Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(5) (04 July 2006)

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URL: http://www.bailii.org/ew/other/EWLC/2006/300(5).html
Cite as: [2006] EWLC 300(5)

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PART 5

A SCHEME OF INCHOATE LIABILITY FOR ENCOURAGING OR ASSISTING THE COMMISSION OF OFFENCES

INTRODUCTION

In this Part and in Part 6

^[1]

THE STRUCTURE OF THE SCHEME PROPOSED IN THE CP

In the CP, the Commission provisionally proposed that there should be two inchoate offences to replace the common law inchoate offence of incitement and secondary liability.

^[2]

(1) encouraging crime,^[3] and

(2) assisting crime.^[4]

There were two reasons why the Commission distinguished the two offences in the way that it did. First, the Commission believed that "encouraging" and "assisting" were two separate activities.

^[5]

If D's conduct can truly be said to assist the commission of crime, and he is aware that that is so, then there are strong arguments for imposing legal inhibitions upon it, even though the giving of such assistance was not D's purpose. Where, however, D's conduct is not of assistance to P, but merely emboldens or fortifies P in committing a crime, it seems to extend the law too far to make D's conduct itself criminal, unless D intended it to have that effect.^[6]

THE GENERAL FEATURES OF THE INCHOATE SCHEME THAT WE ARE RECOMMENDING

The new offences

The scheme that we are recommending also comprises two core offences ("the new offences"). They are set out in clauses 1(1) and 2(1) of the draft Crime (Encouraging and Assisting) Bill ("the Bill") that is appended to this report. The offences are:

(1) encouraging or assisting the commission of a criminal act intending that the criminal act should be committed ("the clause 1 offence"), and

(2) encouraging or assisting the commission of a criminal act believing that the encouragement or assistance will encourage or assist the commission of the criminal act and believing that the criminal act will be committed ("the clause 2(1) offence"). ^[7]

We envisage that the new offences would usually be charged in relation to a substantive offence, for example encouraging or assisting murder or encouraging or assisting rape. However, the clause 1 offence, but not the clause 2(1) offence, could also be charged in relation to:

(1) the clause 1 or the clause 2(1) offence, for example D encourages or assists P to encourage or assist X to murder V; and

(2) the inchoate offences of conspiracy and attempt, for example D encourages or assists P1 and P2 to form a conspiracy to murder V.^[8]

The following examples illustrate the essential difference between the clause 1 offence and the clause 2(1) offence:

Example 5A

D believes that P is about to attack V who is D's worst enemy. D throws a brick to within P's reach in order to assist P in what D believes will be the attack on V. P makes no attempt to attack V.

Example 5B

P goes into D's hardware shop and chooses a large knife from the display. P tells D that he is going to use it to attack V. D knows P well and believes what P says. D nonetheless sells the knife to P, rationalising his action by telling himself that P is just another customer. In the event, P does not try to attack V.

In example 5A, D commits the clause 1 offence because D intended that P should assault V.^[9] By contrast, in example 5B, D commits the clause 2(1) offence because D, without intending that P should assault V, believes that P will do so.^[10]

The new offences would replace the common law offence of incitement

^[11]

^[12]

Potential overlap with secondary liability

The new offences can be committed whether or not the principal offence is committed.

^[13]

^[14]

Example 5C

D encourages P to set fire to the local tax office.

If P decides not to set fire to the tax office, D can only be guilty of the clause 1 offence. D would not be an accessory to arson because P had not even attempted to commit the offence. On the other hand, were P to set fire to the premises, D, as well as committing the clause 1 offence, would be an accessory to arson^[15] because it was D's intention that P should commit arson. The prosecution could choose to charge D with the clause 1 offence but we would expect that they would wish to charge D with arson.

By contrast, under our forthcoming proposals for reform of secondary liability, there is limited scope for overlap between secondary liability and the clause 2(1) offence because, subject to one exception,

^[16]

Example 5D

D, a shopkeeper, sells petrol to P believing that P will use it to make a petrol bomb with which to commit arson. D is indifferent as to what P does with the petrol. P, as D anticipated, makes a petrol bomb and uses it to set fire to the tax office.

D is guilty of the clause 2(1) offence but is not an accessory to and guilty of arson.

Unknown mode of participation

If the principal offence is committed, it may not be possible for the prosecution to prove whether an accused was the perpetrator of the offence or, instead, encouraged or assisted its commission. In order to ensure that D does not escape liability, we believe that there should be a similar rule to that which is integral to secondary liability.

^[17]

We recommend that If the prosecution can prove that D must either have perpetrated the clause 1 or the clause 2(1) offence, on the one hand, or encouraged or assisted its commission, on the other, D can be convicted of the clause 1 or the clause 2(1) offence.

^[18]

The implications of the new offences being inchoate offences

The new offences are inchoate in that D's liability is not dependent on P committing or attempting to commit the principal offence. Accordingly, D's liability can only be fixed by reference to the offence that D intended or believed that he or she was encouraging or assisting. Importantly, the same is also true if P (or another person) does commit an offence with D's encouragement or assistance. The following four sections illustrate the application of this principle.

D's liability is for encouraging or assisting an abstract and not a particular principal offence

5.13

D may not know the details of the prospective principal offence. Thus, D may provide P with a baseball bat believing that P will use it to rob V1. Instead, P uses it to rob V2. Alternatively, D may provide the baseball bat believing that P will use it to commit robbery but have no belief as to the identity of the victim. It matters not that D lacks knowledge or belief as to the details of the prospective principal offence. D is guilty of encouraging or assisting P to commit robbery rather than encouraging or assisting P to rob V.

The offence committed is not the offence that D believed would be committed

5.14

P may commit a different offence to that which D believed would be committed:

Example 5E

In return for payment, D provides P with a hunting knife believing that P is going to use it to commit robbery. Instead, P uses it to commit murder.

D is guilty of encouraging or assisting robbery. Had P been arrested before being able even to attempt to murder V, D would have been guilty of encouraging or assisting robbery because robbery was the offence that D believed P would commit with D's assistance. The nature and extent of D's liability should be and is unaffected by the fact that P commits an offence which is different from the offence which D believed P would commit. Conversely, had D believed that P would use the knife to commit murder, D would be guilty of encouraging or assisting murder even if, instead, P used the knife to commit robbery.

D's act of encouragement or assistance leads to the commission of multiple offences

5.15

In the context of secondary liability, a single act of encouragement or assistance leading to the commission of multiple offences gives rise, at least in theory, to a difficulty:

Example 5F

In return for payment, D provides P with a jemmy believing that P will use it to commit a burglary at V's premises. P uses the jemmy to burgle not only V's premises but also the premises of X, Y and Z.

Arguably, under the current law D is an accessory to and guilty of all four burglaries. In Bainbridge^[19] the Court of Criminal Appeal held that, in order to convict D of an offence as an accessory, it was sufficient to prove that the offence committed by P was of the same type as that which D believed P would commit. In example 5F, all four offences committed by P are the type of offence that D believed P would commit.

The issue does not arise in the context of the new offences that we are recommending. Again, this reflects the nature of inchoate liability. In example 5F, D would be liable for encouraging or assisting burglary even if P did not commit any of the burglaries. Conversely, the fact that P used the jemmy to commit four burglaries should not alter the nature and extent of D's liability. D is guilty of one offence of encouraging or assisting burglary because D believed that only one offence would be committed.

5.17

In example 5F, D believed that P would use the jemmy to commit one burglary. Instead, if D believed that P would use the jemmy to commit all four burglaries, D could be charged with four offences of encouraging or assisting burglary irrespective of how many of them P committed.

^[20]

A person other than P commits the offence that D has encouraged or assisted

Under our scheme, there is no requirement that if the offence that D has encouraged or assisted is committed, it must be committed by P:

Example 5G

D, in return for payment, provides P with cutting equipment believing that P will use it to commit a burglary. P is involved in a serious motor accident and, consequently, P's brother, X, uses the equipment to commit the burglary.

D is guilty of encouraging or assisting burglary. D would be guilty of the offence if no burglary was committed and it follows that if the offence is committed, it should be irrelevant who commits it.

