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The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(9) (04 July 2006)
URL: http://www.bailii.org/ew/other/EWLC/2006/300(9).html
Cite as: [2006] EWLC 300(9)

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    PART 9
    LIST OF RECOMMENDATIONS
    9.1      We recommend that there should be two statutory inchoate offences:

    (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"). (Paragraph 5.4)
    9.2          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. (Paragraph 5.11)

    9.3          We recommend 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". (Paragraph 5.22)

    9.4          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. (Paragraph 5.43)

    9.5          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. (Paragraph 5.65)

    9.6          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. (Paragraph 5.67)

    9.7          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[1] that the criminal act should be done or that a person be encouraged or assisted to do it;
    (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 and that his or her own act will encourage or assist the doing of the criminal act. (Paragraph 5.89)
    9.8      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; and
    (2) that his or her conduct will encourage or assist the doing of at least one of those acts. (Paragraph 5.94)
    9.9          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. (Paragraph 5.96)

    9.10          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; 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. D is to be assumed to be able to do the criminal act in question. (Paragraph 5.105)
    9.11          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; or
    (2) must believe that, were the criminal act to be done, it would be done in those circumstances or with those consequences. (Paragraph 5.118)
    9.12          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. (Paragraph 5.127)
    9.13          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. (Paragraph 5.128)

    9.14          We recommend that it should be a defence to a charge under clause 1 or clause 2 if D proves that:

    (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; and
    (2) it was reasonable to act as D did in the circumstances. (Paragraph 6.16)
    9.15          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. (Paragraph 6.26)

    9.16          We recommend that it should be a defence to a charge under clause 1 or clause 2 if:

    (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. (Paragraph 6.44)
    9.17          We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

    (1) doing an act capable of encouraging or assisting P to do an act capable of encouraging or assisting X to commit an offence , and
    (2) intending that P should do, or be encouraged to do, the act. (paragraph 7.16)
    9.18          We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

    (1) doing an act capable of encouraging or assisting X and P to conspire to commit an offence; and
    (2) intending that X and P should conspire, or be encouraged to conspire, to commit the offence. (Paragraph 7.21)
    9.19          We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

    (1) doing an act capable of encouraging or assisting P to attempt to commit an offence; and
    (2) intending that P should attempt, or be encouraged to attempt, to commit the offence. (Paragraph 7.24)
    9.20          We recommend that D should be guilty of one of the new offences if D knew or believed that the principal offence might be committed wholly or partly in England and Wales, irrespective of where D did the act capable of encouraging or assisting the commission of the principal offence. (Paragraph 8.18)

    9.21          We recommend that D may commit one of the new offences if :

    (1) D does an act wholly or partly within the jurisdiction capable of encouraging or assisting a person to commit what would be a principal offence under the law of England and Wales;
    (2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
    (3) the principal offence is also an offence under the law of the territory where D knows or believes that it might wholly or partly take place. (Paragraph 8.22)
    9.22          We recommend that D may commit one of the new offences if:

    (1) D does an act wholly or partly within the jurisdiction capable of encouraging or assisting a person to commit a principal offence under the law of England and Wales;
    (2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
    (3) the principal offence, if committed in that place, is an offence for which the perpetrator could be tried in England and Wales (if he or she satisfies a relevant citizenship, nationality or residence condition, if any). (Paragraph 8.24)
    9.23          We recommend that D may commit one of the new offences if:

    (1) D's conduct takes place wholly outside the jurisdiction;
    (2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
    (3) D could be tried in England and Wales if he or she committed the principal act in that place. (Paragraph 8.26)
    9.24          We recommend that, in cases where it cannot be proved that D knew or believed that the principal offence might take place wholly or partly within the jurisdiction, no proceedings may be instituted except by or with the consent of the Attorney General. (Paragraph 8.28)

    (Signed)ROGER TOULSON, Chairman
    HUGH BEALE
    STUART BRIDGE
    JEREMY HORDER
    KENNETH PARKER

    STEVE HUMPHREYS, Chief Executive

    24 May 2006

Note 1    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]

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