House of Commons
Justice Committee
Post-legislative
scrutiny of Part 2
(Encouraging or
assisting crime) of the
Serious Crime Act 2007
Sixth Report of Session 2013–14
Report, together with formal minutes
Ordered by the House of Commons
to be printed 3 September 2013
HC 639
Published on 13 September 2013
by authority of the House of Commons
London: The Stationery Office Limited
£10.00
The Justice Committee
The Justice Committee is appointed by the House of Commons to examine the
expenditure, administration and policy of the Ministry of Justice and its associated public
bodies (including the work of staff provided for the administrative work of courts and
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and administration and expenditure of the Attorney General's Office, the Treasury
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Current membership
Rt Hon Sir Alan Beith (Liberal Democrat, Berwick-upon-Tweed) (Chair)
Steve Brine (Conservative, Winchester)
Rehman Chishti (Conservative, Gillingham and Rainham)
Jeremy Corbyn (Labour, Islington North)
Nick de Bois (Conservative, Enfield North)
Gareth Johnson (Conservative, Dartford)
Rt Hon Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)
Andy McDonald (Labour, Middlesbrough)
Seema Malhotra (Labour/Co-operative, Feltham and Heston)
Yasmin Qureshi (Labour, Bolton South East)
Graham Stringer (Labour, Blackley and Broughton)
Mike Weatherley (Conservative, Hove)
The following Members were also members of the Committee during the Parliament:
Mr Robert Buckland (Conservative, South Swindon); Christopher Evans (Labour/Co-operative, Islwyn);
Mrs Helen Grant (Conservative, Maidstone and The Weald); Ben Gummer (Conservative, Ipswich); Mrs
Siân C James (Labour, Swansea East); Jessica Lee (Conservative, Erewash); Robert Neill (Conservative,
Bromley and Chislehurst); Claire Perry (Conservative, Devizes); Mrs Linda Riordan (Labour/Co-operative,
Halifax), Anna Soubry (Conservative, Broxtowe); Elizabeth Truss (Conservative, South West Norfolk) and
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
1
Contents
Report
1
Page
Summary
3
Report
4
The Government’s Memorandum
Part 2 Serious Crime Act 2007 (SCA)
Background to the Act
Academic criticism
The Additional Memorandum
Purpose and effect of Part 2
Intention, belief or recklessness – mens rea
Measuring success and post-legislative scrutiny
R v Sadique [2013]
Conclusions
Appendix A - Letters from academics
4
5
6
6
9
9
9
10
11
11
14
Appendix B - Correspondence with the Lord Chancellor and Secretary of State
for Justice and Additional Memorandum
23
List of Reports from the Committee during the current Parliament
32
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
3
Summary
The Government presented its Post-legislative Scrutiny of the Serious Crime Act 2007
Memorandum to the Home Affairs Committee and Justice Committee in November 2012.
The parts of the Memorandum falling within the Justice Committee’s remit were a) Serious
Crime Prevention Orders and b) Part 2, in particular, offences of encouraging or assisting
crime in terms of prosecution and interpretation of the sections by courts and the CPS.
Upon consideration of the Memorandum we were concerned by the trenchant criticism
that Part 2 of the Serious Crime Act 2007 had received upon coming into force in 2008. In
addition, Part 2 was the subject of appeals to the Court of Appeal. We wrote to a number of
academics who had produced articles on Part 2. We requested, and received an additional
Memorandum from the Ministry of Justice responding to our concerns. Subsequently the
Court of Appeal handed down a further judgment on Part 2.
We concur with the academics who wrote to us that the sections are complex and difficult
to understand for lawyers, let alone for defendants, jurors and other lay-people working in
the criminal justice system.
Our Report raises some key concerns and questions about the purpose of post-legislative
scrutiny. We consider that where the substance of an Act or part of an Act is to create or
revise criminal offences it is appropriate for questions of a purely legal or technical nature
to be considered. We disagree with the Ministry’s conclusion that that some of the issues
raised by the Committee are solely matters for courts in their interpretation of legislation.
We accept that there are, as yet, relatively few cases, and that the latest judgment in the case
of Sadique may allow the legislation to settle into accepted use and interpretation. We
recommend that the Ministry conducts a further and full post-legislative assessment of Part
2 in 2016. If, in the meantime, the number of appeals on Part 2 increases, we expect the
Ministry to consider bringing forward legislative proposals for revising, or even replacing,
Part 2 to meet the purpose of the legislation in a less tortuous fashion.
4
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
1
Report
The Government’s Memorandum
1. The Government presented its Post-legislative Scrutiny of the Serious Crime Act 2007
Memorandum to the Home Affairs Committee and Justice Committee in November 2012.1
The parts of the Memorandum falling within the Justice Committee’s remit were a) Serious
Crime Prevention Orders2 and b) Part 2, in particular, offences of encouraging or assisting
crime, in terms of prosecution and interpretation of the sections by courts and the Crown
Prosecution Service. Part 2 of the Serious Crime Act 2007 (“SCA”) was brought into force
on 1 October 2008.
2. The Memorandum suggested that Serious Crime Prevention Orders were working
effectively; while there was much debate on the orders during passage of the legislation in
both Houses, we are not aware of any evidence which would contradict the Ministry’s
assessment.
3. As to Part 2, the Government said that there had been no reviews or select committee
enquiries into Part 2 “though there has been some interest from legal commentators”.3 The
Government concluded that Part 2 was intended to close, and had successfully closed, a
gap in the law and that use of Part 2 was increasing. The Memorandum mentioned the
2011 case of R v Sadique4 and suggested that this was a good example of the application of
the Act, in this case to disrupt businesses supporting the trade in illegal drugs.
4. When we examined the “interest from legal commentators” it was clear that the
commentators’ “interest” was in fact trenchant criticism of Part 2 of the Act. For example, a
2009 article stated:
Part 2 creates some of the most convoluted offences in decades. In addition to their
excessive complexity, we suggest that the resulting scope of liability is too broad and
creates an unwarranted incoherence and overlap with secondary liability.5
When we examined the 2011 judgment of the Court of Appeal in the case of Sadique, it was
again clear that the Court was highly critical of the provisions of Part 2. Legal commentary
on this appellate case was also critical.
1
Cm 8502
2
Serious Crime Act 2007, section 1, (in force 6 April 2008). An order imposed following conviction for a wide list of
offences, whereby the Court can impose prohibitions, restrictions or requirements upon a defendant for up to a
maximum of 5 years, where it considers that the order would protect the public by preventing, restricting or
disrupting involvement by the defendant in serious crime. E.g. restricting financial dealings, communication, travel
within or outside the UK.
3
Cm 8502 paragraph 85
4
[2011] EWCA Crim 2872. The Defendants, Sadique and Hussain, were convicted of supplying chemicals which could
be used as cutting agents to assist one or more offences of supplying or being concerned in the supply of class A or
B controlled drugs, believing that one of more of those offences would be committed and that their act would assist
in the commission of one of more of these offences. They argued that s.46 was incompatible with Article 7 of the
European Convention on Human Rights because it was too vague and uncertain. The Court of Appeal held that s.46
was neither vague nor uncertain and that the section was therefore compatible with Article 7.
5
Criminal Law Review: Serious Crime Act 2007: the Part 2 offences [2009] Crim.L.R. 389. David Ormerod and Rudi
Fortson.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
5
5. In the light of this academic and judicial criticism, we wrote on 15 January 2013 to the
academics referred to in the Government’s Memorandum, and received substantive
responses from Professor John Spencer QC LLD, Professor Graham Virgo and Dr John
Child, as well as informal responses from other academics and practitioners. We thank
them for their helpful responses and publish the substantive responses as Appendix A to
this Report. They were unanimous in their criticism of Part 2, and they considered that the
criticism of Part 2 of the Act made before it came into force had been borne out in practice.
We note, in particular, the comment made by Professor John Spencer, of the University of
Cambridge, in his letter to us:
As one of my academic colleagues said […], most of his students had struggled to
explain the ingredients of these provisions, and “I don’t know how those with less
keen minds, absolutely no legal training, and presumably limited access to textbooks
and Westlaw would fare with, in particular, s.47(5). I’ve never been cruel enough to
ask one of my non-lawyer friends to make sense of it.” And these provisions are
difficult even for lawyers. As another of my academic colleagues […] said: “Can you
imagine the task of the duty solicitor explaining these provisions to their client?”
6. We sent copies of these letters to the Lord Chancellor by way of letter dated 26 March
2013, and requested a memorandum of evidence responding to the points made in the
three letters; in particular, the points made as to unintelligibility of the provisions,
complexity of the mens rea requirements across Part 2, and concerns raised as to the effect
on the Part 2 offences of the judgment in the case of Sadique. The Lord Chancellor
responded by way of letter dated 26 April 2013 and an additional memorandum.6
Subsequently, the case of Sadique returned to the Court of Appeal,7 and a number of the
academic articles that we had considered were discussed in the Court’s judgment. This
short Report takes account of these recent developments.
Part 2 Serious Crime Act 2007 (SCA)
7. Part 2 of the SCA concerns offences of encouraging and assisting crime. Part 2 abolished
the common law offence of incitement, and replaced it with three separate offences
(emphasis added):
Section 44 – Intentionally encouraging or assisting an offence
Section 45 – Encouraging or assisting an offence believing it will be committed
Section 46 – Encouraging or assisting offences believing one or more will be committed
8. These offences are inchoate offences, where the Defendant’s (D) liability is not
dependent upon the Principal (P), and is complete as soon as D has performed his or her
act; that is, D may still be liable for committing an offence of encouraging or assisting a P,
even though P does not commit or attempt to commit the substantive offence. For
example: D encourages P to murder V. The police arrest P in connection with another
matter just as P is about to leave home to murder V. D does not incur secondary liability
6
This correspondence and additional memorandum are published as Appendix B.
7
[2013] EWCA Crim 1150, 5 July 2013
6
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
because no offence has been committed or attempted, but is guilty of one of the inchoate
offences.
Background to the Act
9. In 1987, Professor John Spencer QC LLD published an essay entitled “Trying to help
another person commit a crime”. In this essay he argued that there was a gap in the
common law of incitement, in that, whereas it was a crime (incitement at common law) to
incite P to commit a criminal offence they did not then commit, it was not a criminal
offence to facilitate an offence by providing P with equipment, information or advice,
without also encouraging (inciting) P, unless the crime envisaged was actually committed.