DEFINING THE NEW OFFENCES

Introduction

5.19

Inchoate liability has the potential to condemn D even though no harm actually occurs and there was never any prospect that it would occur. Where the focus of potential criminal liability is conduct that might have led to harm but which cannot be shown to have caused or contributed to any actual harm, the state of mind required to ground liability assumes particular significance. Professor Ashworth has observed:

There is, however, some evidence of a general proposition that the inchoate offences should be subject to more restrictive principles than other crimes; thus intention and knowledge are generally required for the inchoate offence and recklessness is insufficient.^[21]

With these cautionary words in mind, we consider what should be the conduct and fault elements of each of the new offences.

The conduct element

Introduction

Unlike the offences that the Commission proposed in the CP, the new offences that we are recommending share a common conduct element. There are two reasons. First, we no longer believe that encouraging and assisting are necessarily separate activities. We think that the concepts can overlap and that whether conduct is to be described as encouraging or assisting can sometimes involve drawing fine distinctions. P may be as likely to commit an offence because of the encouragement he or she derives from having the backing of D than as a result of the assistance that evidences that backing. There will be cases where the prosecution may want to put its case on the basis that D has done an act that was capable of either encouraging or of assisting, or both. We believe that it will be easier for the prosecution to do so if each offence can be committed by doing an act capable of "encouraging or assisting".

5.21

Secondly, even if encouraging and assisting were separate activities, we no longer believe that the fault element for encouraging crime should be narrower than the fault element for assisting crime.

^[22]

We are recommending that the conduct element of both the clause 1 offence and the clause 2(1) offence should consist of "do[ing] an act capable of encouraging or assisting the doing of a criminal act".

^[23]

Criminal act

A criminal offence can consist of one or more of three external elements: conduct, the circumstances in which the conduct takes place and the consequences of the conduct.

^[24]

^[25]

Under the scheme that we recommend, "criminal act" refers to an act that falls within the definition of the conduct element of the principal offence.

^[26]

^[27]

In most cases, the requirement that D's conduct must be capable of encouraging or assisting the conduct element of the principal offence will not cause any problems. However, occasionally, D's conduct will not be capable of encouraging or assisting the conduct element:

Example 5H

D and P have applied for a job that requires the holder to possess a valid driving licence. They attend a party. D surreptitiously "laces" P's non-alcoholic drinks with alcohol knowing that P intends to drive home. D's intention is that P should commit the offence of driving with excess alcohol and be disqualified from holding or obtaining a driving licence.^[28] An off-duty policeman at the party notices what D is doing and advises P not to drive. P goes home in a taxi.

The conduct element of the offence of driving in excess of the prescribed limit is driving a motor vehicle. D's act of "lacing" D's drinks is not an act capable of encouraging or assisting P to drive. It is an act, however, that is capable of bringing about the circumstance element of the offence, namely, being in excess of the prescribed limit.

The essence of the wrongdoing targeted by the offence of driving with excess alcohol is not the driving but driving in excess of the prescribed limit. In example 5H, it is that circumstance that D is intending to bring about. D's conduct is highly culpable and, in principle, he or she ought to be criminally liable. Accordingly, on what we anticipate will be rare occasions, "criminal act" will need to be interpreted to mean a composite act comprising a combination of conduct and circumstance elements.

"Capable of" encouraging or assisting

5.27

Inchoate liability criminalises culpable conduct not because it results in actual harm but because it enhances the prospect of actual harm occurring. It threatens to bring about harm. Consistent with the rationale of inchoate liability, D's conduct need not in fact encourage or assist the doing of a criminal act. It is for this reason that the Bill merely requires that D does an act "capable of" encouraging or assisting the doing of a criminal act.

5.28

The question of whether D's conduct was capable of encouraging or assisting the doing of a criminal act is one of fact for juries and magistrates to determine. We do not believe that it is either necessary or desirable to construct a sub-structure of detailed rules for determining the question. We envisage that in most cases the question will not arise and that, when it does, juries or magistrates will have little difficulty in deciding the question:

Example 5J

D, having heard that P intends to commit a burglary, sends P a package believing that it contains D's notes on how to break into buildings. In fact, the package contains his mother's cookery recipes. P has no intention of committing burglary and reports the matter to the police.

The recipe notes were clearly not capable of encouraging or assisting the criminal act of entering a building as a trespasser and, therefore, D cannot be convicted of either the clause 1 or the clause 2(1) offence.^[29]

However, one area of potential difficulty is whether an act can "be capable" of encouraging or assisting the doing of a criminal act if nobody is aware of the act. A person can in fact be assisted without being aware of the act of assistance.

^[30]

Example 5K

D and V live in an area plagued by burglaries. V goes on holiday. D hears a rumour that unidentified persons are planning to burgle V's premises. D, who hates V, leaves a ladder by the side of V's premises intending that it should assist a burglary of V's premises. W sees P placing the ladder and reports the matter to the police.

The criminal act of burglary is entering a property as a trespasser. At the moment of placing the ladder, D has done an act "capable of" assisting the doing of the criminal act.

By contrast, a person cannot in fact be encouraged unless he or she is aware of the encouragement. However, we do not believe that it follows that, because actual encouragement requires an awareness of the encouragement, an act cannot be "capable of" encouraging unless and until it comes to someone's attention:

Example 5L

D posts a letter to P urging P to commit a serious assault on V. The letter is destroyed in a fire at the post office. Subsequently, D writes a letter to X in which he tells X of the contents of the letter to P. X informs the police.

It would be a question of fact for the jury whether D had done an act capable of encouraging or assisting the commission of murder or, instead, had merely attempted to do an act capable of encouraging or assisting P to commit the offence.^[31]

We recognise that in some cases there may be an uncertain boundary between, on the one hand, doing an act capable of encouraging or assisting and, on the other, doing an act that is more than merely preparatory to doing so, that is attempting to do so. However, taking into account that the maximum sentence for each would be the same, we think that this is preferable to constructing an edifice of detailed and complicated rules to distinguish a completed act from an attempt, particularly as the issue will arise infrequently.

Encouraging

ENCOURAGING RATHER THAN INCITING

5.32

In the commentary on the draft Criminal Code Bill,

^[32]

^[33]

However, if, as we believe, it ought to be possible to commit the new offences without proof of P being in fact encouraged (or assisted),

^[34]

We prefer encouraging to inciting because, as the Commission pointed out in the CP, incite "has somewhat instigatory connotations".

^[35]

^[36]

We do not think that the choice of encouraging will lead to uncertainty. In Marlow

^[37]

^[38]

THE MEANING OF ENCOURAGING

There are two issues. One is identifying what conduct ought to be capable of amounting to encouraging. The other is whether it is necessary or desirable to provide a statutory definition of encouraging.

5.37

We believe that encouraging should have the same broad meaning that inciting has acquired at common law.

If encouragement should include conduct that emboldens or fortifies a person who has already decided to commit an offence, we do not believe that it should matter that P initiated the dialogue that led to D's encouragement. In Goldman

^[43]

^[44]

We sympathise with the criticism to the extent that Goldman may have extended the natural meaning of incitement. It is for this reason that we prefer encouraging to inciting because D can clearly encourage P even though P has already made up his or her mind to commit an offence.

5.40

However, we disagree with the other aspect of the criticism. The law should seek to deter not only the possession of controlled drugs (and child pornography) but also its supply. Without purchasers there would be no suppliers of controlled drugs or child pornography. The purchaser, by emboldening and fortifying the supplier, is contributing to the evils and misery caused by the supply and consumption of controlled drugs and child pornography. As a matter of policy, it is desirable and necessary that consumers of controlled drugs and child pornography can be punished not only for possessing such merchandise but also for encouraging others to supply it.

5.41

Further, there would be no disparity between the liability of the supplier, P, and the liability of the purchaser, D. By responding positively to the supplier's offer to supply drugs, D is liable for encouraging or assisting P to commit the offence of supplying controlled drugs.

^[45]

^[46]

It is clear that at common law incitement can consist of threats and pressure.

^[47]

^[48]

^[49]

We recommend that the doing of an act capable of encouraging or assisting the doing of a criminal act should include doing so by threatening or pressurising another person to do a criminal act.

