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You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(6) (04 July 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/300(6).html Cite as: [2006] EWLC 300(6) |
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PART 6
DEFENCES AND EXEMPTIONS
6.1 In this Part we consider defences and exemptions from liability. In the CP, the Commission's approach to defences and exemptions reflected the different fault elements of the two inchoate offences that it was proposing. The fault element for encouraging crime was intention that an offence should be committed whereas that for assisting crime was knowledge or belief that an offence would be committed. 6.2 Broadly, the Commission proposed that there should be no defences and exemptions available to persons whose intention was that the principal offence should be committed. It followed, therefore, that defences and exemptions were to be denied to those who encouraged the commission of an offence. By contrast, the Commission proposed that some defences and exemptions should be available to those who indifferently assisted the commission of an offence. 6.3 As will become apparent, we are no longer of the view that the availability of defences should depend on whether D provides encouragement as opposed to assistance. We begin by setting out those defences and exemptions that we recommend should be available. We then go on to set out our reasons for rejecting other defences that were highlighted for consideration in the CP.INTRODUCTION
DEFENCES AND EXEMPTIONS THAT WE ARE RECOMMENDING
6.4 In Part 3 we said[1] that there is uncertainty as to whether acting for the purposes of law enforcement can be a defence to preliminary offences such as incitement and conspiracy. Frustrating the commission of crime can take one of three forms:Acting to prevent the commission of offences or to prevent or limit harm
(1) encouraging or assisting the commission of an offence but with the purpose of preventing its commission. An example would be where a police informer or undercover officer does something to encourage or assist the commission of a robbery but the purpose is to ensure that it is not committed;
(2) encouraging or assisting the commission of an offence not in order to prevent its commission but in order to reduce its harmful effects;[2]
(3) encouraging the commission or attempted commission of an offence in order to prevent the commission of future offences, for example an undercover officer who acts in a way designed to encourage a hitherto undetected serial rapist to attack her.
6.5 In the CP, the Commission proposed that there should be a defence of law enforcement to its proposed offence of assisting crime. It proposed that the defence should be available to any individual whose "overall course of conduct" was directed towards frustrating the commission of the principal offence.[3] The Commission invited comment on whether the defence should extend to incidental offences, for example a theft committed in order to obtain property to be used in a robbery.The proposals in the CP
6.6 The majority of respondents who addressed the issue thought that there should be a defence of acting in order to prevent crime. Of the majority, some felt that the assister should be exonerated only for the offence that he or she intended to frustrate but not for an incidental offence. Some respondents expressed misgivings about the defence being available to private citizens. 6.7 One respondent, while accepting that the defence should be wide enough to exonerate those involved in undercover "sting" operations, such as test purchases and "manna from heaven" operations,[4] thought that a criterion of "reasonableness" should be built into the defence. Most respondents believed that D should bear the burden of proving the defence.Responses to the proposals in the CP
6.8 We believe that in principle there should be a defence of acting in order to prevent the commission of an offence or in order to prevent or limit harm. We do so for two reasons:Conclusions
(1) it is in the public interest that acts be done in order to prevent crime or to prevent or limit the occurrence of harm. Accordingly, an act of encouragement or assistance, the overall purpose of which is to prevent crime or to prevent or limit harm, is justified because of its value to society;
(2) those whose overall purpose in encouraging or assisting the commission of an offence is to prevent crime or to prevent or limit harm are acting as good citizens and should not be punished for doing so;
6.9 At one stage, we thought that the defence should only be available to formal and informal agents of the state - police and customs officers, local authority trading standards officers, agents working under their control and civilian informers subject to regulation and supervision by the relevant law enforcement authority. We thought that the arguments in favour of such a restriction were:SHOULD THOSE TO WHOM THE DEFENCE IS AVAILABLE BE RESTRICTED?
(1) law enforcement is primarily the responsibility of the state. Private citizens and the media should be discouraged from participating in offences on their own initiative even if the motive is to prevent crime. Important considerations are the safety of the citizen, the dangers of private vendettas being pursued and private acts hindering the activities of the state's law enforcement agencies.