So, for example:
If A said to B, “Go and burgle X’s house”, A could be prosecuted for incitement,
whether B then carried out the burglary or not; whereas if A obtained for B, whom
he knew to be a burglar, a copy of X’s keys, A could not be prosecuted, unless B went
on to commit the offence, at which point A would be an accessory to B’s completed
crime.
10. Professor Spencer proposed the creation of a new offence of “facilitation”, to work in
parallel with the existing offence of incitement.8 In 2006, the Law Commission produced a
report, Inchoate Liability for Encouraging and Assisting Crime in which it proposed to fill
the gap identified by Professor Spencer by abolishing the common law of incitement, and
replacing it with a new form of composite criminal liability for “encouraging and
assisting”.
11. The Law Commission’s proposals were taken up by the Home Office, as part of its
strategy to deal with organised and financial crime. However, the SCA modified the Law
Commission’s proposals, creating three rather than two offences, and, it has been
suggested, “watering down” the required fault element, and making the bill “significantly
more complex[...and] significantly more oppressive”.9
Academic criticism
12. The criticisms of Part 2 of the Act made by Professors Spencer and Virgo and Dr Child
break down into the following topics:
a) Unintelligible – academics, practitioners and judges reported that the sections are very
difficult to interpret. In the 2011 Sadique appeal Hooper LJ commented that “the
provisions creating and defining section 46 are very complex.”10 He added that the
Court had needed extra time and further written submissions in order to try to
8
This article attracted the attention of the Law Commission, which produced a Consultation Paper in 1993 on
Assisting and Encouraging Crime in which it said this was a gap which should be filled, but no further work was
completed.
9
Spencer and Virgo, Encouraging and assisting crime: legislate in haste, repent at leisure, Arch. News 2008, 9, 7–9
10
Ibid, paragraph 33
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
7
understand how section 46 operated.11 Professor Graham Virgo said that he lectured on
this topic to law undergraduates, and that:
in my opinion, this is the worst piece of legislation to be enacted for a significant
time. The unnecessary complexity and prolixity of Part 2 makes it very difficult to
explain and to understand. A number of the students subsequently informed me
that, if they, as bright students, find it very difficult to understand the law, what hope
is there for jurors untrained in the law?12
b) Interrelation of sections – the Law Commission’s original proposal was adapted by the
then Government and turned from two into three statutory sections. However, the
individual sections cannot be interpreted on their own.13 In order to understand section
46, for example, the Court of Appeal in Sadique in 2011 and 2013 had to interpret
sections 47-58 and 64-67. The three main sections do not contain all the basic
information to interpret the actus reus14 or mens rea15 elements.
c) The mental element - mens rea – Dr Child pointed out that inchoate offences are
necessarily more complex in terms of the mens rea element of the offence, than normal
offences:
This is because D must perform the actus reus (assist or encourage) with certain
mens rea both as to his own acts as well as certain mens rea as to the future acts of
another (P). Indeed, in the context of two party offences (such as assisting and
encouraging) D must also have a certain mens rea in relation to the mens rea of P.
Such complexity is unavoidable if we wish to have a statute capable of setting out the
full requirements of the offence, an approach that I firmly support.
However, as Dr Child and the other academics point out, the SCA drafting has actually
increased the inherent complexity of inchoate offences. Under the SCA, D must intend
(s.44) or believe (s.45-46) the act element of the future offence, but this is merely the
use/hitting of the hammer. In contrast, D need only be reckless as to whether P will
damage property (result/consequences element) and whether that property will belong to
another (circumstance element). Professor Ormerod and Rudi Fortson QC discuss this in
their 2009 Criminal Law Review article. They suggest that:
Crucial to understanding the operation of the offences is a recognition that the
traditional interpretative tools of actus reus and mens rea will prove inadequate. Each
offence must be analysed having regard to one or more of three external elements of
11
Spencer and Virgo, Encouraging and assisting crime: legislate in haste, repent at leisure, Arch. News 2008, 9, 7–9,
paragraph 33
12
Letter to the Committee from Professor Virgo, 6 February 2013
13
See also, Ormerod and Fortson, Criminal Law Review, Serious Crime Act 2007: the Part 2 offences [2009] Crim.L.R.
389
14
Actus reus – an act (or sometimes an omission or state of affairs) indicated in the definition of the offence charged
together with: (1) any consequences of that act which are indicated by that definition; and (2) any surrounding
circumstances so indicated (other than references to the mens rea or element of negligence required on the part of
the defendant, or to any defence), Halsbury’s Laws of England.
15
Mens rea – the “mental element” of a crime. The defendant commits an act with the requisite mental element, that
is that the defendant acted: with intent, recklessly, maliciously, wilfully, knowingly, or with knowledge or belief.
Each expression is capable of bearing a different meaning to the other expressions. Halsbury’s Laws of England.
8
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
the actus reus of the offence D anticipates P will commit, namely, (i) conduct, (ii)
circumstances, and (iii) consequences. (...)D's liability will turn on whether he has the
distinct specified mens rea for each of these three separate elements of P's anticipated
crime (s.47(5)(b)). (...) D must be proved to have mens rea (but not necessarily of the
same type) in respect of each of those elements. But, not all offences subdivide so
easily and, of course, not all offences have all three elements.
Applying this to a section 46 “one or more offence” case leads to the following analysis,
which shows both the variety and difficulty of understanding and applying the different
types of mental element; we bear in mind that often it will be a jury who must understand
and apply these sections. D will be liable if:16
i.
D supplies a hammer which is capable of encouraging or assisting the commission
by P of one or more of a number of offences (for example, criminal damage,
assault, burglary); and
ii. D believes that his act of supplying the weapon to P will (not might) encourage or
assist the commission of at least one of those offences; and
iii. Although it cannot be proved that D had a belief or intent as to which one will be
committed, it can be proved that D believes that one or more such offences will
(not might) be committed; and
iv. D believes or is reckless as to whether when P is to perform the conduct element of
the offence (hitting the window with the hammer) P will do so with the mens rea
required for that offence (or D’s state of mind is sufficient itself if it is such that
were he (D) to do it, it would be done with the fault required); and
v. D believes or is reckless as to whether, were P to perform the conduct element of
the offence, P would do so in those circumstances (window belonged to another)
or with those consequences (window is damaged) if any of which the anticipated
offence requires proof.
d) Sadique [2011] – Academics were very critical of the Court of Appeal’s 2011 judgment
in this case which provided (obiter17) an interpretation of s.46. They suggested that,
although the Court was trying to complete an exceptionally difficult task, the Court
confused the mens rea requirements, and (as per Professor Virgo) rendered s.46
obsolete. Professor Spencer suggested that the 2011 Sadique judgment rendered the
conviction in the case of Blackshaw18 questionable.
e) Plugging the gap in the law – Professor Spencer suggested that the Sadique judgment
showed that the gap in the law he identified had been filled, but he did not think that
this could be considered a success:
16
Adapted from Ormerod and Fortson, Criminal Law Review, Serious Crime Act 2007: the Part 2 offences [2009]
Crim.L.R. 389, 401
17
See paragraph 5, Sadique [2013] EWCA Crim 1150: “this analysis was not necessary for the decision...”
18
R v Blackshaw and others [2011] EWCA Crim 2312 – Facebook postings encouraging rioting. Mr Blackshaw pleaded
guilty to offences falling under section 46 SCA, his sentence of four years imprisonment was upheld. A press
summary is available: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/r-v-blackshaw-summary.pdf
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
9
the complexity and obscurity of the provisions make it impossible to say that they
have plugged the gap “successfully”. [...] they are the legislative equivalent of the
nursery rhyme about the Old Lady Who Swallowed a Fly – and then swallowed a
spider to catch the fly, then swallowed a bird to catch the spider, and so on...19
13. The letters we received suggested the need for a complete repeal and replacement of
these sections. Although Dr Child suggested restructuring the sections, the extent of
restructuring that he suggests would, in effect, be a substitution of Part 2.
The Additional Memorandum
Purpose and effect of Part 2
14. The letter from the Lord Chancellor of 26 April 2013, which accompanied the
Additional Memorandum stated:
Part 2’s purpose and effect and explanation of the various provisions were set out in
detail by the previous Government’s Ministers in debates during passage of the Bill
and in accompanying documents.20
15. Part 2 was the subject of debate at Committee stage in the House of Lords, although
the points raised by academics were not debated. In the House of Commons, Part 2
received less debate in the Public Bill Committee on 3 July 2007, where clauses 41,21 4222
and 46 were the subject of debate, however, clauses 4323, 4424 and 45 were not; this led Rt
Hon Douglas Hogg MP to comment in Committee:
I suspect that the Minister is very glad to have passed over clause 4425 without a
debate, as we all are. I do not think that any of us really understood it, and she would
have had to make a reasoned response. She must be relieved, as indeed am I.
Intention, belief or recklessness – mens rea
16. The Additional Memorandum discusses the comments made by academics in relation
to the mens rea (mental element) required for the different sections: “the Government
decided not to lower the mental element for the offences below belief or to have liability
relate to criminal activities rather than specific offences”.26 The Additional Memorandum
refers the Committee to the Impact Assessment for the Serious Crime Bill (Annex B of the
Additional Memorandum), and explains that the Government made changes to the Law
Commission’s suggested draft in order to ensure that: the required mental element was not
19
Letter from Professor John Spencer QC LLD to the Committee dated 15 February 2013.
20
Letter from the Lord Chancellor to the Committee dated 26 April 2013.
21
Now section 44
22
Now section 45
23
Now section 46 (and the subject of appeal in the case of Sadique).
24
Now section 47
25
Ibid.
26
Additional Memorandum, paragraph 8.
10
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
lower than “belief”; and liability would relate to specific offences, not simply criminal
activity.
17. The offences within s.44-46 set out D’s mens rea as to the future offence assisted or
encouraged in general terms of intention or belief. However, as stated by Dr Child, “despite
the language of the previous sections, s.47 states that most elements of the future offence
will only require recklessness and that intention and belief are only necessary in relation to
P’s ‘doing of an act’.”27 This lowers, or waters down28 the level of mens rea required by D.
18. The Ministry’s assertion that the Government did not lower the mental element below
belief would therefore appear mistaken, when sections 45 and 46 are read, as they are
required to be, with section 47.