5.44

The draft Criminal Code did not expand on the meaning of "incite". Likewise, we believe that it is unnecessary to expand on the meaning of encourage. It is a word in common usage and, if anything, is more familiar to juries and magistrates than "incite".

5.45

We are strengthened in our view by the fact that the meaning of incite has rarely troubled the courts. It is true that in the CP the Commission suggested

^[50]

^[51]

^[52]

Assisting^[53]

THE MEANING OF ASSISTING

Unlike "encouraging", in the CP the Commission had no common law inchoate offence to draw upon when considering the meaning of "assisting". It said that assisting in its normal sense "extends to any conduct on the part of D that, as a matter of fact, makes it easier for P to commit the principal offence".

ADVICE AS ASSISTANCE

Despite the criticism of A-G v Able, in the CP the Commission proposed that providing advice should be conduct capable of amounting to assisting. It emphasised

^[61]

No respondent to the CP disagreed with the proposal that providing advice should be conduct that is capable of assisting. We continue to believe that it should be so regarded.

ACTS OF INSUBSTANTIAL ASSISTANCE

5.50

In the CP, the Commission said that if it was D's purpose to facilitate the commission of an offence, D should be liable whether or not the assistance was substantial.

^[62]

^[63]

The majority of respondents thought that it should be irrelevant whether the assistance was substantial. We agree. Inchoate liability is not dependent on the commission of a substantive offence. D's liability turns not on what P does but on what D intends or believes will be the impact of his or her conduct. We think that to introduce such a requirement would lead to uncertainty and difficulty. It would require juries and magistrates to "seek to assess how extensive a contribution the assistance would have been (or was) in bringing about the principal offence".

^[64]

^[65]

Must D's encouragement or assistance be directed at a particular person or persons?

The issue is most likely to arise in relation to encouragement. There should be no requirement that D has any particular individual(s) or group(s) as the target of his or her encouragement. If D posts a message on a web-site urging the assassination of all immigrants, he or she ought to be liable regardless of whether the encouragement is aimed at a particular individual, a group of individuals or the world at large.

Omissions as acts capable of encouraging or assisting

5.53

Determining the circumstances in which a person should incur criminal liability for an omission involves difficult policy issues. In the context of secondary liability, Professor Ashworth says the key issue is simple to state: "can a person be convicted as an accomplice merely for standing by and doing nothing when an offence is being committed"?

^[66]

The general rule at common law is that a person incurs no criminal liability for standing by and doing nothing. The reluctance of the law to impose criminal liability for omissions is attributable to a number of reasons of which perhaps the most significant is that:

The prohibition of omissions is far more intrusive upon the individuals' autonomy and freedom than is the prohibition of acts, which is why the systematic imposition of (criminal or civil) liability for failures to act is to be resisted.^[67]

However, the general rule of common law is subject to an important exception. Provided an offence is capable of being committed by inaction, a person may commit the offence if he or she is under a duty to act but refrains from doing so.

^[68]

(1) the extent to which and the circumstances in which D can incur secondary liability by virtue of mere presence when P commits an offence;

(2) whether D can incur secondary liability by failing to take steps to discharge a duty;^[69] and

(3) whether D can incur secondary liability by failing to exercise an entitlement to prevent or control the actions of P.^[70]

The law in relation to (1) is reasonably clear:

Example 5M

D is on a bus when a passenger P starts to assault another passenger V. D remains in his seat and continues to read his newspaper.

D, provided that he takes no positive action to encourage or assist P, is not an accessory to the assault because he under no legal obligation to act in order to prevent P assaulting V.

Example 5N

D comes across P who is about to rape V. V pleads for D to help her but D passes by. P rapes V.

Again, D incurs no criminal liability for declining to go to V's aid. By contrast, if D takes the positive step of stopping in order to watch P rape V, a jury is entitled, but not bound, to find that D intended to encourage P and that D in fact encouraged P.^[71]

The law in relation to (2) is also reasonably clear. If D is under a duty to act, then D can incur secondary liability for an offence committed by P as a result of D failing to take steps to discharge the duty, provided that P is thereby encouraged or assisted to commit the offence.

5.58

The law in relation to (3) is far less clear. There have been specific instances where the courts have held D to be secondarily liable for failing to control the actions of others.

^[72]

^[73]

THE PROPOSALS IN THE CP

In the CP, the Commission distinguished encouraging, on the one hand, and assisting, on the other. It provisionally concluded that it ought not to be possible to assist crime by failing to discharge a duty or by failing to exercise an entitlement right of authority to prevent or control the actions of P.

^[74]

By contrast, the Commission provisionally concluded that the proposed inchoate offence of encouraging crime could be committed by inaction.

^[75]

RESPONSES TO THE PROPOSALS IN THE CP

The majority of respondents who addressed this issue did not accept the proposition that failing to discharge a duty to prevent or control P's actions should never be regarded as "assisting".

CONCLUSIONS AND RECOMMENDATIONS

Failure to discharge a duty

5.62

In principle, we believe that the new offences should be capable of being committed by virtue of inaction on the part of D that consists of refraining from taking steps to discharge a duty. Confining liability to positive acts would result in D incurring no criminal liability in situations where he or she ought to, for example D, a disgruntled security guard, who fails to turn on a burglar alarm with the intention of assisting P to burgle the premises of D's employer.

5.63

It would be for the trial judge to rule whether D was under a duty. The question whether D had failed to discharge his or her duty would be one of fact. However, we would not wish to see D being criminally liable for any failure to take steps to discharge the duty. We believe that such a strict rule could operate harshly and lead to injustice. Instead, the test should be whether D failed to take reasonable steps to discharge the duty.

^[76]

Example 5P

D lives in her own property with her two children P aged 16 and V aged 15. P has never been violent towards V but on the night in question suddenly starts to assault V. P is of muscular build while D is diminutive in stature. D goes to the phone to call the police but P tears the phone from her and hits her with it. P continues to assault V.^[77]

D has a duty to protect V. It would be for the prosecution to prove that she had failed to take reasonable steps to discharge that duty.

In cases where it was D's intention that the principal offence should be committed, it is difficult to envisage that D might nevertheless have taken reasonable steps to discharge his or her duty. However, we think that an exceptional case might arise where D, despite intending the commission of the principal offence, might legitimately claim that he or she had taken reasonable steps.

5.65

We recommend that doing an act capable of encouraging or assisting a person to do a criminal act should include doing so by failing to take reasonable steps to discharge a duty.

Failure to assist a constable to prevent a breach of the peace

5.66

At common law every citizen is under a duty to respond to a constable's request for assistance to prevent a breach of the peace.

^[78]

We recommend that a person failing to respond to a constable's request for assistance in preventing a breach of the peace should not be regarded as the doing of an act capable of encouraging or assisting a person to do a criminal act.

Failure to exercise an entitlement to prevent or control the actions of P

5.68

We believe that it would be an over-extension of the criminal law if D could be inchoately liable on the basis that he or she had refrained from exercising an entitlement to prevent or control P's actions. Again, we emphasise that the new offences are inchoate offences capable of being committed even if the principal offence is not committed.

5.69

Every citizen is entitled to use reasonable force to control the actions of P in order to prevent P committing an offence.

^[79]

The entitlement that everyone has to control the actions of others in order to prevent the commission of an offence is an illustration of a general power. In addition, D may have a specific entitlement to control P's activities regardless of whether P is committing or is about to commit an offence, for example the owner of land is entitled to control the actions of others on the land:

Example 5Q

D, who has a telephone and a guard dog, is awoken by a noise coming from his garden. Opening the window, D asks P what he is doing. P replies "go back to bed". D, although believing that P is about to commit an assault on V, goes back to bed. P, encouraged by D's non-intervention, proceeds to assault V.

It might be thought that D's conduct is callous and displays a lack of empathy for V. In itself, this is not to justify the imposition of criminal liability. In this kind of example, if D could be made criminally liable for his failure to intervene, it would be a case of imposing liability because D was not being a good samaritan or "busy body". That is potentially far too harsh a consequence in such cases of non-intervention.^[80]

The fault element

Introduction

We now consider what the fault element of the new offences should be. In addressing this issue, we emphasise that those who commit inchoate offences are punished because their conduct enhances the prospect of a principal offence being committed. Whether the principal offence is subsequently committed is irrelevant. Further, there is no correlation between the likelihood of the offence being committed and the strength of D's conviction that it will be committed:

Example 5R

D lends his car to P, knowing that P is disqualified from driving. D is sure that P will drive the car. However, it was always P's intention that X, P's wife who is not disqualified, should drive the car. In the event, X drives D's car.