(2) there should be external controls in order to ensure that D's involvement is proportionate to the overall aim of an operation to prevent crime;
6.10 At the same time, we recognised that the defence would be open to abuse even if restricted to agents of the state. Test purchases can be made when there are no reasonable grounds for suspecting or believing that a trader is flouting the law. Police informers sometimes have their own agenda and it may sometimes be unclear whether their actions have been properly supervised and controlled. 6.11 In addition, we now believe that it would be exceedingly difficult to define exhaustively the persons who would be eligible to plead the defence. It is vital that the question of who can rely on the defence does not turn on technicalities. Accordingly, we are not recommending that the defence should be limited to particular individuals or categories.(3) to obviate the possibility of the defence being raised by criminals who might prepare the necessary groundwork for a false defence of crime prevention prior to and during their involvement in a criminal enterprise.
SHOULD INCIDENTAL OFFENCES BE EXCLUDED FROM THE SCOPE OF THE DEFENCE?
6.12 We believe that the defence should exonerate D for encouraging or assisting any offence provided D's overall purpose was to prevent the commission of crime or to prevent harm and provided that D acted reasonably in the circumstances:Example 6A
P is a member of a gang planning an armed robbery. D, who has infiltrated the gang, tells P where to steal a lorry which can be used in the robbery. D does so in order to maintain credibility with members of the gang. D's aim is to prevent the commission of the robbery.
Admittedly, D's assistance was not for the purpose of preventing P to commit theft. However, that ought not to preclude D pleading the defence to a charge of encouraging or assisting theft. D ought to be able to say that what he or she did was in order to frustrate the commission of another offence. The critical issue is the reasonableness of D's conduct. Was it reasonable in the circumstances to assist the commission of offence x in order to prevent the commission of offence y?
A REQUIREMENT OF ACTING REASONABLY
6.13 In the CP, the Commission said:… it should be enough that [D] believes that his act of assistance is necessary as part of the implementation of his purpose of preventing the commission of the principal crime.[5]
However, we now believe that in order to rely on the defence, it must have been reasonable in the circumstances for D to have acted as he or she did.
6.14 This is to ensure that D can only successfully plead the defence if what D did was proportionate to the seriousness of the offence or harm that D was trying to prevent or limit. It is not in the public interest for D to encourage or assist the commission of an offence if the offence in question is more serious than the offence that D is seeking to prevent. In this regard, the requirement of reasonableness is a restraining principle and will operate as a curb on those who might think that any conduct is justifiable in the public interest. For example, the defence should not be available if D encourages P to shoot V when V is stealing some vegetables from P's allotment, even if D believes that it is necessary to shoot V in order to prevent V stealing the vegetables. 6.15 D should bear the legal burden of proving the defence on a balance of probabilities. We do not believe that placing the legal burden on D is incompatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms. This is because the prosecution will still have had to prove the elements of the offence and if D raises the defence he or she is likely to be the only or the primary source of information as to his or her purpose.6.16 We recommend that it should be a defence to a charge under clause 1 or clause 2 if D proves that:Recommendation
(1) he or she acted for the purpose of:
preventing the commission of either the offence that he or she was encouraging or assisting or another offence; or
to prevent or limit the occurrence of harm;[6] and
(2) it was reasonable to act as D did in the circumstances.[7]
6.17 It is beyond the scope of this report to make formal recommendations in relation to the inchoate offence of conspiracy. However, we think that it would be anomalous if there were a defence of crime prevention to encouraging or assisting the commission of an offence but not to conspiring to commit an offence. Accordingly, we suggest that consideration be given to reversing the decision of the Privy Council in Yip Chiu-Cheung v R[8] by way of a statutory defence of crime prevention in cases of conspiracy.Implications for conspiracy
6.18 We acknowledge that the clause 2(1) offence raises the spectre of D being liable for conduct consisting of normal and commonplace activities or, more broadly, activities that might be thought to be within D's rights to engage in:A defence of acting reasonably
Example 6B
D is driving at 70 miles per hour in the outside lane of a motorway. P, driving faster, comes up behind D. D pulls over to let P overtake.