Measuring success and post-legislative scrutiny
19. The Ministry of Justice supplied us with the tables at Annexes A and C of the
Additional Memorandum (which we publish) showing increasing reliance on the Part 2
offences,29 in particular the number of section 46 offences charged (on its own, or in
conjunction with section 58), although it is not yet clear whether this is matched by
convictions. We note that the increasing use of Part 2 may be partly the result of increasing
confidence and knowledge about the offences by the CPS, and we have heard anecdotal
suggestions that these sections were used extensively following the London riots of 2011.30
20. There are caveats to the figures. One caveat is that the number of defendants found
guilty in a particular year may exceed the number proceeded against as the proceedings in
the magistrates' court took place in an earlier year and the defendants were found guilty at
the Crown Court in the following year; or that the defendants were found guilty of a
different offence from that for which they were originally proceeded against. A second
caveat is that the figures relate to persons for whom these offences were the principal
offence for which they were dealt with, and therefore where a defendant has been found
guilty of more than one offence it is the offence for which the heaviest penalty is imposed
that is recorded. Nonetheless, even with these caveats, there does appear to be a
discrepancy between the number of defendants proceeded against and the number found
guilty.
21. The Ministry’s focus is on prosecuting cases and achieving convictions. It states in the
Additional Memorandum that it is debatable whether complexity can be avoided in
legislation and that some matters “ while of great interest to us, are matters for the courts
for authoritative interpretation of the law once legislation has been enacted by Parliament
rather than for Government.”31. The Ministry also said:
27
Emphasis added.
28
Spencer and Virgo, Encouraging and assisting crime: legislate in haste, repent at leisure, [2008] Arch. News 7, 9.
29
The statistics cover the number of offenders cautioned, defendants proceeded against at magistrates’ courts, and
offenders found guilty and sentenced at all courts under Sections 44–46 of the Serious Crime Act 2007, in England
and Wales, for the period 2008 to 2011.
30
For example, letter from Professor Graham Virgo.
31
Additional Memorandum paragraph 15.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
11
We recognise that discussion on the interpretation and necessity of the legislation
continues, and that views vary. With such complex legislation there will be areas
where there may be differences of opinion on meaning or whether the approach used
was the best option. There was a great deal of careful consideration by the Law
Commission, Government and Parliament at the time the provisions were being
developed and we recognise that there could be a risk of legislation being overengineered by the depth of this process. From time to time the courts or the CPS may
need to clarify matters in judgments or guidance; exceptionally a problem with the
law requiring correction may be identified – to date we are unaware of any need to
do this for Part 2.32
22. The Ministry considers that the aim of Part 2 of the Act was to “close a gap in the law,
particularly evident in relation to serious crime.” and that this has been achieved.
R v Sadique [2013]
23. Professor Virgo suggested that the Court of Appeal’s judgment in the 2011 case of
Sadique rendered s.46 obsolete. In contrast, the Ministry considered that Sadique, as
interpreted and transferred into CPS Guidance, had made the law clearer.
24. As stated above, between the provision to us of the Additional Memorandum and the
drafting of this Report, the case of Sadique returned to the Court of Appeal.33 The Court of
Appeal in 2013 again reviewed all of the relevant sections of the SCA in order to provide an
interpretation of section 46. The Court of Appeal also referred, with approval, to the
articles mentioned, but not discussed, in the original post-legislative Memorandum,
describing the concerns raised as prescient, before going on to agree with Professor Virgo’s
analysis of the 2011 Court of Appeal judgment.34 We note, in passing, that much of the trial
judge’s and therefore court time, was taken up trying to translate the statutory sections into
a lawful indictment. The Court of Appeal commented that:
It may well be that the common law offence of inciting someone else to commit an
offence was less complex. It may equally be that the purpose of the legislation could
have been achieved in less tortuous fashion.35
Conclusions
25. Our consideration of the original Memorandum and Additional Memorandum
raises some key concerns and questions about the purpose of post-legislative scrutiny,
and how that purpose is to be effected by both the Government and Parliament.
26. We expect the Ministry to consider the effect of the Court of Appeal’s 2013
judgment in the case of Sadique upon its analysis of Part 2 of the SCA. In the light of
this fresh judgment (upon which, at the time of preparing this report, there were no
32
Additional Memorandum paragraph 5.
33
[2013] EWCA Crim 1150. The explanation for the case returning to the Court of Appeal on the basis of the
interpretation of section 46 is given at paragraph 5.
34
Ibid, paragraphs 16 to 20.
35
Ibid, paragraph 30.
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
academic articles), we make no conclusions or recommendations in relation to the
contents of Part 2, save that we concur with the academics who told us that the sections
are complex and difficult to understand for lawyers, let alone for defendants, jurors and
other lay-people working in the criminal justice system. We consider that the Court of
Appeal’s use of the word “tortuous” in the 2013 Sadique judgment is entirely apt to
describe the complexity and prolixity of Part 2 of the SCA.
27. The Law Commission concluded in its Post-Legislative Scrutiny report36 that for the
purpose of its report:
we understand post-legislative scrutiny to refer to a broad form of review, the
purpose of which is to address the effects of the legislation in terms of whether the
intended policy objectives have been met by the legislation and, if so, how effectively.
However this does not preclude consideration of narrow questions of a purely legal
or technical nature.
28. We consider that where the substance of an Act or part of an Act is to create or
revise criminal offences it is appropriate for questions of a purely legal or technical
nature to be considered. Where, as here, it is not clear that the aim of the legislation has
been met in the drafting of the relevant sections, or that the sections have been strongly
criticised post Royal Assent, or that such criticisms are being raised in appellate decisions,
then it is appropriate for the relevant department to consider within its post-legislative
memorandum whether the drafting of the Act is defective. If so, it may not be possible for a
court simply to interpret the legislation consistently with the original aim, and the
particular Act could be a prime candidate for amendment, which is a matter for the
Government and Parliament. We disagree with the Ministry’s conclusion that some of
the issues we have raised are solely matters for the courts in their interpretation of
legislation.
29. The analysis of the legal commentary on the SCA and case law provided by the
Ministry in its original Memorandum was poor and misleading. There was a failure
properly to describe the criticism or engage with the arguments, despite such
arguments then being raised in the Court of Appeal. The analysis provided by the
Ministry in the Additional Memorandum was much clearer and of good quality,
although we disagree with some of the conclusions.
30. Select Committees must be able to rely upon the accuracy and comprehensiveness
of post-legislative assessment Memoranda; Committees are not resourced to complete
their own full scale analysis of all subjects covered by a memorandum. Without full and
correct analysis, whether legal or economic or of another specialism, Committees may not
be made aware of problems with existing legislation. This could cause a level of
disconnection between, for example court judgments explaining that problems exist with a
piece of legislation, and Parliament which alone has the ability to legislate to remedy the
defects. We believe that the Ministry of Justice is taking an excessively narrow view of
the purpose of the post-legislative assessment and scrutiny process in this instance.
36
Law Commission paper No. 302
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
13
31. In relation to the SCA, as stated above, we are concerned about the complexity of the
provisions, and the difficulties that academics, lawyers and judges have found in
interpreting the provisions. At the same time, we accept that there are, as yet, relatively few
cases, and that the latest judgment in the case of Sadique may allow the legislation to settle
into accepted use and interpretation. We recommend that the Ministry conduct a further
and full post-legislative assessment of Part 2 in 2016. If, in the meantime, the number of
appeals on Part 2 increases, we expect the Ministry to consider bringing forward
legislative proposals for revising, or even replacing, Part 2 to meet the purpose of the
legislation in a less tortuous fashion.
32. We are sending a copy of this report to First Parliamentary Counsel as it appears to
us to be highly relevant to the Office of the Parliamentary Counsel’s “good law”
initiative.
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Appendix A - Letters from academics
Letter dated 15 February 2013 from Dr J. Child, Senior Lecturer in Law, to the Chair of the
Committee
Background: During 2006–07, I worked as a Research Assistant in the Criminal Law Team at the Law
Commission. During this time, I worked on the ‘assisting and encouraging’ project. Since the coming into
force of the Serious Crime Act 2007, I have presented at conferences on several related aspects and written a
number of academic papers. These include:
•
•
•
•
Child, Structure, coherence and the limits of inchoate liability: the new ulterior element
(forthcoming);
Child and Hunt, 'Mens rea and the general inchoate offences: another new culpability framework'
(2012) Northern Ireland Legal Quarterly, 245;
Child, 'Exploring the mens rea requirements of the Serious Crime Act 2007 assisting and
encouraging offences' (2012) Journal of Criminal Law, 220;
Child, ‘The differences between attempted complicity and inchoate assisting and encouraging – a
reply to Professor Bohlander’ (2010) Criminal Law Review, 924.
Contents: Below I have provided sketched answers to the questions asked. If I can provide any further
assistance, in any form, please do not hesitate to ask.
Q1
Have the concerns about the drafting and comprehensibility of Part 2 of the Serious Crime Act
2007 that you and a number of academics raised at the time of the Act came into force (and
referred to in the Memorandum), been borne out in practice?
1. Yes, although we still have very little case law, the early indications are that such concerns are well founded.
These concerns chiefly relate to the mens rea requirements of the Part 2 offences. This is evident from:
a. Judicial comments in R v S&H relating to complexity. For example, paragraph 33, where Hooper LJ
also points out the resultant need to extend the oral hearing as well as to request additional written
comments;
b. More importantly, it is evident from the court’s misinterpretation of the law (despite the extra time
taken). See answer to question 6;
c. I might also include the general confusion caused when trying to explain the Act to law students, and
even other academics (including specialists in other areas of the criminal law and criminal lawyers in
other jurisdictions).
2. General inchoate offences are always going to include a degree of complexity when drafting, particularly in
relation to mens rea. This is because D must perform the actus reus (assist or encourage) with certain mens rea
both as to his own acts as well as certain mens rea as to the future acts of another (P). Indeed, in the context of
two party offences (such as assisting and encouraging) D must also have a certain mens rea in relation to the
mens rea of P. Such complexity is unavoidable if we wish to have a statute capable of setting out the full
requirements of the offence, an approach that I firmly support.