On one view, it would be unduly intrusive and wasteful of resources for the criminal law to intervene where P had no intention of committing an offence. On the other view, the fact that P has not committed the offence of driving while disqualified, and never intended to, ought to make no difference to whether D is criminally liable. This is because when lending the car, D believed that P would use the car and, by doing so, would commit an offence. Assuming that there is merit in the latter view, does it follow that D should also be criminally liable if, for example, he or she merely suspected that P might use the car to commit an offence?

5.72

We have explained that the conduct element of the new offences is doing an act capable of encouraging or assisting the doing of a criminal act and that, in most cases, "criminal act" will have a restricted meaning, namely the conduct element of the principal offence.

^[81]

D's fault in relation to the commission of the criminal act

The Supreme Court of Canada has recently considered this issue in the context of section 464(a) of the Canadian Criminal Code. The provision makes it an offence to "counsel another person to commit an indictable offence". The majority held that D must either intend that the principal offence be committed or knowingly counsel its commission while aware of the unjustified risk that it was likely to be committed. According to the majority, D can intend that the principal offence be committed even if the motive for counselling P to commit the offence is to make a financial profit.

5.74

The view of the minority was that nothing less than an intention to persuade P to commit the offence should suffice. The minority felt that there was no distinction between intending to persuade P to commit the offence and intending that it should be committed. Charron J, delivering the reasons of the minority, said, "It is logical to infer that the counsellor who intends to persuade the person counselled to commit an offence intends that the offence be committed."

^[82]

THE PROPOSALS IN THE CP

In the CP, the Commission provisionally proposed that D should incur liability for the offence of encouraging crime only if it was D's purpose

^[83]

^[84]

^[85]

With regard to the offence of assisting crime, the Commission invited comment on whether the offence should be restricted to cases where it was D's purpose that the principal offence should be committed or whether the basis of liability should be broadened and, if so, how.

^[86]

The Commission said that if the fault element of assisting crime were to be broader than purpose that the principal offence be committed, the test would need to be defined with care.

^[87]

^[88]

We consider that the law would be too broad if it were formulated in terms of … suspicion as to the principal's intentions. That consideration is particularly relevant to supply of assistance "in the ordinary course of business": for instance, the sale of a screwdriver or the provision of a taxi ride to a person known or thought to be a professional burglar. In such a case, D may well legitimately suspect that P will use the assistance given to him in one of his burglaries; but it seems too restrictive of ordinary activities to make supply criminal on the basis simply of suspicion of the use to which the supply is put.^[89]

RESPONSES TO THE PROPOSALS IN THE CP

Only three respondents favoured restricting liability for assisting crime to cases where it was D's purpose that the principal offence be committed. The other respondents who addressed the issue favoured a test of knowledge or belief on D's part that another person is doing or will do acts that involve the commission of the principal offence.

IDENTIFYING THE APPROPRIATE FAULT ELEMENT

5.79

We no longer believe that there should be a different fault element for encouraging, on the one hand, and assisting, on the other. As we indicated above,

^[90]

In addition, we no longer believe that liability for encouraging should be restricted to cases where it was D's purpose that the principal offence be committed. In the CP, the Commission thought that a narrow purpose test was necessary in order to ensure that D would not be liable for "the unlooked-for outcome" of comments on matters of public interest.

^[91]

Example 5RR

D publishes a leaflet that contains the name and address of V, a convicted paedophile. D's intention is to encourage V to leave the neighbourhood. D also believes that the leaflet will encourage someone to assault V.

We see no reason why, in example 5RR, D should avoid liability merely because D's intention was not that V should be attacked but that V should be frightened into leaving the neighbourhood.

We recognise that extending liability beyond cases where it is D's intention that the conduct element of the principal offence should be committed, raises the spectre of D incurring criminal liability for ostensibly lawful acts. A protestor may believe that his or her lawful protest will encourage the commission of retaliatory criminal conduct by others. Authors, journalists and publishers may believe that material which highlights what some would consider to be cruel or barbaric practices will encourage others to commit offences against those carrying out the practices:

Example 5S

D publishes an article that identifies a laboratory that uses animals in scientific experiments. D's intention is to persuade the laboratory to cease its activities. D believes that the article will encourage others to cause damage to the laboratory.

Example 5S

D is part of a television crew reporting at the scene of a riot. D's presence encourages the rioters to intensify their riotous behaviour. D is fully aware of the effect that the presence of the crew is having on the rioters.

We would not wish defendants in the position of D in examples 5S and 5SS to be convicted simply because they believe that their conduct will encourage others to commit offences. However, we believe that the answer is not by way of the inflexible and narrow test of liability proposed in the CP but by recourse to more context sensitive mechanisms.

5.82

Activities such as reporting, writing, publishing and protesting engage Articles 9, 10 and 11 of the European Convention on Human Rights and Fundamental Freedoms. The rights contained in those Articles are not absolute and may be restricted to the extent necessary for, amongst other things, the prevention of crime and disorder. We envisage that some prosecutions for the new offences will engage the relevant Articles.

5.83

The Bill accompanying this report does not contain any provisions in relation to Convention issues. This is because the Human Rights Act 1998 already brings the Convention rights into play. Since the rights under Articles 9, 10 and 11 are not absolute, cases will turn on their individual facts. The issue will be whether charging D with encouraging or assisting the commission of an offence engages D's rights under Articles 9, 10 and 11 and, if so, whether, on the facts, convicting D would be a disproportionate response in all the circumstances of the case.

5.84

In addition, in Part 6 we explain that, in cases where D's potential liability is based not on an intention but on a belief that a criminal act will be done, there should be a defence of acting reasonably in the circumstances.

^[92]

As with encouraging, we do not believe that liability for assisting should be restricted to cases where it was D's intention that the criminal act be committed. If D's liability were so limited, it would necessarily exclude cases where D believes that a criminal act will be done with his or her assistance. It would mean that those who, purely for financial gain, supply articles, services or information believing that they will be used to commit a criminal act would incur no criminal liability. As the Commission stated in the CP:

It is far from obvious that that outcome is correct, either from the point of view of justice or from the point of view of social protection. It might well be thought that those who willingly and knowingly assist in crime should be liable to punishment, not least as some means of impeding the commission of crimes that they would otherwise assist in; and that they act for profit should hardly be a reason for excusing them.^[93]

However, as we noted above, inchoate liability for encouraging or assisting the commission of an offence has the potential to cast a very wide net of criminal liability, not least because liability is not dependent on the commission of any offence. Accordingly, there is a need for caution in determining the appropriate fault element. Referring to inchoate offences, Professor Ashworth has observed:

… as the form of criminal liability moves further away from the infliction of harm, so the grounds of liability should become more narrow.^[94]

If the fault element for encouraging or assisting crime is too broadly defined, consisting of no more than belief that a criminal act might be committed, there is a danger of deterring and unduly restricting ordinary trading, employment and social activities:

Example 5T

D owns a chemist's shop. P comes in and buys some lubricant jelly. D's understanding from (mistaken) local gossip is that P is a paedophile. D believes that P might use the jelly to commit an indecent assault on a child. D shares his belief with the next customer who reports what D has done to the police. They investigate and discover that P is a paediatrician. Local gossip has confused paedophile and paediatrician.

We do not believe that traders, such as D, ought to be liable merely because they believe that in selling their products they might be assisting the commission of a criminal act, particularly when, as in example 5T, there was never any possibility that the criminal act would be committed.

CONCLUSIONS AND RECOMMENDATIONS

5.88

We conclude, therefore, that to confine inchoate liability for encouraging or assisting to cases where it was D's intention that a criminal act should be committed would be unduly restrictive. Equally, it would be inappropriate to extend liability to include cases where D's belief was no more than that a criminal act might be committed.