D, although not intending that P should continue speeding, knows that pulling over will assist P to continue speeding.[9]
6.19 We believe that there should be a defence which will prevent D being held liable for acts which, in the circumstances, D could reasonably have expected to be able to engage in free from the taint of criminality. In other words, it ought to be open to D to say that his or her conduct was reasonable in the circumstances. 6.20 We are reinforced in this view by the fact that the criminal law has in other contexts recognised defences based on acceptable conduct, that is conduct that would, by virtue of its very ordinariness, not be regarded by most people as criminal. Thus, in the context of assault and battery, there is a defence of acceptable conduct that prevents D being criminally liable for assaulting P by clapping P on the back as a congratulatory gesture. D is not criminally liable because his or her conduct takes the form of "physical conduct which is generally acceptable in the ordinary conduct of daily life".[10] 6.21 Another context is the Protection from Harassment Act 1997 ("the 1997 Act"). While harassment can be very serious, it may also take place in a context in which it is acceptable conduct, for example D continually asking his or her neighbour to turn down the volume of the music that the neighbour is constantly playing loudly. Accordingly, section 1(3)(c) of the 1997 Act provides that D is not guilty of harassment if "in the particular circumstances the pursuit of the conduct was reasonable". 6.22 A defence of acting reasonably in the circumstances would operate as a substantive and independent basis for acquittal. It would enable a jury to balance D's claim that he should be regarded as within his rights to act as he did against, amongst other things, the seriousness of the offence that D believes will occur as a result of providing the encouragement or assistance. It is true that the responses of different courts and juries on the issue of reasonableness may be unpredictable. However, we are not aware that similar defences have caused undue difficulties for juries and magistrates. 6.23 We acknowledge that a reasonableness defence has the potential for operating in an unfettered way. We would not wish the defence to result in unmeritorious acquittals. Accordingly, it should be a requirement of the defence that D acted reasonably in the circumstances that he or she knew or reasonably believed existed:Example 6C
D and P, who are acquaintances, are at an inn in an area where there is no public transport. D has driven there and plans to stay overnight. P, who D knows is disqualified from driving, was driven there by X. After a row, X drives off. P approaches D and says that the inn has received a phone call from P's wife who is distraught because their child has been seriously injured in an accident. D asks P if D will drive P home. D says that he has had too much to drink, as P well knows, but reluctantly agrees to give P the keys to his car. Before P can drive off, he is spotted by policemen and arrested on another matter. P's wife had not rung the inn.
Under our recommendations, D must reasonably believe that P's child has been seriously injured and that P had no effective lawful means of getting home. In deciding whether the beliefs were reasonably held, a court would be entitled to take into account the measures that were available to D for verifying P's account and for concluding that there were no effective lawful means open to P for getting home. If the court found that D's beliefs were reasonably held, it would then have to consider whether, in the light of those beliefs, D acted reasonably in providing P with the means to drive while disqualified.
6.24 Unlike the defence of acting to prevent the commission of an offence or to prevent harm, we are not recommending that this defence should be available to if it was D's intention that P should commit an offence with D's encouragement or assistance. 6.25 As with the defence of acting to prevent the commission of an offence or to prevent harm, the burden of proof should be on D to prove all the elements of the defence on a balance of probabilities.[11]6.26 We recommend that it should be a defence to a charge under clause 2 if D proves that his or her conduct was reasonable in the circumstances as he knew or reasonably believed them to be.[12]Recommendation
An exemption from liability in cases of protective offences
