The Law Commission

PART 4

THE CASE FOR AND AGAINST INCHOATE LIABILITY FOR ASSISTING THE COMMISSION OF AN OFFENCE

INTRODUCTION

4.1      In Part 3 we suggested that a major defect of the common law is the lack of inchoate liability for assisting the commission of an offence. In this Part we set out the competing arguments and explain why we are persuaded that the law of England and Wales would be improved were there to be such liability.
4.2      We acknowledge that the lack of a general inchoate liability for assisting the commission of an offence is not peculiar to the common law of England and Wales. Thus, neither the Canadian Criminal Code nor the New Zealand Crimes Act 1961 provides for such liability.
4.3      On the other hand, some jurisdictions do recognise inchoate liability for assisting crime. Macaulay's Indian Penal Code of 1860 contained an inchoate offence of abetment that covered both acts of encouragement and acts of assistance.^[1] The American Law Institute's Modern Penal Code goes down a different route. A person who engages in conduct, designed to aid another to commit an offence, which would render him or her an accessory if the offence were committed, is guilty of an attempt to commit the offence even though the offence is not committed or attempted.^[2] Further, if P does commit or attempt the offence but without reference to D's assistance,^[3] D is an accessory to P's offence.^[4]

THE ARGUMENTS IN FAVOUR OF INCHOATE LIABILITY FOR ASSISTING

Combating serious crime

4.4      The police would be able to work more effectively, particularly in the context of serious organised crime. Under the common law, the police cannot proceed against D until another person has committed or attempted to commit the principal offence. The lack of a general inchoate liability for assisting crime sits uneasily with the developments in intelligence-led policing which is now an important weapon in the state's response to serious organised crime. A general inchoate offence that capturing all preliminary acts of assistance regardless of whether the principal offence was subsequently committed or attempted would be a valuable addition to the state's resources in tackling serious organised crime.

The rationale underlying inchoate liability

4.5      Incitement, conspiracy and attempt, although distinct offences, share a common rationale. Each offence, by proscribing conduct that manifests an intention to bring about harm and enhances the prospect of harm occurring, enables the criminal law to intervene at a stage before the harm materialises. The utilitarian rationale underlying these offences is that the benefits of avoiding harm outweigh any disadvantages arising from what some might perceive as the criminal law's premature intervention. We believe that the utilitarian rationale is as strong when D's conduct consists of assisting as it is when D is encouraging or conspiring with P to bring about harm.

Eliminating the element of chance

4.6      In the CP, the Commission stated:

Under the present law it is a matter of chance, so far as D is concerned, whether he becomes guilty, that chance depending on whether P commits the principal crime.^[5]

It might be thought that criminal liability for culpable conduct that assists others to commit offences should not be a matter of chance or luck.

Sufficiently culpable conduct

4.7      Assisting another person to commit an offence is sufficiently culpable conduct to warrant the imposition of criminal liability even if that person does not commit or attempt to commit the offence. If D lends a gun to P so that P can and does murder V, we do not hesitate to label D's conduct as culpable. It is no less culpable merely because P for whatever reason does not commit the murder. As Professor Spencer has observed:

It is no fault of mine – or to be more accurate, it is not due to any lack of fault on my part – that the crime was never committed. If my behaviour was bad enough to punish where you actually made use of the help I gave you, it was surely bad enough to punish where I fully expected you to use it but you got caught before you had the chance.^[6]

Deterrence

4.8      An inchoate offence of facilitation may have some deterrent effect. It would deter some individuals from assisting prospective perpetrators of offences if they were aware that there was an immediate risk of liability regardless of whether the offence they were assisting was committed or attempted.

A more coherent approach

4.9      The lack of a general inchoate offence of assisting crime has resulted in a piecemeal and haphazard approach. Having noted that there are numerous statutory offences that criminalise particular acts of assisting, Professor Spencer stated:

The present range of offences is quite inadequate to cover all the cases which ought to be covered, and the gaps between them produce some anomalies which suggest the criminal law has a very odd set of values. It is an offence under s 59 of the Offences Against the Person Act 1861 to lend a knitting needle for an abortion, for example, but no offence at all to lend a knife to commit murder – unless of course the murder is attempted or committed.^[7]

Labelling and punishment

4.10      In addition, the current piecemeal approach, besides being neither comprehensive nor rational, may inadequately label or punish D for his or her conduct. Thus, even where a statutory provision does criminalise a preliminary act of assistance, it may fail to adequately label and punish D for what he or she has sought to encourage or assist:

Example 4A

D goes to P's home and sells P a swordstick believing that P intends to use it to murder P's wife. Before P can attempt to kill his wife, he is arrested.

