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Conspiracy occurs when two or more persons agree to commit a crime-an essential feature for committing organized crime. One purpose of the conspiracy offence is to extend liability "backwards" by criminalizing the planning (or agreement) stage of a criminal offence. Conspiracy can create criminal liability even if no preparation of the contemplated offence has begun. In many jurisdictions, an act in furtherance of the agreement is required. The offence thus serves to prevent crime and allows criminal justice agencies to intervene (and enables charges to be laid) some time before an offence is actually attempted or completed. The criminalization of conspiracy has a further purpose in that it allows for prosecution of multiple persons involved in a criminal enterprise. The offence attaches liability to agreements to commit crime, which enables the prosecution of persons who organize and plan crime but do not themselves execute those plans. It is defined as an inchoate crime, or an act engaged in toward the commission of a criminal act.

The agreement must be made between at least two persons; an agreement with oneself is not possible. Jurisprudence suggests that, while the agreement cannot exist without communication between the conspirators, there is no requirement that the parties to the agreement know each other. All that is required is that each conspirator is committed to the agreed objective(s). There is no requirement regarding the level of involvement of a conspirator in the agreement. The agreement may envisage that all conspirators equally take some action towards the agreed goal, but a conspirator may also be part of the agreement without carrying out any action aimed at achieving the common objective.

Purpose of the conspiracy agreement

The Organized Crime Convention makes an important addition to the general common-law concept of conspiracy by requiring that the purpose of the agreement between the conspirators is to obtain a financial or other material benefit. This element is reflective of the overall objective of the Convention and one of the main characteristics of organized crime, which is to achieve a financial or other material gain from criminal activity.

The most important elements of the crime of conspiracy are the act (actus reus) and the state of mind (mens rea) required. They are summarized in Table 2.1. It is important to note that there are differences among countries in how conspiracy is defined, but the significant elements of the crime are summarized here.

Table 2.1 Elements of conspiracy in the Organized Crime Convention
Organized Crime Convention Physical elements
(actus reus)
Mental elements
(mens rea)
Article 5, para. 1(a)(i) Agreeing with one or more other persons to commit a serious crime (action) The agreement was entered into intentionally. The agreement was made for a purpose related directly or indirectly to obtaining a financial or other material benefit
Source: United Nations Office on Drugs and Crime. (2012). Model Legislative Provisions against Organized Crime. Vienna: UNODC.

To summarize, according to the Organized Crime Convention, liability for conspiracy generally requires a voluntary agreement between two or more people, the parties do not have to be involved extensively with the conspiracy, and the object is to commit a serious crime. An overt act in furtherance of the conspiracy is required in many jurisdictions.

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