6.27 In Part 1,[13] we referred to the common law Tyrrell[14] exemption. In Tyrrell P, an adult, had unlawful sexual intercourse with D, a child aged between 13 to 16.[15] It was alleged that D had encouraged P to commit the offence. It was held that D could not be convicted of committing the offence as an accessory or of inciting the offence because the offence had been enacted for the purpose of protecting a category of persons and D fell within the category. This was because the relevant statutory provision was "passed for the purpose of protecting young women and girls against themselves".[16] According to Lord Coleridge CJ, Parliament could not "have intended that the girls for whose protection [the offence] was passed should be punishable under it for the offences committed upon themselves".[17] 6.28 This suggests that the underlying principle is that where the purpose of a statutory offence is to protect a category of persons, no member of that category can be convicted of committing the offence as a secondary party or of inciting its commission. The principle has been applied in the context of incest,[18] although it is arguable that the basis of the offence was eugenic rather than protectionist.[19] The principle has also been applied where D, a prostitute, was charged with being an accessory to her husband's offence of living on immoral earnings.[20] The offence existed in part to protect prostitutes but that was not its only function. An additional reason for the offence was to prevent fortunes being made by those who organise prostitution.The common law
6.29 The Sexual Offences Act 2003 is largely silent on the Tyrrell exemption. The Act creates specific sexual offences designed to protect children under 13, namely rape of a child under 13,[21] assault of a child under 13 by penetration[22] and sexual assault of a child under 13.[23] Each offence can be committed by a child under 13.[24]The Sexual Offences Act 2003
Example 6D
6.30 P, by intentionally penetrating D's mouth with his penis, commits the offence of rape of a child under 13. Presumably, D is not an accessory to that offence because she can rely on the Tyrrell exemption. However, D is guilty of the offence of sexual assault of a child under 13 because she has intentionally touched P and the touching is sexual.[25] Presumably, P is not an accessory to that offence because he can rely on the Tyrrell principle.D, a girl aged 12, encourages P, a boy aged 12, to allow her to perform oral sex on him. P permits D to do this.
Example 6E
6.31 Again, P is guilty of rape of a child under 13. V is not guilty of that offence by virtue of the Tyrrell principle.[26] Whether D is guilty of that offence as an accessory depends on whether the Tyrrell exemption is available to those who are not victims. In Tyrrell the girl was herself the victim of the offence and in all the other cases where the principle has been applied, the person within the protected category has been a victim of the principal offence. On the other hand, there is no case where the courts have expressly held that the exemption is only available to a person who is or would be the victim of the principal offence. 6.32 It seems that Parliament's understanding was that the Tyrrell exemption is only available to those who are victims of the principal offence. Section 8 of the Sexual Offences Act 2003 creates an offence of causing or inciting a person under 13 to engage in sexual activity:D, a girl aged 12, encourages P, a boy aged 12, to allow D's friend V, a girl aged 12, to perform oral sex on P. P permits V to do this.
Example 6F
D, a girl aged 12 encourages P, a boy aged 12, to have sexual intercourse with her.
Example 6G
6.33 The offence under section 8 is for the protection of children under 13 and in both example 6F and example 6G D falls within that category. In the absence of any express provision to the contrary, the offence under section 8 is subject to the Tyrrell exemption. On the other hand, it is significant that in enacting section 8, Parliament did not confine the commission of the offence to persons aged 13 or over. This suggests that Parliament envisaged that there would be circumstances in which a person under 13 could be guilty of the offence. This, in turn, suggests that Parliament assumed that the availability of the Tyrrell exemption is dependent on whether D is a victim or potential victim of the principal offence.[27] In other words, Parliament's intention was that, in example 6F, D should be able to avail herself of the Tyrrell exemption, but not in example 6G.D, a girl aged 12, encourages P, a boy aged 12, to have sexual intercourse with V, a girl aged 12.