5.89

Accordingly, we recommend that in relation to the criminal act of the principal offence, D:

(1) in order to be guilty of the clause 1 offence, must intend^[95] that the criminal act should be done or that a person be encouraged or assisted to do it;^[96]

(2) in order to be guilty of the clause 2(1) offence, D, although not having to intend that the criminal act should be done, must believe that the criminal act will be done^[97] and that his or her own act will encourage or assist the doing of the criminal act.^[98]

D's state of mind where his or her conduct is capable of encouraging or assisting more than one criminal act^[99]

In Part 4,

^[100]

The danger that they were referring to is apparent in cases where D's conduct has the capacity to provide P with encouragement or assistance in relation to a range of possible criminal acts:

Example 5TT

D provides P with V's name and address. D correctly believes that P, using the information, will murder V or commit robbery against V or burgle V's premises. However, D is not sure which of those offences P will commit. P is arrested before being able to commit any of the offences.

As D believes that P will commit at least one of three criminal acts but is unsure which one(s) it will be, P's state of mind in relation to each criminal act within the range is something less than a belief that it will be committed.

5.92

^[101]

(1) if P does not commit murder or robbery, P will commit burglary;

(2) if P does not commit murder or burglary, P will commit robbery; and

(3) if P does not commit burglary or robbery, P will commit murder.

We believe that our approach is a principled one. If D does an act capable of encouraging or assisting P to commit criminal acts x, y and z, believing that P will commit at least one of them, D has no cause for complaint if he or she is prosecuted for encouraging or assisting one of those criminal acts.

5.94

We recommend that, if D does an act capable of encouraging or assisting the doing of one or more of a number of criminal acts, D must believe:

(1) that at least one of those acts will be done but without having any belief as to which it will be;^[102] and

(2) that his or her conduct will encourage or assist the doing of at least one of those acts.^[103]

However, since D's state of mind in relation to each criminal act is something less than a belief that it will be committed, we think that it ought to be possible to prosecute D for only one offence. It will be for the Crown Prosecution Service to decide the criminal act on which to base the prosecution of D. They may be minded to choose the one which they believe provides the best chance of securing a conviction, even if it is not the most serious.

5.96

We recommend that if D does an act capable of encouraging or assisting the doing of one or more of a number of criminal acts and D believes:

(1) that at least one of a number of criminal acts will be done but has no belief as to which it will be; and

(2) that his or her act will encourage or assist the doing of at least one of those criminal acts

D may be prosecuted for only one offence.^[104]

In example 5TT, D believed that P would commit a criminal act but could not identify which one it would be. By contrast:

Example 5U

D wants to intimidate V who owes D money. D says to his henchman, P, "Go round to V's house and smash the place up and when you have done that either steal something valuable or rough V up a bit. Make sure he gets the message". Before he can go to V's house, the police arrest P. P tells the police what D told him to do.

In this example, D believes that P will commit a criminal act, smashing up V's property and, in addition, believes that P will commit another criminal act but does not know whether it will be appropriating property or physically attacking V.

5.98

We believe that it ought to be possible to prosecute D both in relation to the criminal act of smashing up V's furniture and either for the criminal act of appropriating property or for the criminal act of physically attacking V.

^[105]

A more problematic situation is where D believes that P will commit a particular criminal act (x) and also might commit an additional criminal act (y):

Example 5UU

D is annoyed by the alarm on V's car going off. D gives P a hammer and tells P to go and silence the vehicle. D, realising that P might also use the hammer to assault V, tells P not to approach the car if V is there. An off-duty policeman hears the conversation.

We think that to permit the prosecution of D for an inchoate offence of encouraging or assisting assault when D's state of mind is a mere belief that P might assault V would represent a significant and unwarranted departure from our general position. It would constitute an over-extension of criminal liability. It would be different if, similar to example 5U, D believed that, in addition to committing criminal damage, P will either assault V or rob V but is unsure which offence P will commit.

D's state of mind as to the mens rea of P in doing the criminal act

5.100

D ought not to incur liability merely because D intends or believes that P should or will commit an "act" that is criminal. The "act" that is criminal in theft is the appropriation of property. It would be absurd if D could be criminally liable for doing nothing more than encouraging P to do that act:

Example 5V

At P's request, D keeps watch outside a house belonging to V. P tells D that he is going to enter the house to retrieve goods which P says belong to him. In fact, the goods belong to V. It was P's intention to take them and sell them to fund his drug habit. P abandons the project when, on arriving at the house, it appears that V is at home.

D should not be liable for encouraging or assisting burglary or theft even though it was P's intention, unknown to D, to sell the goods.

5.101

However, conversely, in some cases it is D, not P, who would satisfy the fault element of the principal offence were the criminal act to be done:

Example 5VV

D, at P's request, keeps watch on V's house. D believes that P is going to steal property from the house. In fact, P intends to take property that he believes belongs to him. Before P can even attempt to enter the house, V returns. P abandons the enterprise.

Example 5X

D encourages P, aged 8, to punch V.

Example 5XX

D encourages P to steal some books from the library and says that, if P does not do so, D will inflict serious harm on P's child.

In example 5VV, were P to enter V's house and take the goods, P would not commit burglary ^[106] because he honestly believed that he was the owner of the goods.^[107] In example 5X, P is under the age of criminal responsibility.^[108] In example 5XX, P will be able to plead duress as a complete defence.^[109] However, in each example, D has encouraged or assisted the commission of a criminal act which, were he to do it, he would do so with the state of mind to be convicted of the principal offence.

In Part 3,

^[110]

We do not believe D ought to be exonerated merely because it would not be possible to convict P of the principal offence were he or she to do the criminal act. Instead, the focus should be on D's state of mind. In principle, it ought to be possible to convict D if D's state of mind is such that, were he or she to do the criminal act, he or she would do it with the fault required for conviction of the principal offence.

5.104

In some cases, D will be incapable of doing the criminal act, for example a woman cannot do the criminal act of rape – penetration "with the penis".

^[111]

^[112]

^[113]

We recommend that, in order for D to be convicted of the clause 1 or a clause 2 offence:

(1) D must believe that, were another person to do the criminal act, that person would do it with the fault required for conviction of the principal offence;^[114] or

(2) D's state of mind must be such that, were he or she to do the criminal act, he or she would do it with that fault.^[115] D is to be assumed to be able to do the criminal act in question.^[116]

The circumstance and consequence elements, if any, of the principal offence

In the previous section, we said that, in order to be liable, D must have one of two states of mind. D must either believe that were another person to do the criminal act, that person would do it with the fault required for conviction of the principal offence or D's own state of mind is such that, were he to do it, he would do it with that fault. However, some offences can be committed without the principal offender having to be at fault in relation to the consequence or circumstance element. In this section, we consider D's liability for encouraging or assisting the commission of such offences.

CONSEQUENCES

The correspondence principle

5.107

In relation to principal offenders, Ashworth and Campbell have highlighted the importance of what they refer to as the correspondence principle:

If the offence is defined in terms of certain consequences and certain circumstances, the mental element ought to correspond with that by referring to those consequences or circumstances. If a mental element as to a lesser consequence were acceptable, this would amount to constructive criminal liability.^[117]

The correspondence principle is not in fact an accurate descriptive generalisation of offences. This is because many offences that have a consequence element do not require that a principal offender be at fault in relation to the defined consequence. The law of offences against the person is replete with examples. Section 20 of the Offences against the Person Act 1861 makes it an offence to maliciously wound or to inflict grievous bodily harm. However, the offence can be committed if the accused merely foresaw that his or her conduct might result in some physical harm.

^[118]

^[119]

CIRCUMSTANCES

Strict Liability

A principal offender can also be guilty of some offences that have a circumstance element without being at fault in relation to the circumstance. The circumstance element of the offence of driving while disqualified

^[120]

^[121]

^[122]

IMPLICATIONS FOR THE NEW OFFENCES THAT WE ARE RECOMMENDING

It might be thought that if the principal offence that D is encouraging or assisting is a constructive or strict liability offence, D's fault should merely have to mirror that of the principal offender. However, it has to be remembered that D's liability is inchoate. D is liable not for committing a principal offence but for encouraging or assisting the commission of a principal offence which in fact may never be committed:

Example 5Y

D asks P to drive D's wife, who is in labour, to the local hospital. P says that he is too busy, However, D offers to pay P £100 and P agrees to do so. P is unaware that the previous day, a court had disqualified him from holding or obtaining a driving licence. Likewise, D is unaware that P has been disqualified. Just as P is about to leave to drive D's wife to the hospital, an ambulance arrives and takes D's wife to hospital.