3. However, certain complexities within Part 2 are avoidable:
a. The worst aspect of the Part 2 offences, not present within the Law Commission draft bill, is the
required interplay between s.44-46 and s.47. The offences within s.44-46 set out D’s mens rea as to
the future offence assisted or encouraged in general terms (e.g. ‘he believes that the offence will be
committed’; ‘he intends to assist or encourage its commission’). However, within s.47 we are then
told, despite the language of the previous sections, that most elements of the future offence will only
require recklessness and that intention and belief are only necessary in relation to P’s ‘doing of an
act’.
b. The second area of avoidable complexity lies in the policy of varying the mens rea required of D in
relation to the distinct elements of P’s future offence. This is a change from the old common law of
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
15
incitement that simply required D to act with the intention that the offence assisted or encouraged
would be committed. The policy choice to expand liability beyond intention is not a matter for postlegislative inquiry, simply harking back to long run debates. However, it is my view that varying
mens rea between elements not only creates added complexity, but it is also not conceptually sound
(see question 4 below). It is therefore my view that if the offence is intended to target D that assists or
encourages P reckless as to the chance of P committing the offence assisted or encouraged (which
seems to be the general thrust of the SCA), then this is how the offences should be drafted.
4. As final comment, it is interesting that the offences under Part 2 are slowly being used more regularly (Para
52 of the Memorandum). It was thought by some that the complexity would lead to prosecutors not using the
legislation at all. However, with the great breadth of these offences (allowing liability where D foresees a risk of
a future offence rather than intends it) it was always likely to prove appealing to prosecutors as they got used
to it. However, so that the offences are applied properly and consistently, I still believe work is required.
Q2
What is your view on the Government’s assertion (at paragraphs 95 and 96 of the Memorandum)
that Part 2 of the Act “successfully closed” a gap in the law that impeded prosecution of those who
sought to assist the commission of offences which did not in fact go on to be committed?
5. It is clear that the new offences extend to D that assists as well as encourages P to commit an offence.
However, in terms of catching conduct that would not otherwise have been criminal, the gap closed is not a
significant one. This is because it is difficult to think of an act of assistance that could not also be construed as
encouragement. For example, the memorandum discusses the lending of a car for an armed robbery [13] as
assistance, but surely the receiving of such a car will also embolden and encourage P to carry out the offence.
The only example I can think of where D assists without encouraging is where P has no knowledge of the
assistance, e.g. where D repairs and replaces P’s broken gun without P realising it was broken. This is a very
small gap.
6. However, it is likely that the explicit extension of the law to include assisting will give rise to several
important practical benefits:
a. Simplification – it is now clear that assisting is included. This provides a clear message both to the
public (in terms of fair warning and deterrent), as well as to prosecutors (that may be otherwise
reluctant);
b. Consistency – just as D becomes an accomplice when he assists or encourages P who goes on to
commit the offence assisted or encouraged (aided, abetted, counselled or procured), it is now clear
that such conduct will also give rise to preliminary inchoate liability;
c. Fair labelling – just as we might claim that all assistance will also constitute encouragement, so the
same could be said about the act of agreement and conspiracy. However, just as I believe that a
separate offence of conspiracy is appropriate in terms of fair labelling, I believe the same in relation
to assisting.
Q3
Are there any particular case-law examples of which the Committee should be aware?
7. The Law Commission give a couple of examples of cases where a charge of assistance would have been
appropriate, but alternative offences were employed in a manner that distorted their operation. For example,
Anderson [1986] AC 27, where conspiracy was charged. Law Commission, Inchoate liability for assisting and
encouraging crime (Law Com No. 300, 2006) [3.12-14].
8. Aside from this type of example, I am not aware of any case law that is particularly relevant.
Q4
Are there any points of principle that you would like to draw to the Committee’s attention, in
particular, points the Committee could usefully consider if it decides to undertake post-legislative
scrutiny?
9. There are two points of principle that I would like to highlight:
a. I do not believe that the level of D’s mens rea for the offence assisted or encouraged should vary
between the elements of that offence. If it is enough for s.44-46 that D is merely reckless as to
whether the circumstances of the future offence, the results of that offence and the mens rea of P will
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
b.
c.
Q5
all be satisfied, why should we require intention or belief as to the relatively insignificant act element?
For example, if D lends P a hammer this is capable of assisting or encouraging criminal damage.
Under the SCA, D must intend (s.44) or believe (s.45-46) the act element of the future offence, but
this is merely the use/hitting of the hammer. In contrast, D need only be reckless as to whether P will
damage property (result element) and whether that property will belong to another (circumstance
element). The point here is that having introduced a highly complex structure, requiring the
separation of elements, there is little or no pay off. First, if the act element is to deserve separate
treatment, it must be clear why. Such an explanation is lacking (Child and Hunt, 'Mens rea and the
general inchoate offences: another new culpability framework' (2012) Northern Ireland Legal
Quarterly, 245). Secondly, as almost every part of D’s mens rea can be satisfied by recklessness, surely
it is better (certainly clearer) to express the offence in those terms (Child, 'Exploring the mens rea
requirements of the Serious Crime Act 2007 assisting and encouraging offences' (2012) Journal of
Criminal Law, 220).
There is an omission in the SCA that only became apparent during the Law Commission’s paper on
complicity: where D procures an offence that is not later completed by P. Procuring relates to
conduct that does not assist or encourage, but causes P to commit an offence. A classic example is
where D spikes P’s drink with alcohol, causing P to commit an offence when he later drives
(unknowingly) over the proscribed limit. Where P completes the offence, D will be liable as an
accomplice. However, where P does not complete the offence it seems that there will be no inchoate
liability under the SCA. The problem with applying the terms ‘assisting’ or ‘encouraging’ to this type
of conduct is discussed in Law Commission, Participating in crime (Law Com No. 305, 2007) Part 4.
I have a third principled concern relating to the expansion and operation of double inchoate liability
(e.g. assisting P to assist X to commit an offence). This is explored in Child, Structure, coherence and
the limits of inchoate liability: the new ulterior element (forthcoming). However, as this relates to the
policy choice of expanding such liability, it may be outside the scope of post-legislative scrutiny.
What amendments, if any, would you suggest to the wording of the sections in Part 2 of the Act,
and why?
10. Most importantly I believe that the structure of the SCA should be changed. Where a statutory section
claims to define an offence, that section must include all of the basic actus reus and mens rea elements. This
requires breaking up s.47 in particular and adding parts of it (where relevant) to s.44-46.
11. I also believe that the names of the offences should be changed. To label s.44 ‘Intentionally encouraging or
assisting an offence’ and s.45 ‘Encouraging or assisting an offence believing it will be committed’, where the
actual requirements of intention and belief are so minor, is to mislead the court and mislabel the convicted.
12. From here, I would advocate the changes already discussed:
a. Simplifying the offences with a single coherent requirement of mens rea, whether this is set at
recklessness or any other.
b. Adding an inchoate offence of ‘causing others to commit’ as a precursor to accessorial procurement.
Q6
In your opinion, has R v S and H clarified s.46?
13. R v S&H clarified several aspects of the offence relating to actus reus. However, it has not clarified the
complex area of mens rea that it attempted to, and in many ways the misinterpretations of the court are likely
to make the situation worse.
14. The case is fully discussed in Child, 'Exploring the mens rea requirements of the Serious Crime Act 2007
assisting and encouraging offences' (2012) Journal of Criminal Law, 220.
a. As explained in this paper, it is likely that the court’s misinterpretation was caused because of the
complexity of the SCA, and the courts resorting to the Law Commission’s Report for assistance. As
the Commission’s recommendations were not implemented without significant amendment, the
Court’s use of the report was not well advised.
15. The central points of the Court’s misinterpretation can be set out using their attempted summary of the
law in paragraph 87 of the judgement. It states the mens rea required for s.46:
a. ‘D believes that [offence] X will be committed, or D believes that one or more … will be committed
but has no belief as to which.’ Although this reflects that language of s.46, s.47(4)(a) makes clear that
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
b.
c.
Q7
17
belief is only required as to the ‘acts’ of such offences. In relation to the circumstances and results,
only recklessness is required (s.47(5)(b)).
‘D believes that his act will encourage or assist the commission of [offence] X’. Here again, although
this in implied from s.46, it is clear from s.47(4)(b) that D need only believe that his act will assist the
doing of an ‘act’ and not necessarily the full offence.
‘D believes that [offence] X will be committed with the necessary fault for X.’ This is plainly false.
Section 47(5)(a) makes clear that recklessness will suffice.
Is there academic consensus on the interpretation of s.47(8)(c)?
16. I don’t believe there has been much comment on this sub-section.
17. Section 47(8) is discussing the future actions of P that must be intended (s.44) or believed (s.45-46) by D.
a. Section 47(8)(a) is clear – D will still be liable where P’s intended or believed act is an omission, e.g.
encouraging P to omit to provide a breath sample to police when pulled over;
b. Section 47(8)(b) is clear – D will still be liable where P’s intended or believed act is part of a
continuing act, e.g. encouraging P to keep holding V’s head under the water;
c. Section 47(8)(c), however, is ambiguous:
i.
For D to intend or believe that P will attempt, rather than act, D must be aware that P is
unable to act or is likely to fail. However, in such circumstances D will be liable for assisting
or encouraging an attempt, and this seems to be ruled out by the exception: ‘except an act
amounting to the commission of the offence of attempting to commit another offence’.
ii.
Therefore, if the subsection does any work, it must be applying to cases where D intends or
believes that P will attempt to act, but that attempt will fall short of a criminal attempt. This
would be the case if D intends/believes that P will not go beyond mere preparation.
However, there is little need or justification for this type of extension to the law.
iii.
A further possibility may be that the drafting of the statute has confused the actions of P
with the actions of D.
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Letter dated 15 February 2013 from Professor John Spencer, QC LLD, to the Chair of the
Committee
Thank you for the invitation to comment on these provisions. I am glad to accept because I think they are blot
on the face of the law and I feel a sense of personal responsibility as the person who originally pointed out the
gap in the pre-existing law which they were designed to fill.
Preface
In 1987, I contributed to a book of essays in honour of J. C. Smith an essay entitled “Trying to help another
person commit a crime”. In this essay I said it was odd that, whereas it was a crime (incitement at common
law) to incite a person to commit a criminal offence they did not then commit, it was not a criminal offence to
provide a person with equipment, information or advice unless the crime envisaged was actually committed.
In this article I proposed the creation of a new offence of “facilitation”, to parallel the existing offence of
incitement.
This article attracted the attention of the Law Commission, which produced a Consultation Paper in 1993 on
Assisting and Encouraging Crime in which it said this was a gap which should be filled. There the matter
rested for 13 years until, in 2006, the Law Commission produced a Report in which it proposed to fill the gap
not by creating a new offence to run alongside the crime of incitement, but a much more complicated reform:
the abolition of incitement, and its replacement with a new form of composite criminal liability for something
called “encouraging or assisting”.
