Serious Crime Bill [HL]

I agree with the noble Lord, Lord Thomas of Gresford, that the gestation which has brought about the current formulation has been long. The Law Commission has rightly lookedat this with a great deal of care and patience. The13 years—a bit longer than an elephant—which it has taken us to reach this conclusion has enabled us to come to a sound position. I agree with the noble Lord that this is not an easy matter, but we think that the rationale behind the Law Commission’s analysis bears close scrutiny, as he has done, and is sound. We concur with the Law Commission’s analysis. The whole purpose of Clause 40 was to enable us to create a new offence of encouraging and assistingan offence, because there were those who believedthat such offences would be committed. That was a mischief that had to be addressed. The clause is intended to cover a person who does an act capable of encouraging or assisting an offence by another person, believing that the other person will commit the offence and that his act will encourage or assist him, but not intending the offence to happen. Itwill, for example, cover a person who provides encouragement or assistance in exchange for payment. We will discuss that issue in more depth later. Clause 41 creates a new offence of encouraging or assisting offences believing that one or more will be committed. This offence is the one to which we have made the most changes since the Law Commission considered it. Again, we will consider that offence in greater depth in a while, but the intent is to cover a person who encourages or assists a number of offences believing that at least one of them will be committed and believing that his act will encourage or assist at least one of them to be committed. I understand the way in which the noble Lord, Lord Thomas of Gresford, described Amendments Nos. 94A and 95A and the consequential amendments. They would remove acts of encouragement from the offences in Clauses 40 and 41. It would then be an offence to encourage an offence only where a person intended the offence to happen, but not where a person only believed that an offence would happen. A person would be guilty if he provided assistance believing that an offence would be committed but would not be guilty if instead he provided encouragement. I respectfully suggest that that does not sound entirely sensible. I can see the reasoning behind these amendments. It is far more likely that a person who encourages an offence is likely to intend it to happen, but I do not think that that will always be the case. For example, D finds out that a sex offender—whom I shall refer to as X—has moved into the local area. He does not want X to live near him so he posts a message on the internet describing X and his convictions and telling him to ““get out””. D believes that this is capable of encouraging another person to attack X, but that is not his intent. Nevertheless, knowing the local area, he believes someone will attack X. D’s act is one that is capable of encouraging an attack against X. He believes that an attack will happen. This is a very important issue which the Law Commission considered carefully. Its view was that no distinction should be drawn between the acts of encouragement or assistance—I was grateful that the noble Lord, Lord Thomas of Gresford, referred to what the commission said about that—because the concepts could and would overlap. Making a decision on whether an act assisted or encouraged could involve fine distinctions. Even where an act appears to assist, it may have had an encouraging effect. Moreover, we do not think that it would be wise to rule out acts of encouragement that are not intentional. The Government believe that these offences would be useful for capturing those who encourage hate or sex offences via the internet. Traditionally, those people have been very hard to prosecute because of the need to prove that they intended to incite an offence. For example, D is a 40 year-old man using a chatroom on the internet. He starts to talk to P, who is also a 40 year-old man. P says that he has started up a friendship with a 12 year-old girl and wants to meet up with her and possibly have sex with her. D tells him a story about a young girl whom he befriended over the internet and how they had a ““relationship””. D has made the story up, but believes that it will encourage P to meet up with a young girl and rape her, although he does not intend it to happen. He cannot be said to have incited an offence, because he will claim that it was not his intent that the offence take place. Nevertheless, he believes that an offence will take place and that this act will encourage it. The Government agree with the Law Commission that this behaviour ought to be caught. For those reasons, we must resist Amendments Nos. 94A and 95A and the consequential amendments to which I referred. It is right that we have the debate. I am grateful to the noble Lord for enabling me to explain our reasoning for finding the Law Commission’s position persuasive. The commission has got it about right. It struggled for a long time and we are grateful that it has come to a view with which we feel we can concur.