If P had driven D's wife to hospital, he, despite being unaware that he was disqualified, would have committed the offence of driving while disqualified because it is a strict liability offence.

5.111

We believe that the law would be too severe if, in example 5Y, D could be convicted of encouraging or assisting the offence of driving while disqualified. We acknowledge that it might be thought that this treats D more favourably than the prospective principal offender, P. However, as a general rule, P is in a better position to appreciate the nature of the risk that he is taking in committing the conduct element.

^[123]

Accordingly, we believe that for all offences that include a circumstance or consequence element, or both, D must be at fault in relation to the consequence or circumstance even if the offence is a constructive or strict liability offence. However, to say that D must be at fault in relation to those elements leaves unanswered the question: what is meant by "fault"?

THE MEANING OF FAULT IN RELATION TO CIRCUMSTANCES AND CONSEQUENCES

Substantive offences

5.113

The criminal law recognises numerous fault elements. They include intention, recklessness, maliciousness, negligence, knowledge, belief and suspicion. Different principal offences have different fault elements. Most offences require that the principal offender must deliberately, as opposed to inadvertently, commit the proscribed conduct. However, there is a great deal of variation when it comes to the circumstance and consequence elements. In order to be convicted of some offences, the principal offender must intend to bring about the proscribed consequence.

Inchoate offences

Until comparatively recently, the inchoate offences of attempt, conspiracy and incitement have required a high degree of fault on the part of an accused in relation to all the elements of the principal offence. If D and P conspire to commit a principal offence that has a circumstance element, they must each "intend or know that that … circumstance shall or will exist at the time when the conduct constituting the principal offence is to take place".

^[128]

^[129]

By contrast, in the context of attempt, the courts have diluted the requisite fault element. In Khan

^[130]

Attorney-General's Reference (No 3 of 1992)

^[131]

Whatever the merits of the current law in relation to conspiracy and attempt, we believe that there are important differences between attempt and conspiracy, on the one hand, and encouraging or assisting crime, on the other. When D1 and D2 conspire to commit an offence, they agree on a joint criminal enterprise. Together, they engage in conduct that is, as in the case of an attempt to commit a crime, designed to lead eventually to the commission of an offence. By way of contrast, in the case of encouraging or assisting crime, D's own conduct relates to the separate conduct of another person who is to commit the offence. That conduct is not agreed upon and does not necessarily involve D's future participation.

5.117

Therefore, there is a sense in which liability for encouraging or assisting crime is at least "twice removed" from the commission of the crime itself. It is inchoate liability in that the principal offence need not be committed but, by way of contrast with conspiracy and attempt, it also necessarily relates to the separate conduct of another person. The fact that offences of encouraging or assisting crime are "twice removed" from the commission of the principal offence is what makes an uncompromisingly narrow fault element essential.

CONCLUSIONS AND RECOMMENDATIONS

5.118

We recommend that if, in addition to a criminal act, a circumstance element or a consequence element, or both, must be proved for conviction of the principal offence, D, in order to be convicted of the clause 1 or a clause 2 offence:

(1) must intend that the criminal act be done in those circumstances or with those consequences;^[132] or

(2) must believe that, were the criminal act to be done, it would be done in those circumstances or with those consequences.^[133]

The following example illustrates how the recommendations would apply:

Example 5YY

In return for payment, D lends P a baseball bat believing that P is going to use it to inflict minor bodily harm on V. P uses the bat to attack V and intentionally kills V.

D is guilty of encouraging or assisting the commission of assault occasion actual bodily harm.^[134] D is not guilty of encouraging or assisting murder because D did not believe that the criminal act of hitting V with the bat would result in the death of V.

If, in example 5YY, D believed that the criminal act would result in serious but not lethal harm to V, D would not be guilty of encouraging or assisting murder. Instead, D would be guilty either of encouraging or assisting the offence of causing grievous bodily harm with intent

^[135]

^[136]

It is important to note that, although in order to be convicted of the clause 1 offence, D must intend that the criminal act be done, D does not have to intend that it be done in the circumstances or with the consequences defined by the principal offence. D has merely to believe that it will be done in the circumstances or with the consequences:

Example 5Z

D, knowing that his son P is in debt to Z, urges P to commit a burglary in order to clear the debt. D advises P to take a cosh and to hit the security guard at the premises, V, over the head. D's intention is that V should be incapacitated but not that V should suffer any harm. However, D believes that V will suffer injury, albeit not serious. While on way to commit the burglary, P is stopped by the police and searched. P tells the police what D had told him to do.

D's intention was that the criminal act should be done. In addition, D believed that, as a result of the criminal act being done, V would suffer bodily harm. D has committed the offence of intentionally encouraging or assisting the commission of the offence of assault occasioning actual bodily harm.

Conditional intents and beliefs with regard to circumstances

5.122

At this point, we must address a possible complication:

Example 5ZZ

D gives P some money to give to V to persuade V to loan his car to D and P for the afternoon. D says to P "if V is prepared to loan the car, all well and good. If V will not lend it to you, just take it".

In this example, D's preference is for the car to be obtained legally but, if that is not possible, D wishes P to take it anyway.^[137]

In example 5ZZ, D would prefer the vehicle to be obtained with V's consent but has told P that, if consent is not forthcoming, P should take it anyway. D's attitude is that of a person who is determined to have the use of V's car come what may. In as much as D envisages V's car being taken without V's consent, D could not care whether the circumstance element of the offence is or is not present.

5.124

We believe that D ought to be criminally liable if he or she is prepared for a criminal act to be done not caring whether or not the circumstances element of the offence is present. We believe that clauses 1(2)(a) and 2(3)(a) as drafted capture such cases. They require D to believe that if P were to do the criminal act P would do it with the necessary fault. This covers not only the situation where D believes that P will do the criminal act with the necessary fault but also the case where D believes that P will do the act with the necessary fault if P cannot do it fault free. The wording of clauses 1(2)(a) and 2(3)(a) includes the implicit conditional. The same analysis applies to clauses 1(3)(b) and 2(4).

5.125

We also believe that such cases are covered by clauses 1(2)(b) and 2(3)(b). Each clause is based upon the hypothetical situation of D doing that which he or she intended to encourage or assist P to do. If D encourages P to have sexual intercourse with V and to do so even if V does not consent, we believe that a jury would have little difficulty in concluding that D's state of mind was such that that he would have raped V if he were in P's shoes and V did not consent to intercourse.

5.126

As it is based on a hypothetical doing by D of that which he intended to encourage P to do, it matters not that D claims that he would never himself actually have done the criminal act in question. D encourages P to have sexual intercourse with V and to do so even if V does not consent. D does not mind if P rapes V but would never consider raping her himself. However, D will be liable because were he to have done what he intended to encourage P to do, he would have done it with the necessary fault element. He stands in the hypothetical shoes of P in the same way as he would if he had used an innocent P to commit the offence.

PENALTIES

5.127

We recommend that for committing the clause 1 or a clause 2, D should be liable:

(1) if the principal offence is murder, to imprisonment for life; and

(2) in any other case, unless an enactment provides otherwise, to any penalty for which D would be liable on conviction of the principal offence.^[138]

MODE OF TRIAL

We recommend that the mode of trial in the case of the clause 1 or a clause 2 offence should be determined as if D had been charged with the principal offence.

