Rv Saik [2006] UKHL 18

Key point

  • S1(2) Criminal Law Act 1977 requires conspirators to have knowledge of circumstances necessary for the commission of the substantive offence, even when the substantive offence does not require it


  • D, who operated a money changer, was charged with conspiracy to launder money
  • The substantive offence of money laundering requires a reasonable suspicion that the property dealt with are the proceeds of crime
  • D appealed on the basis that, in contrast to the substantive offence, D must have intended or known that the funds involved in a transaction to be the proceeds of crime

Held (House of Lords)

  • Appeal allowed – D lacked the requisite knowledge that the funds were the proceeds of crime to be guilty of conspiracy

Lord Nicholls

There are three mental elements to conspiracy:

  1. mental element involved in making an agreement
  2. intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators
  3. intention or knowledge that a fact or circumstance necessary for the commission of the substantive offence will exist

Effect and rationale of the third mental element

  • The third mental element ‘subsumes any lesser mental element, such as suspicion, required by the substantive offence in respect of a material fact or circumstances’, ‘In this respect the mental element of conspiracy is distinct from and supersedes the mental element in the substantive offence’: [8]
  • ‘The rationale underlying this approach is that conspiracy imposes criminal liability on the basis of a person’s intention. This is a different harm from the commission of the substantive offence. So it is right that the intention which is being criminalised in the offence of conspiracy should itself be blameworthy. This should be so, irrespective of the provisions of the substantive offence in that regard.’: [13]

Current case

  • Criminal provenance of property is a fact or circumstance necessary for the commission of the offence of money laundering, thus it is a fact that falls within s1(2) of the 1977 Act, thus the prosecution must prove the conspirator intended or knew that fact would exist when the conspiracy was carried out
  • Where the property has not been identified when the conspiracy agreement is reached, D must have intended that the property would be criminal proceeds: [23]
  • Where the property is identified, D must know that is criminal proceeds: [25]
Inchoate Liability Cases
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