Serious Crime Bill [HL]

I thank the noble Lords, Lord Henley and Lord Dholakia, for theway they have put their remarks. It gives me an opportunity to explain how we are taking forward the Law Commission’s report. These offences all arose from the Law Commission’s report Inchoate Liability for Encouraging and Assisting Crime, published last year. The commission is also considering the law in relation to the other inchoate offences of conspiracy and attempt and secondary liability. It is expected to publish reports later this year, which we will carefully consider. We decided to bring forward now these provisions on inchoate liability for encouraging and assisting because they stand alone and will contribute to the fight against serious crime. The Law Commission supports this move. We have discussed with it our amendments and our reasons for tabling them. It has assented to the amendments. The offences in this part apply across the whole of the criminal law and are unrelated to Part 1. They will be particularly useful in the context of serious crime. In the light of the phrasing of the amendments, I will deal with some of these issues generally so that we can look at how they fit in contextually. The new offences would apply to acts of encouragement or assistance. Currently if a person encourages or assists an offence that goes on to be committed, he can be convicted of that offence in principle. However, if the offence is not committed, he can be convicted only if he encouraged the offence, not if he assisted it. Clause 39 creates a new offence of encouraging and assisting an offence with intent. Clause 40 creates a new offence of encouragingand assisting an offence believing that it will be committed. Clause 41 creates a new offence of encouraging or assisting offences believing that one or more will be committed. A number of elements must be proved in relation to each. First, it must be proved that a person, whom I will refer to as D—I understand what the noble Lord, Lord Henley, says about that—has committed an act that is capable of encouraging or assisting another person, whom I will refer to as P, to commit an offence. We will talk about this further as we progress through the clauses in this Part. It must also be proved that D acted either intending that an offence would be committed under Clause 39 or believing that it would, or that one or more would under Clauses 40 and 41. It must also be proved that D had some awareness of P’s state of mind and any circumstances or consequences that would be required for the commission of the offence. We shall discuss that a little later. All the amendments tabled by the noble Lord, Lord Henley, appear, as he indicated, to be drafting and stylistic measures. For instance, AmendmentNo. 93 would make a minor drafting change to Clause 39(2), replacing ““But he is”” with ““A person is””. They relate to style as opposed to substance. We cannot see that those changes would make any practical difference. I do not think that the noble Lord suggested that they would. Amendment No. 99 would make a minor drafting change to Clause 43, which sets out further rules regarding what must be proved in relation to an offence under Clause 41. We shall discuss Clause 41 in a moment. It is a very detailed clause, which we must consider carefully, but for now it is sufficient for me to say that rules concerning what must be proved in relation to this offence are set out in Clause 43. Again, I cannot see that the change would make any difference to the operation of the clause. As such, for the present I resist these changes. Because they are stylistic I can, of course, raise this issue with the draftsman, but I cannot see that they would make any material difference. The same applies to Amendment No. 100. We believe that the way in which these measures are expressed will make them easier to understand. Amendment No. 100 would amend Clause 44, which sets out supplementary provisions about the offences in this part. This brings us to the issue of infinite inchoate liability or, put more simply, how far liability for inchoate offences should extend. For example, D lends a van to P, who is planning to act as X’s getaway driver in a robbery. If the robbery is committed, D can be convicted as a principal offender even though his role was of a secondary party. However, if the offence is not committed, should he be guilty of an offence even though his act is not directly linked to the commission of the offence? Clause 44(4) seeks to limit D’s potential liability. It is currently an offence to incite an incitement. The Law Commission concluded that the new offences should follow that position. At present, incitement is generally thought to require intent; therefore, D can be guilty of inciting P to incite X—staying with our example—to murder someone else only if it was D’s intention that P should incite X. The Law Commission concluded that this was a sufficiently stringent requirement to justify D incurring criminal liability and, as such, recommended that liability for encouraging and assisting other inchoate offences or statutory forms of incitement should be restricted to where D intends to encourage or assist another to commit an inchoate offence. That is an offence under Clause 39. If D gave the van to P, intending that he assist X to commit robbery, he could be guilty of an offence in this part. However, if he believed only that P would assist X to commit robbery, he would not. We believe that is a sensible way forward and have set out in Schedule 3 the offences to which Clauses 40 and 41 should not apply. These are generally statutory offences of incitement and other inchoate offences. I am considering whether further offences should be present in Schedule 3, which is drafted as suggested in the Law Commission’s draft Bill. When we were reviewing that list, we found that additions could be made and we believe that other statutory forms of incitement should be added to ensure that the list is complete. If necessary, I would seek an agreement to make any amendment on Report. We will discuss Schedule 3 in a moment. Amendment No. 100 would not alter the substance of Clause 44. I heard what the noble Lord said about ““reckoning””; it is a well understood phrase. I do not believe that the noble Lord is suggesting that it would make a substantial difference, but it has given me an opportunity right at the start of our deliberations to explain why we and the Law Commission have crafted the issues as we have. There is, as I have indicated, a slight change between the Law Commission’s draft and our own: it was in relation to D’s fault as to the consequences and circumstances from the Law Commission’s proposal. We provided that it should be possible to convict D when he has encouraged or assisted an offence intending that offence to be committed, but where he is reckless as to whether P has the necessary fault required for the offence, or whether P would operate in the required circumstances for the offence, or whether the required consequences would result. My officials have discussed this issue with the Law Commission, which supports the change. I hope that I have helped to explain why we support the Law Commission’s detailed work. I take the commission for its work in this regard.