^[139]

Ý
Ü Þ

Note 1    In Part 6 we consider defences and exemptions.    [Back]

Note 2    Subject to possibly retaining some form of accessorial liability for collateral offences committed by P in the course of a joint venture.    [Back]

Note 3    Para 4.163.    [Back]

Note 4    Para 4.99.    [Back]

Note 5    Para 4.10.    [Back]

Note 6    Para 4.154.    [Back]

Note 7    In addition, cl 2(2) of the Bill sets out an additional offence which can be explained more easily when the cl 2(1) offence has been explained.     [Back]

Note 8    See Part 7 below.    [Back]

Note 9    A connected but separate issue concerns the principal offence that D is guilty of intentionally encouraging or assisting – is it assault, assault occasioning actual bodily harm, maliciously inflicting grievous bodily harm or causing grievous bodily harm with intent? We consider this in paras 5.106 to 5.121 below.    [Back]

Note 10    Again, the issue referred to in n 9 above will arise.    [Back]

Note 11    Clause 13 of the Bill abolishes the common law offence of incitement. However, statutory offences of incitement are unaffected by the Bill.    [Back]

Note 12    The fault elements for each of the new offences are contained in cl 1(2) and (3) and cl 2(3) and (4) respectively.     [Back]

Note 13    Clause 3(1) of the Bill.    [Back]

Note 14    Paras 2.22 to 2.23.    [Back]

Note 15    Contrary to the Criminal Damage Act 1971, s 1(1) and (3).    [Back]

Note 16    Under our proposals, P would incur secondary liability for collateral offences that he or she foresaw might be committed in the course of a joint venture. However, foresight of a possibility that P might commit a collateral offence will not render D liable for the clause 2(1) offence. This is because, in order to be guilty of the clause 2(1) offence, D must believe that P will commit the offence. Therefore, the overlap between the clause 2(1) offence and secondary liability will be confined to cases where, in the course of a joint venture, P commits a collateral offence which D believed P would commit.    [Back]

Note 17    See Part 2 paras 2.8 to 2.9    [Back]

Note 18    Clause 10(1) of the Bill and see Appendix A paras A.80 to A.85.    [Back]

Note 19    [1960] 1 QB 129.     [Back]

Note 20    Clause 3(2) of the Bill.    [Back]

Note 21    Principles of Criminal Law, (4th ed 2003) p 472.    [Back]

Note 22    See paras 5.79 to 5.80 below.    [Back]

Note 23    Clauses 1(1)(a) and 2(1)(a) of the Bill.     [Back]

Note 24    R A Duff, Criminal Attempts (1996) p 13 believes that this way of distinguishing the different elements of the actus reus is problematic because it is relative to the way that we describe actions. Thus, if a rapist’s action is described as “having sexual intercourse” the victim’s non-consent is a circumstance of the rapist’s action. If the rapist’s action is described as “having non-consensual sexual intercourse” the victim’s non-consent is part of the action itself rather than a circumstance.    [Back]

Note 25    Criminal Damage Act 1971.    [Back]

Note 26    Clause 17(2) of the Bill – “an act (or failure to act) that falls within the definition of the act (or failure to act) that must be proved in order for a person to be convicted of the offence”.    [Back]

Note 27    If, as a matter of law, P can perpetrate the conduct element of the principal offence by refraining from doing a positive act, D does an act capable of encouraging or assisting “the doing” of a criminal act by encouraging or assisting P to refrain from doing the positive act, eg D urges P to murder P’s child, V, by starving V - cl 17(2) of the Bill.     [Back]

Note 28    Contrary to the Road Traffic Act 1988, s 5(1).    [Back]

Note 29    However, D could be convicted of attempting to encourage or assist P to commit burglary. In sending the package, D has done an act which is “more than merely preparatory” to the commission of the clause 1 offence or clause 2(1) offence – Criminal Attempts Act 1981, s 1(1). Further, the fact that it was impossible for P to be encouraged or assisted by the recipe notes will not avail D. Impossibility is not a defence to the inchoate offence of attempt – Criminal Attempts Act 1981, s 1(2).    [Back]

Note 30    State v Tally (1894) 102 Ala 25.    [Back]

Note 31    Similarly, if P received the letter but did not open it or, having opened and read it, did not appreciate that D was encouraging him to assault V.    [Back]

Note 32    A Criminal Code for England and Wales vol 2, Commentary on Draft Criminal Code Bill (1976) Law Com No 177.    [Back]

Note 33    Above, para 13.6.    [Back]

Note 34    On which, see paras 5.27 to 5.31 above.    [Back]

Note 35    Para 4.160. The CP was published before the decision in Goldman [200] Criminal Law Review 822.    [Back]

Note 36    See para 5.37 below.    [Back]

Note 37    [1997] Criminal Law Review 897.    [Back]

Note 38    Above.    [Back]

Note 39    In Goldman [2001] Criminal Law Review 822 it was held that “incitement” covered a suggestion, proposal, persuasion or inducement. In Giannetto [1997] 1 Cr App R 1, a case of secondary liability, the trial judge directed the jury that D would be liable as an accessory to the murder of V if P had suggested murdering V and D had replied “Oh goody”. The Court of Appeal did not criticise the direction and said that “mere encouragement … would suffice”.    [Back]

Note 40    Para 4.148.    [Back]

Note 41    Para 4.150.    [Back]

Note 42    Para 4.149.    [Back]

Note 43    [2001] Crim LR 822.    [Back]

Note 44    Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 265.    [Back]

Note 45    Contrary to the Misuse of Drugs Act 1971, s 4(1)(b).    [Back]

Note 46    In addition, P would be liable for offering to supply a controlled drug – Misuse of Drugs Act 1971, s 4(1)(b).    [Back]

Note 47    Race Relations Board v Applin [1973] QB 815.    [Back]

Note 48    See cl 15(1) of the Bill.    [Back]

Note 49    Criminal Law Theory and Doctrine (2nd ed 2003) pp 265-266.    [Back]

Note 50    Para 2.133.    [Back]

Note 51    The Commission itself said that specific authority for the view that there had to be persuasion or pressure was “notably sparse” - para 2.132.    [Back]

Note 52    Marlow [1997] Criminal Law Review 897; Goldman [2001] Criminal Law Review.    [Back]

Note 53    Owing to the fact that at common law there is no inchoate offence of assisting crime, the authorities on what constitutes “assisting” are cases, usually of complicity, in which the issue has been whether D has “aided” P to commit an offence.    [Back]

Note 54    Para 4.71.    [Back]

Note 55    Para 4.48.    [Back]

Note 56    Para 4.99(2).    [Back]

Note 57    Para 5.2.6(2).    [Back]

Note 58    [1984] QB 795. The case involved the distribution of a leaflet describing ways of committing suicide. It was a civil case in which the Attorney-General sought a declaration that publication of the booklet would constitute an offence because it would “aid and abet” suicide contrary to s 2(1) of the Suicide Act 1961.    [Back]

Note 59    Para 4.53.    [Back]

Note 60    Glanville Williams, Criminal Law: The General Part (2nd ed 1960) p 381 criticising the New Zealand case of Baker (1909) 28 NZLR 536 where D was held liable as a party to an offence because he had written a letter describing in general terms techniques for safe-breaking. It should be noted that the problem that Professor Williams adverted to is not confined to advice. A jemmy can be used to commit numerous burglaries.     [Back]

Note 61    Para 4.154.    [Back]

Note 62    Para 4.66.    [Back]

Note 63    Para 4.67.    [Back]

Note 64    Professor K J M Smith, “The Law Commission Consultation Paper on Complicity (1): A Blueprint for Rationalism” [1994] Criminal Law Review 239, 243.    [Back]

Note 65    With one exception, we are recommending that D should be liable to any penalty for which for which he or she would be liable if convicted of the principal offence. The exception is if D is convicted or encouraging or assisting murder. D would be liable to a maximum sentence of imprisonment for life but would not attract the mandatory life sentence – cl 12(2) of the Bill.    [Back]

Note 66    Principles of Criminal Law (4th ed 2003) p 418.    [Back]

Note 67    Simester and Brookbanks, Principles of Criminal Law (2nd ed 2002) p 46.    [Back]

Note 68    Gibbins and Proctor (1918) 13 Cr App R 134; Pittwood (1902) 19 TLR 37.    [Back]

Note 69    A parent is under a legal duty to act in order to ensure the health and safety of his or child. A police officer is under a similar duty towards those whom he or she has arrested or who are in his or her custody. A legal duty to act may arise because of a contractual relationship, eg employer and employee.    [Back]

Note 70    The owner of a motor car is entitled to control the actions of those whom he or she allows to drive the car – Du Cros v Lambourne [1907] 1 KB 40. An owner of premises or land is entitled to control the actions of those who are on the premises or land.    [Back]

