Inchoate Liability for Assisting and Encouraging Crime
Principle
The Governments policy on the reform of the criminal law on encouraging and assisting crime is based on the Law Commissions Report on Inchoate Liability for Assisting and Encouraging crime (Law Com No. 300, CM 6878, 2006).
Part 2 of the Serious Crime Act 2007 creates, at sections 44 to 46, three new inchoate offences of intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed.
These incitement offences will allow people who assist another to commit an offence to be prosecuted regardless of whether the assisted or encouraged offence (for example robbery) is actually committed or attempted.
The Act provides a defence to the offences in Part 2 where the encouragement or assistance is considered to be reasonable in the circumstances; and an exemption from liability where the offence encouraged or assisted was created in order to protect a category of people and the person doing the encouraging or assisting falls into that category and was the person in respect of whom the offence was or would have been committed. This would cover for example a child who encourages or assists a sexual offence of which he or she was to have been the victim.
Guidance
The offences
The Ministry of Justice Circular No. 2008/04 helpfully covers part 2 of the Serious Crime Act 2007 providing an overview of the new offences and an explanation as to the implementation of sections 44 to 67 0f the Act. The Circular should be read in conjunction with the Act.
These brief notes are to assist Crown Prosecutors and Designated Caseworkers when making decisions in respect of Part 2 of the Act to prosecute inchoate offences.
Sections 45 and 46 create new offences of encouraging or assisting an offence or offences believing it, or one or more of them, will be committed. In determining belief in Sections 45 and 46, prosecutors should refer to the case law on handling stolen goods as the test is similar.
CPS guidance on the Theft Acts, incorporating the Charging Standard states that:
Belief is something short of knowledge. Thus an accused will believe that the goods are stolen if his state of mind is such that, with the knowledge he has, there can be no other reasonable conclusion except that the property is stolen. If, despite the circumstances, the accused still refuses to believe what should be obvious, this still amounts to a belief that the goods are stolen. Suspicion that goods are stolen is not enough, even when coupled with the fact that an accused shut his eyes to the circumstances - although those matters may be taken into account by a court when deciding whether or not an accused had the necessary knowledge or belief. Mere suspicion alone is however not sufficient.
Section 48(3) ensures that a person can only be found guilty of the offence under section 46 (encouraging or assisting offences believing that one or more will be committed) if the offence or offences that the jury find the defendant believed would be committed are specified in the indictment.
Sections 49(4) and 49(5) set out that a person who encourages and assists someone else to encourage and assist a third party to carry out an offence can only be guilty of the offence under section 44, which requires that they intend that the offence be committed. They cannot be convicted of an offence under either section 45 or 46, which require only that they believed that the offence would be committed.
Part 2 of the Serious Crime Act 2007 states that an offence is committed contrary to section 49(7) where a person believes that a criminal offence would be committed if certain conditions are met. This is consistent with the current law in regard to conspiracy which allows for qualified agreements to amount to the offence of conspiracy depending upon the nature of the reservation.
Section 53 restricts the prosecution of offences triable by reason of Schedule 4. Prosecutors should remember that the Attorney Generals consent must be obtained in cases in which jurisdiction relies upon the terms of Schedule 4. See section 25 Prosecution of Offenders Act 1985. See legal guidance on Consent to Prosecute.
Section 59 abolishes the common law offence of incitement.
Relevant Links
Ministry of Justice Circular No. 2008/04
See legal guidance on Consent to Prosecute