Corporate Conspiracy: Problems of Mens Rea and the Parties to the Agreement

The essence of conspiracy is the agreement or plot formed between two or more parties. Thus, in R. v. Aspinall, for example, Brett J. A. said: ". . . . the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once and at some future time, certain things." It follows that criminal conspiracy may be loosely defined as a criminal contract: an agreement between two or more "persons". Emphasis will be placed upon the elements of that required agreement in the discussion that follows. First, there is the subjective element, which may be defined as the need for a conspiratorial mens rea, constituting agreement. In the context of corporate conspiracy, the question is whether a company can be said to have mens rea for these purposes. Second, there is the objective element, which may be defined as the need for two or more "persons". In the context of corporate conspiracy, the question is whether and by what means a company may be regarded as a person capable of agreement. It is this latter element which may be referred to as the requirement of "plurality".