept
originates from the need to protect society. It prohibits people to avoid indulging in anti-social acts.
Moreover, it was also one of the few mechanisms earlier to punish the attempt to commit any
offence. Nowadays, we have punishments for attempts as well. In the end, the author puts his view
which has seldom been observed in the whole piece. He says, that the intention is central to
conspiracy rather than the agreement. Here again, the author would like to disagree, as already
explained in analysis sections that mere intention without agreement cannot be considered
conspiracy. Both intention and agreement are essential in indicting an accused under the crime of
conspiracy. This argument of his, contradicts his own view and the facts and decision in State v.
King, where a person having same intention as of other could not be found guilty because there was
no agreement between them. Moreover, there can be situations where two persons without knowing
each other and without any agreement can have the same intention and can proceed with the same
act, can we say it is a case of conspiracy? No, we cannot because there was no agreement between
the two. At the same time, mere agreement without joint intention cannot be considered conspiracy.

47 People v Flack 125 N. Y. 324, 26 N. E. 267, II L. R. A. 807 (1891)

48 Harno. at 638

49 People v. Mader 313 IIl. 277, 285, 145 N. E. 137, 140 (1924).
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Hence, it can be concluded that both agreement as well as intention are essential to the offence of
criminal conspiracy. In this regard, the definition of Bishop that conspiracy is ‘Corrupt agreeing’ fits
perfect.
POSITIVES OF THE ARTICLE
1. Firstly, the article has been written in 1940s when the jurisprudence on Criminal Conspiracy
and specifically on ‘intent’ was very less compared to present time. Inspite of that, the author
has deeply dealt with the then niche aspect of conspiracy.
2. Secondly, the author has each time supported his argument with the helpful of authorities of the
courts.
3. Thirdly, the author presents everything in a very lucid manner and has not tried to impose his
opinion/argument on the readers. This has been achieved by presenting arguments from both
sides.
4. Lastly, the author has not directly dived into intent in conspiracy and has first cleared the
concepts of Conspiracy, Criminal Conspiracy, and Intent.
LIMITATIONS OF THE ARTICLE
1. Firstly, the author has restricted his piece to mere narration of facts and law, there is a lack of
legal analysis.
2. Secondly, the article lacks comparative analysis with respect to both jurisdiction and area of
study. It has only dealt with the situation in United States, and restricts it to criminal conspiracy.
Although a bit is discussed with respect to tort law and contract law, but that is very meagre.
3. Thirdly, the article has presented arguments from both sides without distinguishing them, it is in
a haphazard manner.
4. Fourthly, the author has not expressed his own view about the topic, as already mentioned it is
mere narration of facts and rules.
5. Lastly, Harno points out the potentiality of this law to be abused but in the next sentence he
completely ignores this concept thus leaving a gap in his research.

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