D is guilty only of the statutory offence of selling an offensive weapon.^[8] It is a summary offence, punishable with a maximum term of six months' imprisonment.

Restoring the proper boundaries of offences

4.11      The introduction of general inchoate liability for assisting crime would facilitate the process of restoring the proper boundaries of other inchoate offences, for example statutory conspiracy.

THE ARGUMENTS AGAINST INCHOATE LIABILITY FOR ASSISTING

Liability for otherwise lawful conduct

4.12      Marginal activities, that would otherwise constitute lawful conduct, would qualify as criminal assistance. Professor K J M Smith posits this example:

D, a publican, or a generous host, believes that P is going to leave the premises in his car, but continues to ply him with drink to an extent that puts him well over the statutory limit. P does not in the event drive home.^[9]

Premature intervention

4.13      It would result in premature intervention and might result in D being liable for assisting P who had no intention of committing an offence. In his response to the CP, Professor Sir John Smith provided an example of D supplying a weapon to P in the belief that P will use it to murder V whereas P merely intends to shoot rabbits. In the CP, the Commission cited the example of D agreeing to pay P, a builder doing repairs to his house, in cash knowing or believing that P wants payment in this form to assist him in defrauding the Inland Revenue. P subsequently makes a proper return to the revenue as he had always intended to.^[10]

Disparity between the liability of P and D

4.14      D will incur immediate liability for assisting P even though P, who may have requested the assistance, incurs no liability until he or she makes an attempt to commit the principal offence. In other words, there is a disparity between D and P. Professor Sir John Smith, in his response to the CP, expressed this concern:

… a gunsmith sells a shotgun to P, believing that P wants the gun to commit murder. D thereby commits the proposed offence of assisting murder and becomes liable to life imprisonment. … . Even if P did intend to commit murder, however, he commits no offence by buying the gun. It is a " merely preparatory" act for which no criminal liability is imposed. There has been no agreement with D to commit murder so D and P have not committed the crime of conspiracy. So P who intended to commit murder and bought a gun for that purpose is not guilty of anything but D who believed he was assisting in the commission of murder by P is guilty of a very serious offence. … . Buying a gun with an actual intent to use it to commit murder seems rather worse and more dangerous than selling a gun to one who is believed to intend to commit that offence. … . While acts preparatory to the commission of an offence remain outside the criminal law, it is difficult to see how assisting such acts can fairly be brought within it.

Vagueness and uncertainty

4.15      On one view, an inchoate offence of assisting with no requirement of knowledge or belief as to the future commission of any specific offence, but related to crime in general, would make the requirements for liability unduly vague and uncertain. On the other hand, a test of knowledge or belief in respect of a particular offence would give rise to problems in cases where assistance is provided and no principal offence is subsequently committed. It might be very difficult to prove that P had a particular offence in mind. The Crown Prosecution Service ("the CPS"), in its response to the CP, provided an example. D supplies P with a baseball bat in the belief that P will use it commit an offence. The CPS pointed out that P could use the bat to commit one or more of eleven potential offences and that those offences do not proscribe the same conduct or result and do not have an identical fault element.
4.16      The CPS believed that any requirement that D's fault must relate to a particular offence would be "highly unrealistic" because frequently D's state of mind would be "diffuse". Sir Edwin Jowitt, in his response to the CP, was of the same view:

The armourer who hires out a weapon may not be told by the criminal what crime is afoot. The armourer may prefer not to know. He may be indifferent as to whether this, that or any crime is committed providing he receives his hire. The criminal may take the view that the less the armourer knows the better.