My heart sank when I saw this. First, nothing much seemed to be wrong with the existing crime of incitement,
which everyone knew and understood, and I saw no sense in abolishing it, when creating a new parallel
offence of facilitation would have done the job more simply. Secondly, even if the creation of an entirely new
offence was the sensible way to approach the problem, the Law Commission’s proposal seemed to be
needlessly complicated, with one offence of assisting or encouraging a particular crime and a second offence
of assisting or encouraging two or more different ones. Thirdly, the Draft Bill which accompanied the Report
was expressed in language which seemed to me to be needlessly difficult.
My heart sank further when, a few months after the Report was published, I heard that the Government had
decided to enact the Law Commission’s scheme and also saw the terms of the relevant parts of the Bill, which
further complicated the Law Commission’s scheme by adding a third offence to supplement the two they had
proposed, and by lengthening and rearranging the text, thereby making the resulting legislation even more
opaque, long-winded and difficult to follow. As I said in an article ([2008] Archbold News 9, 7-9) I later jointly
wrote with Graham Virgo about these clauses when they had become law,
As the person who in 1987 identified the gap in the law that this legislation seeks to fill, the first
author ought to be gratified that it has done so. But when he looks at this new law he feels, alas, like a
man who learns in later life that the consequence of an unwise youthful one-night stand has been the
birth of a juvenile delinquent.
Your questions
Q1
Have the concerns about the drafting and comprehensibility of part 2 of the Serious Crime Act
2007 that you and a number of academics raised at the time the Act came into force […] been
borne out in practice?
In my view, yes. Before writing this letter I emailed my Cambridge colleagues who, like me, teach criminal
law. Five of them told me how complicated and difficult they find these provisions, as do inevitably their
students a fortiori. This confirms my own experience as a teacher.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
19
More pertinently to your question, I heard similar views from a judge who had had to cope with them. The
Court of Appeal’s evident difficulties in construing the provisions in Sadique further bear this out. One of
those who commented on the Sadique case is James Richardson, QC – not an academic, but a practitioner
who is the senior editor of Archbold, which is the leading practitioners’ text. In his note in [2012] Criminal
Law Week 6 he began by saying “The provisions of Part 2 of the 2007 Act are notoriously difficult” and
concluded by saying “It is a one-way bet that this is not the last word on these provisions”.
Q2
What is your view on the Government’s assertion … that Part 2 of the Act “successfully closed” a
gap in the law that impeded prosecution of those who sought to assist the commission of offences
which did not in fact go on to be committed?
It has plugged the gap that I pointed out in my article in 1987. The defendants in Sadique were eventually
convicted, as they deserved to be, and I doubt whether they could have been under the law as it was before
Part 2 of the SCA 2007 came into force. (Though I suspect the defendant in Blackshaw [2011] EWCA Crim
2312, the other well known case, could have been convicted of incitement to riot.)
But in my view the complexity and obscurity of the provisions make it impossible to say that they have
plugged the gap “successfully”. In my view, they are the legislative equivalent of the nursery rhyme about the
Old Lady Who Swallowed a Fly – and then swallowed a spider to catch the fly, then swallowed a bird to catch
the spider, and so on until (rather topically, as it happens!) she eventually swallowed a horse. Faced with some
solutions, it might be better to endure the problem.
Q3
Are there any particular case-law examples of which the Committee should be aware?
Like Professor Virgo (whose letter I have seen) I am unaware of any significant cases other than Sadique and
Blackshaw.
Q4
Are there any points of principle that you would like to draw to the Committee’s attention, in
particular, points that the Committee could usefully consider if it decides to undertake postlegislative scrutiny?
Yes. The principle that legislation ought to be written in language that is easily intelligible.
This principle is particularly important when comes to legislation that creates criminal offences, because here
the “consumers” who have to apply it include not only trained lawyers but also police officers, lay magistrates
and even members of the general public. Viewed from this perspective, these provisions are not fit for
purpose.
As one of my academic colleagues said in response to my email, most of his students had struggled to explain
the ingredients of these provisions, and “I don’t know how those with less keen minds, absolutely no legal
training, and presumably limited access to textbooks and Westlaw would fare with, in particular, s.47(5). I’ve
never been cruel enough to ask one of my non-lawyer friends to make sense of it.” And these provisions are
difficult even for lawyers. As another of my academic colleagues who responded to my email said: “Can you
imagine the task of the duty solicitor explaining these provisions to their client?”
Q5
What amendments, if any, would you suggest to the wording of sections in Part 2 of the Act, and
why?
Repeal the whole thing, and start again. They are so bad that they are beyond improvement.
They should be replaced by:
(i) a simple provision codifying the common law of incitement. (Clause 47 of the Law Commission’s
Draft Criminal Code of 1989, which is conveniently clear short, could be useful starting-point);
(ii) a simple provision creating a parallel offence of facilitation.
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Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
If time permitted (which at present it does not) I would attempt to produce a draft. But in outline, I would
draft the new offence in terms that are concrete rather than abstract, and with that in mind it would begin by
saying “A person commits the offence of facilitation if he provides or offers to provide another person with
equipment, information, advice or any other kind of assistance, intending, knowing or believing that it will be
used for the commission of a criminal offence.” To avoid the need for a “double-barrelled” offence like section
46 SCA, it would include a procedural provision to the effect that a charge or indictment for facilitation must
specify the offence or offences which the defendant intended, knew or believed that he would help; but that it
should not be a defence for him to show that the offence he intended, knew or believed he would be helping
was a different one if it carried the same or a higher maximum penalty. It should make it clear (as was clear
with the common law offence of incitement) that the prosecution do not have to prove the identity of a person
facilitated, so that “general facilitation” – like selling “black boxes” to make electricity meters run backwards –
is covered. And for simplicity, I think the offence should be punishable with a single maximum penalty,
irrespective of the penalty applicable to the “target offence”. This penalty need not, in my view, be particularly
high – bearing in mind (a) that if the “target offence” has actually been committed, the defendant can be
prosecuted as an accessory to that and (b) the facilitation of very serious offences, e.g. those involving
explosives, will nearly always involve the commission of some other serious offence along the way.
I would also make it plain that the new offence (and indeed the codified offence of incitement) can be
committed even where the “target offence” is impossible.
(Incidentally, one of the criticisms of the offences in Part 2 of the SCA is that, despite their length and
complexity, they leave the “impossibility problem” unresolved. If the Part 2 offences were retained rather than
replaced, they should be amended to take account of this.)
Q6
In your opinion, has the case of R v S and H clarified s.46?
No. As James Richardson said in the comment quoted in answer to your first question, the decision has
“Done little to lift the fog”. Indeed, in the light of the decision it must be questionable whether the defendant
in Blackshaw was properly convicted.
Q7
Is there any academic consensus on the interpretation of s.47(8)(c)?
Before responding to your letter, I first looked at the provision again and could make no sense of it. Then I reread the piece I [2009] 3 Archbold News where Professor David Ibbetson tries to explain it, and after a second
re-reading I can see what it might be trying to say. But if I find this provision as difficult as this, I am sure that
other academics do as well. And if this is so, then I think the answer to this question must be “no”.
Postscript
Ultimately, I fear the blame for the complexity of these provisions must be laid at the door of the Law
Commission, who set the trend with their Report and accompanying Draft Bill.
From time to time I have wondered how the Law Commission, an expert body which is highly respected,
came to do this. On reflection, I think that what happened here is what does sometimes tend to happen when
a group of very clever lawyers temporarily immerse themselves in a legal problem, to the point where
everything else is excluded from their minds. Because their minds are full of it, every ramificatory detail of the
complex drafting they produce is clear to them, and they therefore wrongly imagine it will be equally clear to
everybody else. Though most of what the Law Commission produces is excellent, over-complication has been
a defect in some other parts of their work in the area of criminal law: for example, the hearsay provisions of
the Criminal Justice Act 2003, which the courts have also struggled with. The same tendency is sometimes to
be seen in judgments of the House of Lords, and now of the Supreme Court. By getting too close to a legal
problem, it is possible to make a meal of something which really ought to be a simple snack.
I hope your Committee does decide to undertake post-legislative scrutiny of these provisions and I wish it well
in this task. If I can be of further help to the Committee, please feel free to ask me.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
21
Letter dated 6 February 2013 from Professor Graham Virgo MA, BCL, to the Chair of the
Committee
Thank you for your letter inviting me to comment on whether the Justice Committee should conduct Postlegislative scrutiny of the Serious Crime Act 2007.
I will preface my comments by saying that I have very recently been lecturing on Part 2 of the Serious Crime
Act 2007 to students studying Criminal Law at the University of Cambridge. I started my lectures on the
offences of assisting and encouraging a crime by informing the audience that, in my opinion, this is the worst
piece of legislation to be enacted for a significant time. The unnecessary complexity and prolixity of Part 2
makes it very difficult to explain and to understand. A number of the students subsequently informed me that,
if they, as bright students, find it very difficult to understand the law, what hope is there for jurors untrained
in the law. They had particular sympathy for judges in directing jurors about these offences, and with
appellate judges in trying to make sense of the law. As the author of the chapter on inchoate offences in
Simester and Sullivan’s Criminal Law Theory and Doctrine (4th ed., 2010), who is presently rewriting that
chapter for a new edition, I too have great sympathy with the difficulties of exposition of the new law. Whilst,
of course, the effectiveness of legislation cannot be judged by reference to how difficult it is for academics to
explain the law to students, if the exposition of that law has become much more difficult as a result of recent
statutory reform, it indicates that post-legislative scrutiny might be desirable. It is my view that, for this and
other reasons, the Justice Committee should undertake such scrutiny.
My answers to your particular questions are as follows.
1. For a significant time after Part 2 of the Act was brought into force, my concerns about the drafting and the
comprehensibility of the legislation were not borne out in practice. But this was simply because the new
offences were, so far as I have been able to discover, not being charged. I understood from informal
discussions with prosecutors that they thought that the offences would be avoided when determining
appropriate charges, because they were considered to be very difficult to understand and to prosecute.
However, following the riots in August 2011, the crimes of assisting and encouraging have proved to be
significant. The fact that some defendants who placed messages on social media encouraging riot and other
offences were convicted of the encouraging offence, and received sentences of four years’ imprisonment,
shows that these offences can have a very significant role to play in the criminal justice system. It is also clear
from the decision of the Court of Appeal in Sadique that the offences have a significant role in relation to
serious organised crime. We are now, therefore, starting to see these offences being prosecuted. The decision
in Sadique, which drives a coach and horses through the section 46 offence, bears out my concerns about the
drafting and comprehensibility of the legislation, which has made the task of the senior judiciary very difficult
in making sense of the law.