6.34 In the CP, the Commission described the Tyrrell exemption as being "of uncertain content, and uncertain effect".[28] In setting out its provisional proposals for an inchoate offence of assisting crime, the Commission said provisionally that the exemption should be "stated much more widely than at present".[29] The Commission believed that D ought not to be liable for assisting the commission of a statutory offence if "his conduct is inevitably incidental to its commission and that conduct is not made criminal by that offence".[30] 6.35 The fault element that the Commission was proposing for the offence of assisting crime was "knowledge or belief" on the part of D that P "is doing … or will do … acts that do or will involve the commission of an offence by [P]; …".[31] Some assisters would not only satisfy the "knowledge or belief" test but would also have the more culpable fault element of intending that P should commit the offence with their assistance. The Commission inclined to the view that the wider exemption of "incidental involvement" should either not be available in such cases or at least should be available only in a very limited number of cases.[32] It invited comment on what those cases might be. 6.36 The fault element that the Commission proposed for encouraging crime was intention on D's part that P should commit the principal offence.[33] It proposed that as a general rule it would be "inappropriate to extend the defence to an encourager".[34] However, it thought that there might be cases, conspicuously those of sexual offences against minors, where the victim "should be exculpated even though she has encouraged rather than assisted in the commission of the offence".[35] The Commission invited comment on what those offences might be.The proposals in the CP
6.37 Amongst those respondents who addressed the issue, the majority, with little or no elaboration, agreed with the Commission's proposal for a "more widely" stated exemption. However, Professor Sir John Smith strongly disagreed, describing the Commission's proposal as "dangerously wide":Responses to the proposals in the CP
If a licensee sells liquor to a constable on duty, I see every reason why the constable should be guilty of [assisting] whether he incited the offence or not. His conduct is inevitably incidental to the commission of the offence, but the offence exists for the protection of the public, not the constable … . The conduct of the recipient of controlled drugs is inevitably incidental to the offence of supplying drugs to another; but if the recipient is buying a ton of the stuff he must surely be guilty of [assisting].
6.38 We now believe that the fact that D's assistance is or will be incidental to the commission of the principal offence should not in itself be a reason for exonerating D. The correct approach is one that is based on statutory interpretation. D should be exempt from liability only if, in enacting the principal offence, it was Parliament's intention to afford protection to a particular category of persons and D falls within that category. 6.39 However, we recognise that, when enacting an offence, Parliament may have more than one objective. We do not think that the exemption should be confined to encouraging or assisting the commission of principal offences the only purpose of which is the protection of a particular category of persons. It should suffice that one reason for enacting the offence was to protect a particular category of persons. 6.40 A more difficult issue is whether the exemption should be confined to cases where D would be a "victim" were the principal offence to be committed. Parliament when enacting an offence for the protection of a category of persons does not usually distinguish between different individuals within the category. Instead, each person within the category is considered worthy of protection irrespective of his or her individual traits:Conclusions
Example 6H
D, a girl aged 15 and sexually very experienced, encourages P, a sexually inexperienced young man aged 18, to engage in sexual activity with her.[36] P knows D is aged 15.
The fact that D is active in tempting P and is sexually very experienced is irrelevant. The offence was enacted for the protection of children under 16 and D is such a person. D is not guilty of inciting P to engage in sexual activity.
6.41 In example 6H, it might be thought that there are two reasons for concluding that D is a "victim". First, if the offence were committed, it would be committed against her. Secondly, she is a "victim" because she is within the protected category and is considered to be in need of protection from others and, despite her sexual experience, from herself:Example 6J
D, a girl aged 15 and sexually inexperienced, encourages P a young man aged 18, to engage in sexual activity with her friend V, a 15 year old girl, who is sexually very experienced. V also encourages P to engage in sexual activity with her.
V is a "victim" because she is within the protected category and because she is the person against whom the offence would be committed. By contrast, D is a "victim" only because she is a person within the protected category.
6.42 In example 6J, it might be thought that as V's need for protection is no greater than D's, if V is able to rely on the exemption, so too should D. However, by contrast:Example 6K
D, a precocious and sexually experienced girl aged 14, encourages her brother P, who is aged 18, to engage in sexual activity with D's friend, V, a girl aged 13 and a virgin. V also encourages P to engage in sexual activity with her.
If D is to be exonerated, it can only be because she is a member of the protected category. On balance, we do not believe that it would be right that she should be exempt from liability merely on that basis. D is prepared to encourage or assist the commission of an offence against a vulnerable person. We accept that V will not always be as vulnerable as V is in example 6K. However, we believe that it would be very unsatisfactory for D's liability to depend on the extent of V's vulnerability, not least because the trial process would then involve scrutiny of V's character and previous behaviour.