Note 71    The relevant authorities are Coney (1882) 8 QBD 534; Wilcox v Jeffery [1951] 1 All ER 464; Allen [1965] 1 QB 130; Smith v Baker [1971] 1 RTR 350; Clarkson [1971] 1 WLR 1402; Allen v Ireland [1984] 1 WLR 903; Bland [1988] Criminal Law Review 41.    [Back]

Note 72    Du Cros v Lambourne [1907] 1 KB 40; Tuck v Robson [1970] 1 WLR 741 where a publican permitted customers to consume alcohol on the licensed premises outside the permitted hours; JF Alford Transport [1997] 2 Cr App R 326 where a company did nothing to prevent its employees falsifying their tachograph records; Gaunt [2003] EWCA Crim 3925.    [Back]

Note 73    It is true that previously the Commission has taken the view that there is such a general principle – clause 27(3) of the Draft Criminal Code Bill and commentary in A Criminal Code for England and Wales, vol 2 Commentary on Draft Criminal Code Bill (1989) Law Com No 177 para 9.22. See Professor Glanville Williams, “Which of you did it?” (1989) 52 Modern Law Review 179 and, by the same author, “What should the Code do about Omissions?” (1987) 7 Legal Studies 92.     [Back]

Note 74    Paras 4.69 to 4.74.    [Back]

Note 75    Para 4.158.    [Back]

Note 76    Clause 15(2) of the Bill.    [Back]

Note 77    Since P’s assault on V was sudden and out of character, D cannot be liable for failing to prevent the initial assault. However, under our scheme the “doing of a criminal act” includes the continuation of a criminal act that has already began – cl 17(3)(a). Accordingly, the issue is whether D has failed to take reasonable steps to prevent the continuation of the assault.    [Back]

Note 78    Brown (1841) Car & M 314, 174 ER 522.    [Back]

Note 79    Criminal Law Act 1967, s 3.    [Back]

Note 80    See the discussion in Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 73 to 74.    [Back]

Note 81    Paras 5.23 to 5.26 above.    [Back]

Note 82    In the overwhelming majority of cases, this will be true. However, for an example of where D intends that P should be encouraged to commit an offence while being indifferent as to whether the offence is ultimately committed, see Appendix A para A.27.    [Back]

Note 83    In the CP, the Commission employed “purpose” rather than “intention”. By “purpose” the Commission meant acting with the aim and object of bringing about the commission of the principal offence. The Bill that accompanies this report uses intention rather than purpose.    [Back]

Note 84    Para 4.154.    [Back]

Note 85    Above. The Commission provided examples, one of which was D publishing an article criticising the use of animal experiments. The article inspires P to cause criminal damage to a laboratory.     [Back]

Note 86    Para 4.95.    [Back]

Note 87    Para 4.82.    [Back]

Note 88    Para 4.83.    [Back]

Note 89    Para 4.82.    [Back]

Note 90    Para 5.20 above.    [Back]

Note 91    Para 4.154.    [Back]

Note 92    See Part 6 paras 6.18 to 6.26 below.    [Back]

Note 93    Para 4.86.    [Back]

Note 94    Principles of Criminal Law (4th ed 2003) p 425.    [Back]

Note 95    In the sense of what is usually referred to as “direct” intention. See clause 18 of the Bill and Appendix A paras A.26 to A.30 and para A.100.    [Back]

Note 96    Clause 1(1)(b) of the Bill.     [Back]

Note 97    Clause 2(1)(b)(i) of the Bill. Clause 3(5) of the Bill provides that it is sufficient that D believes that the criminal act will be done if certain conditions are met.    [Back]

Note 98    Clause 2(1)(b)(ii) of the Bill.    [Back]

Note 99    The relevant provisions in the Bill are clauses 2(2) and clause 3(2) to (7). For explanation, see Appendix A paras A.52 to A.55.    [Back]

Note 100    See paras 4.15 to 4.16 above.    [Back]

Note 101    Para 5.89(2) above.    [Back]

Note 102    Clause 2(2)(b)(i) of the Bill. Clause 3(6) of the Bill provides that it is sufficient if D believes that one or more of the criminal acts will be done if certain conditions are met.    [Back]

Note 103    Clause 2(2)(b)(ii) of the Bill.    [Back]

Note 104    Clause 3(4) of the Bill. If, however, D intends that a number of criminal acts should be committed, it will be possible to prosecute D for the clause 1 offence in relation to each criminal act even if D did not believe that all of them would be committed – clause 3(1) of the Bill.     [Back]

Note 105    Clause 3(3) of the Bill and Appendix A para A.53.    [Back]

Note 106    Contrary to the Theft Act 1968, s 9(1)(b).    [Back]

Note 107    Theft Act 1968, s 2(1)(a).    [Back]

Note 108    Children and Young Persons Act 1933, s 50.    [Back]

Note 109    Bourne (1952) 36 Cr App R 125.    [Back]

Note 110    Paras 3.26 to 3.32.    [Back]

Note 111    Sexual Offences Act 2003, s 1(1)(a).    [Back]

Note 112    Sexual Offences Act 2003, s 1(1)(b).    [Back]

Note 113    Sexual Offences Act 2003, s 1(1)(c).    [Back]

Note 114    Clauses 1(2)(a) and 2(3)(a) of the Bill.     [Back]

Note 115    Clauses 1(2)(b) and 2(3)(b) of the Bill.    [Back]

Note 116    Clause 11 of the Bill.    [Back]

Note 117    “Recklessness in Assault – And in General?” (1991) 107 Law Quarterly Review 187, 192.    [Back]

Note 118    Mowatt [1968] 1 QB 421.    [Back]

Note 119    Church [1966] 1 QB 59; DPP v Newbury [1977] AC 500    [Back]

Note 120    Contrary to Road Traffic Act 1988, s 103.    [Back]

Note 121    Bowsher [1973] RTR 202; Miller [1975] 2 All ER 974. A court may in certain circumstances disqualify a person from holding or obtaining a driving licence even though that person is not physically before the court.    [Back]

Note 122    As confirmed in R v G [2006] EWCA Crim 819.    [Back]

Note 123    In example 5Y, P can hardly complain. He would have been notified by the court that the court was considering disqualifying him and he would have had the opportunity to attend court to make representations as to why he should not be disqualified – Magistrates’ Courts Act 1980, s 11(4).    [Back]

Note 124    Eg, causing grievous bodily harm with intent contrary to Offences against the Person Act, s 18.    [Back]

Note 125    Eg, the offence of criminal damage contrary to Criminal Damage Act 1971, s 1(1) - G [2003] UKHL 50; [2004] 1 AC 1034    [Back]

Note 126    Eg, the offence of dishonest handling contrary to the Theft Act, s 22 (1).    [Back]

Note 127    Eg, the offence of criminal damage contrary to the Criminal Damage Act 1971, s 1(1).    [Back]

Note 128    Criminal Law Act 1977, s 1(2).     [Back]

Note 129    Saik [2006] UKHL 18; [2006] 2 WLR 993.    [Back]

Note 130    [1990] 2 All ER 783. In so holding, the Court of Appeal reflected cl 49(2) of the Law Commission’s Draft Criminal Code.    [Back]

Note 131    (1993) 98 Cr App R 383.    [Back]

Note 132    Clause 1(3)(a) of the Bill. For explanation, see Appendix A paras A.31 to A.44.    [Back]

Note 133    Clauses 1(3)(b) and 2(4) of the Bill. For explanation, see Appendix A paras A.45 to A.51.     [Back]

Note 134    Contrary to the Offences against the Person Act 1861, s 47.    [Back]

Note 135    Contrary to the Offences against the Person Act 1861, s 18.    [Back]

Note 136    Contrary to the Offences against the Person Act 1861, s 20.    [Back]

Note 137    In example 5ZZ, the principal offence is taking a motor vehicle without the consent of the owner contrary to the Theft Act 1968, s 12(1). The circumstance element of the offence is the lack of the owner’s consent.    [Back]

Note 138    Clause 12 of the Bill.    [Back]

Note 139    Clause 9 of the Bill.    [Back]

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You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(5) (04 July 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/300(5).html Cite as: [2006] EWLC 300(5)