Serious Crime Bill [HL]

I am distressed that the confusion has descended again on the noble Lord, Lord Henley, and I am only too happy to try to dispel it. The noble Lord will remember that in relation to Clause 41, the individual may believe that a number of offences may have been or may be committed but is unclear as to which one. Those offences may, for example, vary from a common assault to murder. The common assault would be triable summarily. If one goes up the scale to a Section 20 offence, it might be tried either way. GBH and murder are only triable on indictment. Because of the variability of the natures of those offences, we decided that it would be preferable to choose that all offences under Clause 41, where you have a more complex situation, should be tried on indictment as opposed to any other way. That provides certainty and clarity and it is likely to be the most troublesome of the three. On intent you have specificity: you can identify the intended offence. In relation to Clause 40, again it will be person D who believes that a specific offencewill be committed. Therefore, you can make a determination where it should be tried on the basis of the nature of that offence. Because in Clause 41 one has a number of offences, it would be better to choose to try them on indictment so that you have the best benchmark. This offence could be committed by D where he believes an offence will be committed, but is not sure which. That is where the complexity comes in. We just think it is safer if the offence is tried on indictment because it would give security in terms of process. I hope that is clearer than perhaps it at first appears. Shall I try again? I do not want the noble Lord, Lord Henley, not to be with us. I could not support that position. Therefore, let us go back to Clause 41 and just trip through how the clause operates. The noble Lord will remember that the Law Commission’s draft Bill originally included an offence which would impose liability on a person whose act was capable of encouraging or assisting a number of offences and where he believed that an offence would be committed, but was not sure exactly which offence would be committed. For example, D and P are friends. P is a paedophile who lives in a bail hostel and has a history of kidnap and violent offences against children. P asks D ifhe can borrow his flat for the weekend for a ““plan”” he has. He shows D a photo of a young child. When he arrives, P has a range of children’s toys with him. D believes that P will commit one or more of a number of offences in relation to a child. He thinks that any of them might be committed—kidnap, rape, a range of sexual assaults, grievous bodily harm or murder—but he may also contemplate that a common assault may occur. All are possible but he lets him use the flat anyway. P is in fact under surveillance and is arrested while walking to the flat with a young child. Which offence did D believe would be committed: one, all or any of them? We then consider Amendment No. 102 and ask: why are we choosing ““triable on indictment”” under Clause 41? We are choosing on indictment because of the spectrum of offences that might be committed. Some of them may be summary, some of them may be triable either way, some may be on indictment. So the safest place to punt, if you like, is on indictment because we know that it could be in that bracket. That is why we differentiate between Clause 40 and Clause 41 in that regard. I notice that the noble Lord, Lord Henley, is still looking confused. Unless I can assist him further, I will endeavour to write to him in a way that is clearer.