The Law Commission

APPENDIX A

COMMENTARY TO THE CRIME (ENCOURAGING AND ASSISTING) BILL

INTRODUCTION

A.1 In this commentary we explain the various provisions in our draft Crime (Encouraging and Assisting) Bill ("the Bill") and illustrate how they will work. The text of the draft Bill begins on page 144.

PART 1: THE OFFENCES OF ENCOURAGING OR ASSISTING CRIME

Introduction

A.2 Clauses 1(1) and 2(1) set out, respectively, new inchoate offences of "intentionally encouraging or assisting a criminal act" and "encouraging or assisting [a criminal act] believing that [it] will be done".^[1] The common law offence of incitement is abolished.^[2]

A.3 The new offences are inchoate offences because the encourager or assister ("D") may be liable whether or not the person he believes he is encouraging or assisting goes on to commit the "principal offence" D intends or expects to be committed.^[3] For this reason the fault requirement for each of the offences is defined narrowly, with additional safeguards in clauses 2(5) and 5 to limit the reach of the clause 2(1) offence.

A.4 This Bill makes no changes to the common law doctrine of secondary liability. In any case where the principal offence is committed by a perpetrator ("P"), D may be liable for that offence as a secondary party – if he acted with the fault necessary for such liability and provided P with encouragement or assistance – but he may also be liable under Part 1 of the Bill in relation to the criminal act he intended or expected to be committed.^[4]

A.5 The fact that the principal offence is committed by P does not affect D's inchoate liability under Part 1 of the Bill. In cases where the principal offence is committed, but D is charged under Part 1 of the Bill, D is liable in relation to the (hypothetical) criminal act he intended or expected, rather than the actual offence committed by P. This will be the position even if the offence committed by P is the same in all respects as the principal offence in relation to which D is charged under Part 1. Accordingly, it is not necessary to include provisions in the Bill to take into account matters such as a change in the way the offence was committed, or a change in the identity of the perpetrator or victim.

A.6 In paragraphs A.8 to A.22 we explain the common actus reus (external element) of the two offences created by clauses 1(1) and 2(1). We then focus on the additional requirements for liability under clause 1(1) (paragraphs A.26 to A.43) and clause 2(1) (paragraphs A.44 to A.50 and A.54).

A.7 Clause 2(2), covering a particular type of encouraging or assisting which is related to, but different from, the situation covered by clause 2(1), is explained in paragraphs A.51 to A.54.

Clauses 1(1) and 2(1): the common "actus reus"

A.8 To be liable for any criminal offence a perpetrator must commit its "actus reus", the traditional label for the external aspect of an offence comprising one or more of the following elements: conduct, circumstances and consequence.

A.9 The actus reus is the same for both clause 1(1) and clause 2(1).^[5] In other words, the difference between the way the two offences are defined relates to the mental element (the culpable state of mind the Crown must prove D had). Clause 1(1) requires proof of an intention to encourage or assist another person to do a relevant criminal act.^[6] Clause 2(1) requires proof that D believed that another person would do a relevant criminal act with his encouragement or assistance.^[7]

A.10 The common actus reus for liability under Part 1 of the Bill is an act (or a failure to take reasonable steps to discharge a duty to act)^[8] which is "capable of encouraging or assisting the doing of a criminal act".^[9]

A.11 In most cases this means that D must do something capable of encouraging or assisting another person to do something which could fall within the definition of the conduct element of the principal offence in question, without reference to the principal offence's circumstance or consequence elements (if any).^[10] Reference is made to the circumstance and consequence elements (if any) in the provisions defining D's fault.^[11]

A.12 We can take the principal offences of rape and murder as examples:

D will commit the actus reus of the two offences in relation to rape if D's conduct could encourage or assist a man to penetrate (or continue to penetrate)^[12] another person with his penis (the conduct element of rape);^[13]

D will commit the actus reus of the two offences in relation to murder if D's conduct could encourage or assist a person to do (or continue to do) something which, if done against another person, could cause that person's death (the conduct element of murder).

A.13 Section 1(1)(a) of the Sexual Offences Act 2003 defines the conduct element of rape so that it encompasses only three types of sexual penetration.

A.14 The conduct element of murder, by contrast, can be committed in a wide range of different ways (for example, by firing a loaded gun at someone, pushing someone under a moving car, giving someone a poisoned apple, stabbing someone in the heart, dropping a concrete slab on someone's head, and so on).