6.43 There is no justification for confining the exemption to sexual offences. Parliament has created offences other than sexual offences for the protection of a particular category of persons. Thus, the Care Standards Act 2000 includes offences designed to protect vulnerable adults residing in care homes. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 contains offences which are in part designed to protect people who are trafficked for exploitation. The Gangmasters (Licensing) Act 2004 contains offences which are in part designed to protect certain categories of workers.Non-sexual offences
6.44 We recommend that it should be a defence to a charge under clause 1 or clause 2 if:Recommendation
(1) the offence encouraged or assisted is one that exists wholly or in part for the protection of a particular category of persons;
(2) D falls within the protected category;
(3) D is the person in respect of whom the offence encouraged or assisted was committed or would have been had it had been committed.[37]
6.45 In the CP, the Commission identified a number of other potential defences. It concluded that, apart from a defence of withdrawal, none of them were appropriate if D's intention was that P should commit an offence.[38] However, the Commission did consider what defences, if any, should be available to an indifferent assister.DEFENCES THAT WE ARE NOT RECOMMENDING
Indifferent assistance in the course of employment
6.46 The Commission provisionally rejected a blanket rule exempting all assistance rendered in the course of employment. It thought that such a rule would, for example, inappropriately exempt from criminal liability the employed bodyguards of a violent professional criminal.[39] 6.47 Instead, the Commission distinguished indictable and summary offences. It provisionally proposed that an employee, D, should not be criminally liable for assisting his or her employer, or a third party, to commit a summary offence provided that the assistance took the form of acts done in the course of D's employment.[40]The proposals in the CP
6.48 The majority of those who considered the issue agreed that there should be a defence limited to summary offences.Responses to the proposal in the CP
6.49 On balance, we believe that such a defence is neither desirable nor necessary. First, there is no general principle that obeying a superior's unlawful orders is a defence to a crime. We see no justification for creating an exception in the particular case of employees. Secondly, a distinction between indictable and summary offences pays insufficient attention to the fact that some summary offences involve wrongdoing that can lead to very serious consequences and are punishable with imprisonment.[41] Thirdly, we are recommending an offence of acting reasonably in the circumstances. The availability of that defence, irrespective of whether the principal offence is indictable or summary, obviates the need for a defence tailor-made for employees acting in the course of their employment.Conclusion
6.50 In the CP, the Commission said that there were no legitimate policy reasons for creating a special defence for an indifferent assister whose facilitative act was done in the ordinary course of a business. Indeed the Commission thought that, above all others, business suppliers should be deterred from providing the means by which an offence could be committed.[42] The overwhelming number of respondents who commented on the issue agreed with the Commission.Indifferent assistance in the course of a business
6.51 We remain convinced that such a defence is not justified. Again, our view is reinforced by the availability of the defence of acting reasonably in the circumstances. The defence would be available to a trader who can prove that he or she acted reasonably in the circumstances.Conclusion
6.52 Withdrawal has long been recognised as a defence to secondary liability.[43] The main rationale for the defence is that an accessory who voluntarily changes his or her mind before the principal offence is committed or attempted is significantly less culpable that an accessory who continues to support the commission of the offence.[44] An additional rationale for the defence is that accessories should be provided with an incentive to withdraw.[45] 6.53 By contrast, withdrawal has never been a defence to incitement. Indeed, it might be thought to be anomalous if it were a defence because incitement, being an inchoate offence, crystallises at the moment the encouragement comes to the attention of another person. In principle, any subsequent conduct on the part of D is legally irrelevant. 6.54 However Professor Spencer has suggested that withdrawal should be a defence because if D, prior to the principal offence being committed or attempted, is in a position to try to prevent the commission of the offence, he or she should be encouraged to do so.[46]Withdrawal