2. I have no doubt that the creation of two new inchoate offences of encouraging and assisting a crime was
justified. Before the enactment of Part 2, a defendant who encouraged a crime in circumstances where that
crime was not committed, could be convicted of the common law offence of incitement, at least where the
defendant had communicated with another party. A defendant who sought to assist the commission of a
crime which was not committed, could not usually be convicted of any offence (save for potential liability
relating to conspiracy). This was a gap in the law which needed to be plugged. The significance of this is
illustrated by the conviction secured in Sadique for assisting the supply of drugs (albeit through artificial
interpretation of the legislation), which could not have been prosecuted before Part 2 of the Serious Crime Act
was brought into force. If a statutory offence of assisting was to be created it was entirely appropriate to codify
the crime of incitement at the same time, to ensure consistency between the two offences. But, whereas the
common law offence of incitement could be expressed very easily, and was a body of law about which there
was little uncertainty that is certainly not true of the offence which replaced it. In my view, the Government is
partially correct in suggesting that a gap in the law has been closed, but this cannot be considered to have been
successful.
3. As far as I have been able to discover, apart from the significant decision of the Court of Appeal in Sadique
[2011] EWCA Crim 2872, [2012] 1 WLR 1700, the offences have only proved to be significant in reported
22
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
cases in Blackshaw et al [2011] EWCA Crim 2312, [2012] 1 WLR 1126, arising from the 2011 riots. The
offences have been relevant in other cases but they have only involved sentencing rather than substantive
issues (e.g. Lamphier [2012] EWCA Crim 731, Garner-Harris [2012] EWCA Crim 2996 and Watling [2012]
EWCA Crim 2894. The conviction of Blackshaw is arguably undermined by the subsequent decision in
Sadique, by virtue of which a defendant who contemplated that a number of offences might be committed,
believing that one would be committed but was not sure which, could not be convicted of the encouraging
offence within section 46. This undermines the purpose of that offence, which is to provide for the relatively
common case where a defendant contemplates that one of a variety of offences might be committed as a result
of his or her encouragement. If a substantive offence is actually committed, the encourager could be convicted
of being an accessory (by virtue of the rule in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350), but
cannot now be convicted of the inchoate offence if no substantive offence is committed.
4. The key point of principle relating to Part 2 of the Serious Crime Act 2007 relates to the construction of
criminal legislation, which needs to be certain, clear and explicable. The success of a new criminal offence
should not be judged simply by the intellectual satisfaction derived from providing solutions to unlikely
problems. The application of the law in the real world by police, prosecutors, judges and legal advisers must be
considered as well. Judged in this way, Part 2 is not fit for purpose. This was effectively acknowledged by the
Court of Appeal in Sadique. The real problem with Part 2 is that it is seeking to do far too much, by providing
for a wide variety of different circumstances, resulting in the criminalisation of conduct artificially. One
example illustrates the point. If A encourages B to handle goods in circumstances where A knows that the
goods are stolen but does not know whether B knows or believes this, then A can be guilty of encouraging B to
handle stolen goods, simply by virtue of A’s knowledge that the goods are stolen: Serious Crime Act 2007, s.
47(5)(a)(iii). But why? Surely A should only be guilty of encouraging the offence if A knows or believes that B
will commit the offence. That offence can be stated much more simply and it would be workable and
defensible and, frankly, more likely to be prosecuted.
5. I would advocate replacing Part 2 of the Serious Crime Act 2007 with two new offences. One would be a
crime of encouraging another to commit an offence knowing or believing that the other would commit that
offence. The other crime would be the same, but would involve assistance. Provision would also need to be
made for the situation where the defendant knows or believes that one offence from a list of offences will be
committed, but is not sure which.
Even if it is felt that Part 2 of the Serious Crime Act should not be replaced, it certainly requires amendment.
For example, the decision of the Court of Appeal in Sadique needs to be reversed, so that the important
function of section 46 can be reinstated. Further, specific provision needs to be made for where the
commission of the offence which is assisted or encouraged is impossible: such provision is made for the
crimes of conspiracy and attempt.
6. Sadique has not clarified section 46 in any way. Whilst I have sympathy with the judges in the Court of
Appeal who were faced with an impossible task in interpreting this section, the effect of their decision is to
render section 46 otiose. Since each contemplated offence must now be charged as a separate count, the
defendant can only be convicted if he or she believed that a specific offence would be committed; that is the
same as under section 45. It follows that a defendant who contemplates a number of offences being
committed but does not believe any specific crime would be committed, cannot be guilty of an assisting or
encouraging offence. That is an unfortunate restriction on the ambit of liability.
7. The interpretation of section 47(8)(c) has not been a cause of particular concern amongst the academic
community. There appears to be consensus that the provision is only relevant to where the defendant has
encouraged or assisted an attempt to commit an offence.
I hope that these comments are of assistance to the Committee.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
23
Appendix B - Correspondence with the
Lord Chancellor and Secretary of State for
Justice and Additional Memorandum
Letter dated 26 March 2013 from the Chair of the Committee to Rt Hon Chris Grayling MP,
Lord Chancellor and Secretary of State for Justice
In November 2012 the Justice Committee received a copy of the Memorandum to the Home Affairs
Committee and Justice Committee, Post-legislative Scrutiny of the Serious Crime Act, Cm 8502, prepared by
your Ministry and the Home Office. As you will be aware, the discussion within the Memorandum of the
interpretation of the provisions contained in Part 2 of the Act (encouraging and assisting offences) by the
Courts and prosecution services falls within our remit.
The Memorandum states that there have been no reviews or Select Committee inquiries into Part 2 "though
there has been some interest from legal commentators". It concludes that Part 2 was intended to, and has
successfully, closed a gap in the law and that use of Part 2 is increasing. The Memorandum mentions the case
of R v Sadique [2012] 1 WLR 1126 and suggests that this is a good example of the application of the Act, in
this case to disrupt businesses supporting the trade in illegal drugs.
When the articles referred to as demonstrating "interest from legal commentators" are examined, it is clear
that their" interest" is in fact trenchant criticism of Part 2 of the Act at, and before, the time it came into force.
And when the judgment of the Court of Appeal in the case of Sadique is examined, it is again clear that the
Court was highly critical of the provisions of Part 2. Legal commentary on this appellate case is also critical.
In the light of this academic and legal criticism, the Committee wrote to the academics referred to in the
Memorandum, and received substantive responses from Professor John Spencer QC LLD, Professor Graham
Virgo and Dr John Child, as well as informal responses from other academics and practitioners. They were
unanimous in their criticism of Part 2, and considered that the criticism of Part 2 of the Act before it came
into force had been borne out in practice. We were struck, in particular, by the comment made by Professor
John Spencer QC LLD, University of Cambridge, in his letter to us:
As one of my academic colleagues said [...], most of his students had struggled to explain the
ingredients of these provisions, and" I don't know how those with less keen minds, absolutely no
legal training, and presumably limited access to textbooks and Westlaw would fare with, in
particular, s.47(5). I've never been cruel enough to ask one of my non-lawyer friends to make sense
of it." And these provisions are difficult even for lawyers. As another of my academic colleagues [... ]
said: "Can you imagine the task of the duty solicitor explaining these provisions to their client?"
We would be grateful for a memorandum of evidence responding to the points made in the three letters
mentioned above, copies of which I enclose; in particular, the points made as to unintelligibility of the
provisions, complexity of the mens rea requirements across Part 2, and concerns raised as to the effect on the
Part 2 offences of the judgment in the case of Sadique.
We intend to treat the statistics on the use of Part 2, as sent to us by the Ministry, as evidence. If you are able
to update the table to include figures for 2012 that would be helpful. Please could your memorandum be with
us by 26 April.
Upon receipt of your response we will decide what, if any, further work we intend to complete on this subject:
we may of course decide to publish a report.
I am sending a copy of this letter to the Secretary of State for the Home Department, and to the Chair of the
Home Affairs Committee.
24
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Letter dated 26 April 2013 from Rt Hon Chris Grayling MP, Lord Chancellor and Secretary
of State for Justice, to Chair of the Committee
In your letter to me of 26 March you wrote concerning the Memorandum to the Home Affairs Committee
and Justice Committee: Post-legislative Scrutiny of the Serious Crime Act 2007, Cm 8502 published in
November 2012.
You raised a number of issues relating to the sections of the Memorandum discussing Part 2 of the Act
(encouraging or assisting crime) which is the responsibility of the Ministry of Justice and requested a
memorandum of evidence responding to the points made in three letters accompanying yours from Professor
John Spencer QC LLD, Professor Graham Virgo and Dr John Child. You highlighted in particular points
made as to unintelligibility of the provisions, complexity of the mens rea requirements across Part 2, and
concerns raised. as to the effect on the Part 2 offences of the judgment in the case of Sadique.
I enclose the memorandum requested by the Committee. As you will understand. The Serious Crime Act
2007 was legislation based on proposals and taken through by the previous Government following a report by
the Law Commission in 2006. Part 2's purpose and effect and explanation of the various provisions were set
out in detail by the previous Government’s Ministers in debates during passage of the Bill and in
accompanying documents.
We are concerned to ensure that this legislation is working effectively and the assessment in the November
memorandum confirmed that the 2007 Act had met the previous Government’s objectives as set out in
Parliament. Use of the offences created is growing and the conclusions of the two cases referred to in the
November memorandum (Blackshaw and Sadique) did not give rise to substantial concerns (though the CPS
did issue guidance on the encouraging and assisting offences, particularly the implications of Sadique for
section 46 of the 2007 Act last December. We acknowledge that there have been criticisms including those of
your correspondents but we are not aware of evidence of practical problems with the law in prosecuting cases
or achieving convictions.
I also enclose as requested a revised table of prosecutions figures from the CPS, now including figures for
2012.This confirms that the number of prosecutions has risen and in particular that section 46 prosecutions
have risen in the wake of Sadique. The department has also provided the Committee with data on convictions
up to 2011.
The memorandum deals with various points made by your correspondents. However, some are on matters
that, while of great interest to us, are matters for the courts for authoritative interpretation of the law once
legislation has been enacted by Parliament rather than for Government. The main contribution from
Government is through Ministers' statements recorded in Hansard reports and in other supporting
documents at the time. I hope our response is helpful to the Committee.
