Serious Crime Bill [HL]

I am grateful to the noble Lord, Lord Henley, for the helpful way in which he has outlined his confusion and I hope to be able to explain how these offences fit together. It may be important for us to bear in mind that the Law Commission is considering the law on conspiracy this year. These clauses were recommended by the commission and it should be noted that Clauses 59 and 60 are not linked. The noble Lord, Lord Henley, asked whether there is an overlap with conspiracy. Yes, there is, and I shall try to deal with that. We felt that some of these issues could be disaggregated in the way set out by the Law Commission in these provisions, and we think that the final clauses of this part do work. Clause 59 is intended to ensure that where D ““arranges for”” an act of encouragement or assistance to be done by another person, he can be held responsible for doing that act. For example, if D1 arranges for D2 to provide a gun to P and both D1 and D2 believe that P will use it to commit an armed robbery, both D1 and D2 can be convicted of encouraging or assisting armed robbery. The Law Commission recommended this specifically, as the noble Lord indicated, to cover a gang leader who instructs those in his gang to provide encouragement or assistance, and the gang members may or may not be aware of the intended use of that assistance. The commission argued that in this situation, D1 should be guilty of encouraging or assisting the anticipated offence rather than encouraging or assisting D2 to encourage or assist P, which would then bring it within the rules of infinite inchoate liability which we discussed in Clause 44(4). The commission argued that D1’s position of power and influence means that it can properly be said that he has ““arranged for”” D2 to do the act of assistance; otherwise there may be an argument that D1 should be able to take advantage of the prohibition because it is too remote. Clause 60 makes it clear that an act includes a course of conduct. This is particularly relevant to those offences which require a course of conduct to be proved, such as those under the Protection from Harassment Act 1997. It also means that D could be liable under this part if he does a number of acts, none of which on its own would be regarded as having the capacity to encourage or assist an offence, if the cumulative effect of D’s course of conduct would be to encourage and assist and he believes that it will do so. I shall give an example. D is asked by P to provide him with a mobile phone, as he is having problems with his. He says that he does not have time to go to the shop and fill out a lot of forms. D thinks nothing of this, and provides P with the mobile phone. P then starts to ask regularly if D could provide him with mobile phones. He repeats that he does not want to go to a shop because they ask too many questions. He tells D he will pay him more than the phones are worth for his trouble. D asks his friend X whether he knows what P is doing with the mobile phones. X tells D that P is a well-known gangster and involved in a large drug-trafficking ring, and he believes that P needs the phones in order to avoid detection by the police. In deciding whether D’s conduct is capable of assisting drug trafficking and assessing whether he believed drug trafficking would be assisted, the court can look at the course of conduct in allowing the repeated use of the diverse phones. That is important, as some of those who encourage or assist crime play a minor but important role. If we want to crack down on the ways in which serious and organised criminals operate, it is important that we can criminalise this type of behaviour. It is the course of conduct that might in the final analysis demonstrate the culpability. It is for that reason that we think the way in which the Law Commission has structured the offence is correct. We are grateful to it for that, and for agreeing to carry on and consider the law of conspiracy. We agree that there could be an overlap in relation to that offence, and the commission will look at that for us. These provisions stand us in good stead and, we think, work very well in the Bill.