6.55 In the CP, the Commission proposed that withdrawal should be a defence to both of the inchoate offences that it was proposing. In the case of assisting crime, it said that the defence should be available only if D took all reasonable steps to prevent the commission of the principal offence.[47] In the case of encouraging, the Commission proposed that the defence should be available if D, with a view to preventing the commission of the principal offence, took all reasonable steps or countermanded his or her previous encouragement.[48]The proposals in the CP
6.56 The majority of respondents who address the issue thought that there should be a defence of withdrawal. Those who expressed disagreement said that, given the nature of inchoate liability, withdrawal should be relevant only to sentence.Responses to the proposals in the CP
6.57 We are not persuaded that there should be a defence of withdrawal to the offences that we are recommending. The availability of the defence would be logically indefensible. The arguments that have been advanced in support of the defence focus on D doing something to nullify the effect of his or her previous encouragement or assistance. However, inchoate liability is not dependent on D's conduct having any effect on P. D is liable even if his or her conduct has no effect on P and there was never any prospect of P committing the principal offence. 6.58 If it is logically indefensible to extend the defence to inchoate offences, are there other considerations that outweigh the objection founded upon logic? In the CP, the Commission referred to the "the social value of encouraging the reversal of [D's] acts of assistance".[49] However Professor K J M Smith has questioned the Commission's assumption that D will be aware of the defence and would, therefore, be capable of being influenced by its availability.[50] More recently, Profesor Ashworth has observed that "… the language of incentives is only apposite if people … are aware of the legal rule".[51] We believe that providing a providing a defence of withdrawal would have at best a marginal effect in encouraging people to reverse their acts of encouragement or assistance.Conclusion
Impossibility
6.59 In the CP, the Commission provisionally concluded that the defence should not be available to either of the offences that it was proposing.[52] It thought that D's moral culpability was unaffected by the impossibility, unknown to D, of P committing the principal offence.The proposals in the CP
6.60 The overwhelming majority of respondents who commented on the issue thought that impossibility should not be a defence to inchoate offences of encouraging or assisting crime.Responses to the proposals in the CP
6.61 We believe that impossibility should not be a defence to the new offences that we are recommending. D's state of mind and, therefore his or her culpability, is unaffected by the unknown impossibility of the principal offence being committed. Further, if D can be liable notwithstanding that, contrary to D's belief, P never intends to commit the principal offence, it would be illogical if D was able to plead that it would have been impossible to commit the principal offence. 6.62 We do not believe that it is necessary for the Bill to include a clause expressly addressing the issue. In Part 5,[53] we explained that D's liability is in relation to an abstract and not a particular principal offence. In order to be convicted of the new offences, D must do an act that is capable of encouraging or assisting the doing of a criminal act. "Criminal act" refers to no more than the conduct element of the principal offence. If D gives P a weapon, D has done an act capable of assisting the doing of the criminal act of a number of different offences against the person. D's liability will turn on whether he or she intended or expected that P would use the weapon to attack another human being and, if so, with what consequences. 6.63 Accordingly, if D, in return for payment, provides P with a weapon believing that P will use it to attack V1 (intending to kill V1), D is guilty of assisting murder irrespective of whether P uses the weapon to attack anyone. Were P to attack and murder V2, instead of V1, D would be equally guilty of encouraging or assisting murder. If P attacked V2 because V1 was already dead at the time that D provided the weapon, D would still be guilty of encouraging or assisting murder. It may have been impossible for V1 to be murdered but, nonetheless, D had done an act capable of encouraging or assisting the conduct element of murder, namely an attack on any human being.Conclusion