ADDRESSING THE OBJECTIONS

Liability for otherwise lawful conduct

4.17      Under the current law, a publican or generous host, D, who supplies alcohol to P may incur secondary liability if P commits or attempts to commit the offence of driving with excess alcohol. This is so even if D is indifferent as to whether P commits or attempts to commit the offence. It suffices that D believes that P will be driving with an amount of alcohol over the prescribed limit as a result of the alcohol dispensed by D.^[11]
4.18      We acknowledge that to hold D criminally liable where P does not commit or attempt to commit the principal offence would constitute an extension of existing liability. We believe, however, that the mere fact that P does not commit or attempt to commit the principal offence does not in itself indicate that D's conduct is less deserving of punishment than if P had committed or attempted to commit the offence:

Example 4B

D1 and D2 hold a party. Among the guests are P1 and P2. Each drives to the party and both D1 and D2 believe, correctly, that P1 and P2 intend to drive home. D1 replenishes P1's glass with modest amounts of alcohol. D1 is aware that the alcohol he has dispensed, although modest, is such that P1 is over the statutory limit. D2 does likewise in respect of P2, the only difference being that the amount of alcohol she dispenses is far greater. P1 drives home and is stopped by the police. P1 is over the statutory limit and is charged with driving with excess alcohol.^[12] P2 is so drunk that he collapses as he is about to leave to go home. Another guest at the party puts up P2 for the night and informs the police of the behaviour of D2.

By chance, P2 has not committed any offence whereas P1 has. At present, D1 is guilty of P1's offence as an accessory but D2 is not guilty of any offence. Yet, D2's conduct is as culpable as D1's, if not more so.

4.19      Under our proposals for reform of secondary liability, a publican or host would be an accessory to P's offence of driving with excess alcohol only if it was his or her intention that P should commit the offence or be encouraged to commit the offence.^[13] Most publicans and hosts do not supply alcohol to their customers or guests with the intention that the latter should drive with excess alcohol or that they should be encouraged to do so. However, they will often be aware that, as a result of supplying the alcohol, the customers and guests will be driving when in excess of the prescribed limit. In such cases, we see no reason why publicans and hosts should not be inchoately liable for assisting P to commit the offence.

Premature intervention

4.20      We are not persuaded by this objection. It is an objection that can be levelled at all the existing preliminary offences, including incitement. We are not aware, however, that it has been suggested that the law intervenes prematurely in cases where, for example, D encourages P to murder V but P has no intention of murdering V because, unknown to D, V is a relative of P.
4.21      The objection underestimates the importance of deterring and otherwise preventing crime. It implies that a person who is prepared to assist others to commit offences should be free to continue to do so with impunity until one of those persons commits or attempts to commit an offence. The objection would prevent persons being prosecuted when their intentions have been discovered by officials acting under-cover who wish to intervene before any principal offence is committed or attempted. We do not believe that it would be unduly intrusive or a waste of resources for the criminal law to intervene even in cases where P never intended to commit the offence that D was seeking to assist. Indeed, it would be a waste of resources should the law not be able to intervene.

Disparity between the liability of D and P

4.22      We acknowledge that it might be thought to be unfair for D and not P to be liable in circumstances where, at the time the assistance is rendered, P intends to commit the principal offence but for one or other reason does not commit or attempt to commit it.^[14]
4.23      Professor Sir John Smith's response to the CP^[15] is a reminder of a fundamental principle of the common law of England and Wales, namely that it is not an offence to harbour an intention to commit an offence. The position may alter, however, if a person does something to manifest his or her intention to commit an offence.^[16] However, at common law there is no general principle that doing an act that manifests an intention to bring about harm, but which is no more than merely preparatory to the commission of an offence, gives rise to criminal liability.^[17]
4.24      Aside from the inchoate offences of attempt, conspiracy and incitement, the approach of English law has been to criminalise particular manifestations of an intention to commit an offence. Examples are possession of a firearm with intent to endanger life or injure property^[18] and possession of an article intending to use it to destroy or damage property.^[19] In this respect there is a similarity with the way in which the law has criminalised acts that assist others to commit offences. The approach has been piecemeal.
4.25      Our conclusion is that, although Professor Sir John Smith was right to highlight the fact that inchoate liability for assisting has the potential to render D criminally liable in situations where P either incurs no criminal liability or liability for a lesser offence, this is not a compelling objection. First, the objection cuts both ways. Arguably, what is needed is a form of general criminal liability for doing an act with the intention of bringing about harm.^[20] Secondly, there is a difference between the actions of D and P. If D sells P a weapon that D correctly believes P will use to murder V, D has done everything that that he or she intends to do. Nothing more turns on D's subsequent conduct whereas P has yet to take the step of attempting to commit the offence. Professor Spencer has described P as:

… still a long way from his objective, and [having] a number of psychological barriers to cross before he reaches it, at any one of which he may change his mind and abandon his wicked plan.^[21]

4.26      Thirdly, under our recommendations, if P approaches D for assistance in committing an offence, P will incur criminal liability. We are recommending that it should be an offence to do an act, with the requisite fault element, capable of encouraging or assisting another person to commit an offence. Accordingly if P asks D to supply him or her with an article so that P can commit an offence, P is doing an act capable of encouraging D to do an act capable of assisting P to commit an offence. In other words, if D supplies the article to P, not only is D committing the clause 2 offence but, by encouraging D to commit the clause 2 offence, P is committing the clause 1 offence.

Vagueness and uncertainty

4.27      This is an objection that we will address in Part 5^[22] when discussing the fault elements of the offences that we are recommending.

CONCLUSIONS

4.28      We do not believe that the objections to a general inchoate liability for assisting crime withstand scrutiny. However, they do raise important issues as to what should be the appropriate fault element for the offences that we are recommending.^[23]
4.29      Importantly, we believe that criminalising conduct that assists others to commit offences, irrespective of whether or not those offences are subsequently committed or attempted, will enhance and reinforce the ability of law enforcement agencies to tackle serious organised crime.

Note 1    Section 107. This section is still in force in some jurisdictions.    [Back]

Note 2    Article 5.01(3). According to the Comment at 314 (1985) “attempted complicity ought to be criminal, and to distinguish it from effective complicity appears unnecessary where the crime has been committed”.    [Back]

Note 3    As in example 3B in Part 3 above.    [Back]

Note 4    Article 2.06 (3)(a)(ii).    [Back]

Note 5    Para 4.39.    [Back]

Note 6    “Trying to help another person commit an offence” in P. Smith (ed) Criminal Law, Essays in Honour of J C Smith (1987) 148.    [Back]

Note 7    Above, 158.    [Back]

Note 8    Contrary to the Criminal Justice Act 1988, s 141.    [Back]

Note 9    “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 241.    [Back]

Note 10    Para 4.32.    [Back]

Note 11    There is some authority to suggest that D is secondarily liable even if he merely foresaw that P might commit the principal offence – Blakely and Sutton v DPP [1991] RTR 405; Reardon [1999] Criminal Law Review 392. More recently, the Court of Appeal has suggested that the test is whether D foresaw that it was likely that P would commit the principal offence – Webster [2006] EWCA Crim 415.    [Back]

Note 12    Contrary to the Road Traffic Act 1988, s 5(1)(a).    [Back]

Note 13    An example would be if D and P had both applied for a job requiring the holder to hold a current driving licence. D invites P to dinner and, knowing that P will be driving home, provides P with copious amounts of alcohol. As D hoped, P is breathalysed and subsequently convicted of driving with excess alcohol. D is disqualified from holding or obtaining a driving licence.     [Back]

Note 14    If D assists P in the mistaken belief that P will commit an offence there is no force in the objection. If P never intended to commit the offence, P cannot and should not incur liability.    [Back]

Note 15    See para 4.14.    [Back]

Note 16    In his response, Professor Sir John Smith implied that all acts preparatory to the commission of an offence are outside the scope of the criminal law. However, this is not so. In the example that he provided, P having bought and taken possession of the gun would have committed an offence contrary to the Firearms Act 1968, s 16.    [Back]

Note 17    If a person does an act that is more than merely preparatory to the commission of an offence, he or she may be guilty of attempt – Criminal Attempts Act 1981, s 1.    [Back]

Note 18    Contrary to the Firearms Act 1968, s 16.     [Back]

Note 19    Contrary to the Criminal Damage Act 1971, s 3.    [Back]

Note 20    Whether there should be a general inchoate offence of doing anything, or being in possession of anything, with the intention of bringing about harm is beyond the remit of this project.    [Back]

Note 21    “Trying to help another person commit a crime” in Smith, ed, Criminal Law, Essays in Honour of JC Smith (1987) 148 at p 159.    [Back]

Note 22    Paras 5.90 to 5.99 below.    [Back]

Note 23    We consider this in Part 5 paras 5.71 to 5.126 below.    [Back]