Ministry of Justice additional memorandum
Introduction
1. In November 2012, the Home Office and Ministry of Justice submitted a memorandum1 to the Home
Affairs Committee and the Justice Committee setting out the departments' post legislative assessment of the
Serious Crime Act 2007 ("the Act”). Part 2 of the Act created three offences of encouraging and assisting crime
and is the responsibility of the Ministry of Justice.
1
Memorandum to the Home Affairs Committee and Justice Committee: Post Legislative Scrutiny of the Serious Crime
Act 2007 at www.official-documents.gov.uk/document/cm85/8502/8502.pdf
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
25
2. A post legislative assessment is normally conducted by the responsible department three to five years after
Royal Assent to assess how an act has worked in practice relative to the objectives and benchmarks identified
during the passage of the Bill and in supporting documentation. For Part 2 of the Act, the objectives were set
out by Ministers of the Government at the time during passage of the Bill and described in paras 12 to 15 of
the memorandum submitted in November. The Government concluded on the basis of this preliminary
assessment that the objectives — to close a gap in the law, particularly evident in relation to serious crime —
had been achieved.
3. The Chairman of the Justice Committee wrote on 26 March requesting a memorandum of evidence from
the Ministry of Justice, responding to the points made in three letters from academic commentators provided
with the Chairman's letter. Of particular interest to the Committee were a number of points made as to alleged
unintelligibility of the provisions, complexity of the mens rea requirements across Part 2 of the Act, and
concerns in respect of the effect of the judgment in the case of Sadique2 on the continued application of the
Part 2 offence. The MoJ was also asked to provide an update to the table in the November 2012 memorandum
to include figures for 2012. Our response to this request is set out in this memorandum.
Unintelligibility
4. We agree that the legislation is complex and technical- this was acknowledged by Ministers at the time in
debates3 during passage through Parliament of the Serious Crime Bill. The extent to which the complexity is
unavoidable can be debated – we note Dr Child's comment that ‘general inchoate offences are always going to
include a degree of complexity' and the general view of the Committee's correspondents that the legislation is
more complex than it needed to be. We also note the comments on the extent to which the complexity arose
between the original Law Commission proposals and the provision introduced by the then Government.
There was frequent comment on the complexity and in some cases difficulty of the provisions during passage
of the Bill, but we have not detected in these debates any concern that the provisions would be unintelligible
and thus unusable. They were regarded as technical but uncontroversial in nature and debates focused on
explanation rather than revision, with many amendments being probing. It was acknowledged that the effect
and rationale for the provisions needed to be explained and examples of how they would operate in particular
situations were frequently put forward by Ministers.
As well as the explanations in Hansard and the Law Commission's report, the· legislation has been extensively
discussed and analysed elsewhere, in relevant judgments, commentaries and guidance since enactment.4
These are of considerable assistance to legal practitioners in interpreting the legislation.
5. We recognise that discussion on the interpretation and necessity of the legislation continues, and that views
vary. With such complex legislation there will be areas where there may be differences of opinion on meaning
or whether the approach used was the best option, There was a great deal of careful consideration by the Law
Commission, Government and Parliament at the time the provisions were being developed and we recognise
that there could be a risk of legislation being over-engineered by the depth of this process. From time to time
the courts or the CPS may need to clarify matters in judgments or guidance; exceptionally a problem with the
law requiring correction may be identified - to date, we are unaware of any need to do this for Part 2 of the
Act. The increase in the numbers of offences charged and reaching a first hearing in magistrates' courts
(Annex A) suggests that criminal justice practitioners are becoming more active in using the legislation and
this may be the result of increased familiarity with it.
2
R v S and H [2011] EWCA Crim 2872 at http://www.bailiiorg/ew/casesEWCA/Crim/2011/2872.html
3
http://www.publications.parliament.uk/pa/pabills/200607/serious_crime.hlm. There were particularly lengthy
considerations of Part 2 during Lords Committee on 21 March (cols 1231–1268), Lords Report on 25 April (cols 715754) and Common Committee on 3 July 2007 (afternoon, cols 210–224)
4
Judgments include Blackshaw at http://www.iudiciarv.gov.uk/Resources/JCO/Documents/Judgments/r•v-blackshawothers.pdf, as well as the papers by the Committee's correspondents, there are commentaries in Ibbetson,
'Encouraging or Assisting Attempt' [2009]3 Archpold News 8; and Ormerod and Fortson, 'Serious. Crime Act 2007:
The Part 2 Offences' [2009] Crim LR 389. CPS guidance on the offences is included in its legal guidance on inchoate
offences at http://www.cps.gov.uk/legall/h_to _k/inchoate_offences/ as well as the joint enterprise guidance referred
to at para 11
26
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Complexity of mens rea across Part 2
6. The Law Commission put forward its proposals - including a draft Bill - in its report in July 2006.5 The
Government conducted a consultation which closed in October that year and in January 2007 introduced into
Parliament (starting in the Lords) the Serious Crime Bill which incorporated provisions covering encouraging
or assisting crime as Part 2. There were significant differences between the Law Commission's draft and the
Government’s clauses.
7. As well as considering the recommendations from the Law Commission, the Government had been
considering for sometime how to deal more effectively with organised crime. In its Green Paper 'New Powers
Against Organised and Financial Crime’6, the Government referred to the importance of addressing gaps in
the criminal law and the value of having a ‘general offence capturing acts of encouragement or assistance' as 'a
useful way of disrupting crime, particularly organised crime'. The Green Paper asked whether the offences at
clause 2 of the Law Commission's draft Bill should be limited to "belief”' that an offence or offences "will" be
committed. The Government considered whether the scope of the offences should be widened, In particular
whether liability should rest on encouraging or assisting criminal activities rather than against specific
criminal offences - this was particularly relevant to organised crime where the links between parties can be
complex and distant.
8. Following the consultation, the Government decided not to lower the mental element for the offences
below belief or to have liability relate to criminal activities rather than specific offences, but it did make
changes to the Law Commission's proposed clause that eventually became section 46 - the rationale is set out
in an impact assessment for the Serious Crime Bill published in June 2007.7 The assessment considered two
options for change, one which implemented the Law Commission's proposals (Option 2), the other making
changes to the Law Commission's proposed clause 'to make it more workable in practice' (Option 3). The
Government chose to proceed with the latter option on the basis that it would address 'concerns identified by
law enforcement agencies and prosecutors concerning those who facilitate organised crime without specific
knowledge of the offences being committed' - see Annex B for a fuller extract explaining the decision.
Differences with other parts of the Law Commission bill were covered by explanations during passage of the
Serious Crime Bill.
9. The decisions by the Government on how to handle mens rea in the Serious Crime Bill rested on this
considered view of Law Commission proposals, the importance of dealing with organised crime where there
are frequently difficulties in prosecuting cases. Dr Childs points to the complexities particularly in the
interplay between sections 44 to 46 offences and section 47 and we acknowledge that these were difficult
provisions to explain during passage and since. Many of the other cases of interplay across Part 2 relate to
aspects of procedure and sentencing where there may be differences of approach depending on the offence.
Sadique and implications for section 46 of the 2007 Act.
10. Professor Virgo's letter to the Committee comments on the case of Sadique8, and in particular the
implications for section 46 of the Act. The CPS has considered the implications of the judgment (handed
down in 2011) and produced specific advice for prosecutors on charging an offence under section 46 in paras
87 to 90 of its guidance on joint enterprise published in December 2012.9 The advice draws attention to the
court's recommended wording for drafting the statement and particulars of offences for a section 46 count
and guidance on what needs to be proved in paras 84 to 90. More generally, Sadique was a helpful judgment
for prosecutors since the Court of Appeal dismissed arguments that section 46 of the Act was incompatible
5
http://lawcommission.justice.gov.uk/publications/721.htm
6
http://www.official-documents.gov.uk/document/cm68/6875/6875.asp
7
http://webarchive.nationalarchives.gov.uk/20100418065544/http://www.homeoffice.gov.uk/documents/SeriousCrime-BiII-RIA.html, pages 14 to 19 cover the encouraging and assisting crime provisions
8
http://www.bailii.org/ew/cases/EWCA/Crim/2011/2872.html
9
http://www.cps.gov.uk/legal/assets/uploads/files/Join_Enterprise.pdf
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
27
with the European Convention on Human Rights (ECHR) and refused to issue the Declaration of
Incompatibility sought under section 4 of the Human Rights Act 1998.
11. The section 46 offence has continued to be charged during 2012 - according to CPS figures (Annex A), in
2011 there were 19 offences charged and reaching a first hearing in magistrates' courts of the section 46
offence rising to 38 in 2012. It is difficult at this stage to come to any conclusions about convictions for a
section 46 offence (Annex C). Only six persons charged with a section 46 offence were found guilty in the
three years ending 2011. However, the number of defendants proceeded against increased significantly from
seven in 2010 to 22 in 2011. Cases can start in one year and conclude in another year. Data for 2012 on
convictions will become available in May 2013 and the position can then be assessed.
Statistics
12. In response to the Committee's request for 2012 prosecution data, a revised version of the table in the post
legislative assessment memorandum is enclosed as Annex A. The MoJ has also provided statistics to the
Committee showing convictions over the period 2009 to 2011 (Annex C). At the time of analysis work for the
post legislative assessment, 2011 convictions data had not yet become available and with data so scant, the
data was not covered in the memorandum.
13. In the post legislative assessment it was demonstrated that prosecutions were increasing over the three
year period. The latest figures show that the number of offences charged and reaching a first hearing in
magistrates' courts has continued to rise and now stands at 196 in 2012. The number of offences prosecuted
under Part 2 of the 2007 Act was never expected to be substantial - the impact assessment for the Serious
Crime Bill estimated that 30 to 50 additional prosecutions each year would result from the new proposals. It is
not possible from current figures to assess the number of cases where the offence concerned was assisting but
figures of around 150–200 prosecutions in 2011 and 2012 are not out of line with the impact assessment
estimate. These offences were widely used for offences committed during the August 2011 riots and therefore
the 2011 figures might have been higher than normal. However, the growth in offences charged and reaching
a first hearing in magistrates' courts shown in 2012 shows that use has been sustained. It is possible that the
experience gained in prosecuting the riot cases has helped criminal justice practitioners in applying these
offences to subsequent cases and therefore any increase in 2012 is the result of the learning experience in
dealing with riot prosecutions.
14. It is not possible from these figures to come to any conclusions on the success in prosecuting cases or on
the breakdown between the types of offences given the relatively low numbers. Caution is also needed in
comparing the data from the MoJ and the CPS: the MoJ table also shows the number of defendants proceeded
against at magistrates' courts whereas the CPS data counts offences reaching the magistrates courts so the
numbers are not strictly comparable.