Note 1 Paras 3.50 to 3.54. [Back] Note 2 Clarke (1984) 80 Cr App R 344 is an illustration. D participated in a burglary but claimed to have done so in order to prevent the other participants escaping and to ensure that the property would be recovered. [Back] Note 4 An example of a test purchase is a child under the age of 16, and under the control of the local authority trading standards department, going into a shop and buying a lottery ticket. A “manna from heaven” operation is one where police, in the course of an investigation into suspected criminal behaviour, provide an opportunity for anybody to commit the criminal behaviour that they are investigating, eg the police expose cartons of cigarettes, apparently unguarded, in the back of a van parked in the street – Williams v DPP (1993) 98 Cr App R 209. [Back] Note 5 Para 4.126 (emphasis added). [Back] Note 6 Clause 4(1)(a) of the Bill. For explanation, see Appendix A paras A.57 to A.60. [Back] Note 7 Clause 4(1)(b) of the Bill. [Back] Note 8 [1995] 1 AC 111. [Back] Note 9 For a further example, see example 1K in Part 1 para 1.31. Another example would be a person who locks his or her door to prevent V seeking refuge in D’s house from a gang intent on assaulting V. [Back] Note 10 Collins v Wilcock [1984] 1 WLR, 1172, 1174 by Lord Goff. [Back] Note 11 Para 6.15 above. [Back] Note 12 The defence is set out in cl 5 of the Bill. For explanation, see Appendix A paras A.61 to A.63. [Back] Note 13 Para 1.33 above [Back] Note 14 [1894] 1 QB 710. [Back] Note 15 Contrary to the Criminal Law Amendment Act 1885, s 5. [Back] Note 16 [1894] 1 QB 710, 712. [Back] Note 18 Whitehouse [1977] QB 868; Pickford [1995] 1 Cr App R 420. [Back] Note 19 Thus, the offence applied to sexual intercourse between adult brothers and sisters and to intercourse between fathers and adult daughters. See V. Bailey and S. Blackburn, “The Punishment of Incest Act 1908: A Case Study in Law Creation” [1979] Criminal Law Review 708; S. Wolfram “Eugenics and the Punishment of Incest Act 1908” [1983] Criminal Law Review 308.The offence of incest has been repealed by the Sexual Offences Act 2003. Instead, there are familial child sex offences (ss 25-29) and offences of sex with an adult relative (ss 64-65). [Back] Note 20 Contrary to what was the Sexual Offences Act 1956, s 30. [Back] Note 21 Section 5. The offence is committed if a person intentionally penetrates the vagina, anus or mouth of another with his penis. The offence is punishable by a maximum term of imprisonment for life. [Back] Note 22 Section 6. The offence is committed if a person intentionally penetrates the vagina or anus of another with a part of his body (other than his penis) or anything else. The offence is punishable by a maximum term of imprisonment for life. [Back] Note 23 Section 7. The offence is committed if a person intentionally touches another and the touching is sexual. The offence is on conviction on indictment punishable by a maximum term of 14 years’ imprisonment. [Back] Note 24 In addition, s 9 makes it an offence for a person aged 18 or over to engage in sexual activity with a child under 16. If the child is aged 13 to 15, the offence is only committed if the perpetrator does not reasonably believe that the child is 16 or over. [Back] Note 25 To add to the complexity, D and P are also guilty of the offence under section 9 of the Act, namely having sexual activity with a child. [Back] Note 26 However, like P in example 6D, she is guilty of sexual assault of a child under 13. [Back] Note 27 If Parliament had legislated on the basis that the Tyrrell exemption applied irrespective of whether D was a victim or prospective victim of the principal offence, it would have stipulated that the offence could only be committed by those aged 13 or over. [Back] Note 28 Para 2.88. Professor Glanville Williams had previously expressed similar sentiments – “Victims and other exempt parties in crime” (1990) 10 Legal Studies 245. [Back] Note 31 Para 4.99(1)(a). [Back] Note 33 Para 4.163(1)(b). [Back] Note 36 Contrary to the Sexual Offences Act 2003, s 9. [Back] Note 37 Clause 6 of the Bill. For explanation, see Appendix A paras A.64 to A.66. [Back] Note 38 Paras 4.138 and 4.166. [Back] Note 41 Examples are driving with excess alcohol or while unfit to drive through drink or drugs, contrary to the Road Traffic Act 1988, s 5; assaulting a police officer in the execution of his duty, contrary to the Police Act 1996, s 89 and threatening behaviour with intent to cause fear of immediate unlawful violence, contrary to the Public Order Act 1986, s 4. [Back] Note 43 Saunders and Archer (1576) 2 Plowd 473, 476. [Back] Note 44 Andrew Ashworth, Commentary on O’Flaherty [2004] EWCA Crim 526 [2004] Criminal Law Review 751, 752. The fact that the withdrawal is voluntary does not necessarily mean that the motive for withdrawing is honourable. [Back] Note 45 This rationale assumes that accessories are generally aware that withdrawal is a defence. [Back] Note 46 “Trying to help another person commit an offence” in P Smith (ed) Essays in Honour of JC Smith (1987) 148, 160. [Back] Note 50 “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 248. [Back] Note 51 Commentary on O’Flaherty [2004] EWCA Crim 526 in [2004] Criminal Law Review 751, 752. [Back]