Conclusion
15. We acknowledge that there has been criticism of Part 2 of the Serious Crime Act but we are not aware of
evidence of practical problems with the law in prosecuting cases or achieving convictions. While of great
interest to us, authoritative interpretation of the law is a matter for the courts once legislation has been
enacted by Parliament, rather than for Government. The main contribution from Government is through
Ministers' statements recorded in the Hansard reports and in other supporting documents at the time.
28
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Annex A
OFFENCES CHARGED AND REACHING A FIRST HEARING IN MAGISTRATES' COURTS
Offence
2009
2010
2011
2012
Serious Crime Act 2007 {44}
0
0
1
8
Serious Crime Act 2007 {44 and 58}
6
26
75
85
Serious Crime Act 2007 {45}
0
0
0
3
Serious Crime Act 2007 {45 and 58}
7
15
26
62
Serious Crime Act 2007 {46}
0
0
0
3
Serious Crime Act 2007 {46 and 58}
0
3
8
30
Serious Crime Act 2007 (46 and 58(5), (6) and (7)}
0
3
11
5
13
47
121
196
TOTAL OFFENCES
Source: Crown Prosecution Service
1. Offences recorded in the MIS Offences Universe are those which reached a hearing. There is no indication
of final outcome or if the charged offence was the substantive charge at finalisation.
2. Data relates to the number of offences recorded in magistrates' courts, in which a prosecution commenced,
as recorded on the CMS.
3. Offences data are not held by defendant or outcome.
4. Offences recorded in the Offences Universe of the MIS are those which were charged at any time and
reached at least one hearing. This offence will remain recorded whether or not that offence was proceeded
with and there is no indication of final outcome or if the offence charged was the substantive offence at
finalisation.
(A) CPS data are available through its Case Management System (CMS) and associated Management
Information System (MIS). The CPS collects data to assist in the effective management of its prosecution
functions. The CPS does not collect data which constitutes official statistics as defined in the Statistics and
Registration Service Act 2007. These data have been drawn from the CPS's administrative IT system,
which, as with any large scale recording system, is subject to possible errors with data entry and
processing. The figures are provisional and subject to change as more information is recorded by the CPS.
(B) The official statistics relating to crime and policing are maintained by the Home Office and the official
statistics relating to sentencing, criminal court proceedings, offenders brought to justice, the courts and
the judiciary are maintained by the Ministry of Justice.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
29
Annex B
EXTRACT FROM SERIOUS CRIME BILL IMPACT ASSESSMENT: NEW CRIMINAL LAW
PROPOSALS CONCERNING SERIOUS CRIME
81. However, although the Law Commission proposals would cover a person who provides encouragement or
assistance to a number of offences where he believes that at least one will be committed, the formulation of
that offence would require the prosecution to prove that, in relation to one of the offences that the person
providing the encouragement or assistance "considered might have been committed, he believed that the
person committing the offence had the necessary fault element to do so. We have considered this in detail
with prosecutors and consider it would be difficult to prove a state of mind in relation to an offence that, by
definition, a defendant did not believe would happen. These offences do not therefore cover the "situation
where a person provides encouragement or assistance to a range of offences and does not consider, or care,
which might be committed nor whether they would be committed with the necessary fault, but is happy to
assist whatever the principal offender has in mind. This is a particular problem in relation to those who assist
serious crime as they frequently distance themselves from the commission of offences. Option 2 would not
therefore fully address the concerns identified by law enforcement officers and prosecutors concerning those
who facilitate serious crime. The risks therefore of implementing option 2 would be failure to realise the full
benefits put forward for these proposals (for example preventing crime in the first place, imposing liability on
those who operate on the fringes of organised crime, more successful prosecutions etc).
82. The Government has therefore decided to proceed with option 3 and implement the proposals as set out
in the Law Commission Report but make changes to the clause 2(2) to make it more workable in practice.
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
Section of Act
6
7
5
4
3
2
1
Total
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
guilty
-
-
-
-
-
-
-
-
sentenced
2008567
Found
-
-
-
-
-
-
-
-
Cautioned against
Proceeded
2
2
8
4
5
2
-
1
-
-
1
1
1
1
-
-
Found
5
2
-
1
-
2
-
1
guilty sentenced
2009
5
1
-
1
1
-
2
-
25
7
-
2
9
-
7
-
Cautioned against
Proceeded
Found
9
1
1
1
3
-
2
22
8
1
1
1
3
-
1
-
guilty sentenced
2010
10
1
-
1
1
3
2
-
78
22
-
2
7
1
48
25
Cautioned against
Proceeded
Found
61
3
1
1
35
4
16
6
62
3
1
1
35
5
15
6
guilty sentenced
2011
The cautions statistics relate to persons for whom these offences were the principal offences for which they were dealt with. When a defendant has been cautioned for two or more offences at the
same time the principal offence is the more serious offence.
The figures given in the table on court proceedings relate to persons for whom these offences were the principal offences for which they were dealt with. When a defendant has been found guilty of
two or more offences it is the offence for which the heaviest penalty is imposed. Where the same disposal is imposed for two or more offences, the offence selected is the offence for this the statutory
maximum penalty is the most severe.
Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from administrative data systems granted by
the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used.
The number of defendants found guilty in a particular year may exceed the number proceeded against as the proceedings in the magistrates’ court took place in an earlier year and the defendants were
found guilty of a different offence to that for which they were originally proceeded against.
The number of offenders sentenced can differ from those found guilty as it may be the case that a defendant found guilty in a particular year, and committed for sentence at the Crown court, may be
sentenced in the following year.
Excludes data for Cardiff magistrates’ court for April, July, and August 2008.
The Serious Crime Act 2007 commenced 1 October 2008
‘ – ‘ : Nil
-
-
Encouraging or assisting commission of a summary
offence believing it will be committed.
S.45 (pt)
Encouraging or assisting commission of one or more
summary, either way, or indictable offences (other
than murder) believing it/they will be committed
S.46 (pt)
-
Encouraging or assisting commission of an either way
offence believing it will be committed
S.45 (pt)
-
-
Intentionally encouraging or assisting commission of
a summary offence
S.44 (pt)
Encouraging or assisting commission of an indictable
offence believing it will be committed – not murder
S.45 (pt)
-
-
against
Proceeded
Cautioned
Intentionally encouraging or assisting commission of
an either way offence
S.44 (pt)
Intentionally encouraging or assisting commission of
an indictable offence – not murder
S.44 (pt)
Offence description
Offenders cautioned1, defendants proceeded against at magistrates ‘courts, and offenders found guilty and sentenced at all courts under Sections 44–46 of the Serious Crime Act 2007, England and
Wales, 2008–2011234
30
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
31
Formal Minutes
Tuesday 3 September 2013
Members present:
Sir Alan Beith, in the Chair
Steve Brine
Jeremy Corbyn
Nick de Bois
Gareth Johnson
Mr Elfyn Llwyd
Seema Malhotra
Andy McDonald
Graham Stringer
Draft Report (Post-legislative scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007),
proposed by the Chair, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 32 read and agreed to.
Summary agreed to.
Papers were appended to the Report as Appendices A and B.
Resolved, That the Report be the Sixth Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
[Adjourned till Wednesday 11 September at 9.15am.
32
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
List of Reports from the Committee during
the current Parliament
The reference number of the Government’s response to each Report is printed in brackets after the
HC printing number.
Session 2010–12
First Report
Revised Sentencing Guideline: Assault
HC 637
Second Report
Appointment of the Chair of the Judicial
Appointments Commission
HC 770
Third Report
Government’s proposed reform of legal aid
Fourth Report
Appointment of the Prisons and Probation
Ombudsman for England and Wales
HC 1022
Fifth Report
Appointment of HM Chief Inspector of Probation
HC 1021
Sixth Report
Operation of the Family Courts
Seventh Report
Draft sentencing guidelines: drugs and burglary
Eighth Report
The role of the Probation Service
Ninth Report
Referral fees and the theft of personal data: evidence
from the Information Commissioner
HC 1473(Cm 8240)
Tenth Report
The proposed abolition of the Youth Justice Board
HC 1547 (Cm 8257)
Eleventh Report
Joint Enterprise
HC 1597 (HC 1901)
Twelfth Report
Presumption of Death
HC 1663 (Cm 8377)
First Special Report
Joint Enterprise: Government Response to the
Committee’s Eleventh Report of Session 2010–12
HC 681–I (Cm 8111)
HC 518-I (Cm 8189)
HC 1211
HC 519–I (Cm 8176)
HC 1901
Session 2012–13
First Report
Post-legislative scrutiny of the Freedom of
Information Act 2000
HC 96–I (Cm 8505)
Second Report
The budget and structure of the Ministry of Justice
HC 97–I (Cm 8433)
Third Report
The Committee’s opinion on the European Union
Data Protection framework proposals
HC 572 (Cm 8530)
Fourth Report
Pre-legislative scrutiny of the Children and Families
Bill
HC 739 (Cm 8540)
Fifth Report
Draft Public Bodies (Abolition of Administrative
Justice and Tribunals Council) Order 2013
Sixth Report
Interpreting and translation services and the Applied
Language Solutions contract
HC 645 (Cm 8600)
Seventh Report
Youth Justice
HC 339 (Cm 8615)
Eighth Report
Scrutiny of the draft Public Bodies (Abolition of
Administrative Justice and Tribunals Council) Order
2013
HC 965 (HC 1119)
Ninth Report
The functions, powers and resources of the
Information Commissioner
First Special Report
Scrutiny of the draft Public Bodies (Abolition of
Administrative Justice and Tribunals Council) Order
HC 927
HC 962
(HC 560, Session 2013–14)
HC 1119
Post-legislative Scrutiny of Part 2 (Encouraging or assisting crime) of the Serious Crime Act 2007
33
2013: Government Response to the Committee’s
Eighth Report of Session 2012–13
Session 2013–14
First Report
Sexual Offences Guidelines: Consultation
HC 93
First Special Report
The functions, powers and resources of the
Information Commissioner: Government Response to
the Committee’s Ninth Report of Session 2012–13
Second Report
Women offenders: after the Corston Report
HC 92
Third Report
Transforming Legal Aid: evidence taken by the
Committee
HC 91
Fourth Report
Environmental Offences Guideline: Consultation
Fifth Report
Older prisoners
HC 560
HC 604
HC 89