A.15 Accordingly, whereas D will commit the actus reus of clause 1(1) and clause 2(1) in relation to rape only if his conduct could have encouraged or assisted one or more of three types of sexual penetration, D will commit the actus reus of clause 1(1) and clause 2(1) in relation to murder if his conduct could have encouraged or assisted another person to do any act which, if done against a person, could have resulted in a person's death.

A.16 It should not be thought, however, that the actus reus can be committed only in cases where the assistance has a direct bearing on the commission of the criminal act in question. Assistance may also be provided in a less direct sense, for example by the provision of accommodation (such as the room where the rape is expected to take place) or a service (such as driving P to the place where it is believed he will commit murder).

A.17 Although the term "criminal act" will usually be taken to be a reference to the conduct element of the principal offence, as explained above, the term will occasionally need to be construed more widely so that it encompasses the offence's circumstance element. This broader construction will be necessary if the conduct element of the principal offence is nothing more than a neutral setting for the principal offence in terms of what might be encouraged or assisted.

A.18 An obvious example is the offence of "drink-driving".^[14] If D, knowing or believing that some other person (P) will soon be driving home, encourages or assists him to drink copious amounts of whisky, it would not be possible to say that D's conduct has the capacity to encourage or assist P to commit the conduct element of the offence (that is, the driving). D's behaviour does, however, have the capacity to encourage or assist P to be intoxicated (the circumstance element) or to be intoxicated while driving (the combination of conduct and circumstance elements).^[15]

A.19 For principal offences of this type, we expect the courts to interpret the term "criminal act" so that it comprises the combination of conduct and circumstance elements. Thus, to take again the example of "drink-driving", so long as D acts with the required fault, he will be liable for encouraging or assisting a person to commit that offence if his conduct has the capacity to encourage or assist another person to drive on a road while over the limit.

A.20 It is important to note that, whatever the nature of the principal offence in question, D's conduct need only have the capacity to encourage or assist the "criminal act" of the intended or expected offence. No actual encouragement or assistance is required for liability under clause 1(1) or clause 2(1) because the principal offence may never be committed. Indeed, it may be that no-one (or no-one other than D) ever intended that it should be committed. Thus, to be liable under clause 1(1) or clause 2(1), D need only do something which could have encouraged or assisted a person (on the assumption that that person would go on to do the act D intended or expected).

A.21 It follows that, although there must always be some form of conduct on the part of D for him to be liable under Part 1 of the Bill, that conduct may be ostensibly innocent when observed without reference to D's own (culpable) state of mind. As with some other offences, particularly the inchoate offence of attempt,^[16] it is primarily D's state of mind which determines whether he is criminally liable for his conduct.

A.22 For example, if D hands a jemmy over to P, in the belief that P will commit burglary by using the jemmy to effect his entry into a building,^[17] D will be liable under clause 2(1) for encouraging or assisting burglary, regardless of P's own intentions. However, D would not be liable under clause 2(1) if he delivered the jemmy to P for an entirely innocent reason, anticipating no crime, even though the jemmy had the capacity to assist burglary and was in fact subsequently used by P to commit that offence.

A.23 An act of encouraging is of course less likely than an act of assisting to appear innocent when viewed without reference to D's state of mind. Indeed, in cases of encouraging it will often be possible to infer D's culpable state of mind from his conduct.

A.24 Because clauses 1 and 2^[18] define inchoate offences, it is necessary to ensure that they do not have too wide a reach. This is particularly true in relation to clause 2, which imposes criminal liability on "indifferent" encouragers and assisters.^[19]

A.25 Accordingly, clauses 4 and 6 provide limitations on the scope of clauses 1 and 2, clause 5 provides D with a special "reasonableness" defence if he is charged under clause 2, and clause 2(5) limits the range of principal offences to which clause 2 can be applied.

Clause 1 – intentionally encouraging or assisting a criminal act

A.26 In order to be convicted of an offence under clause 1(1), the Crown must also prove that D had the required intention, that is, that he acted with a particular purpose.^[20]

A.27 The intention requirement has been drafted so that D must intend to encourage or assist a person to commit the conduct element of the principal offence.^[21] This definition is broad enough to cover two types of intention. It covers the typical case where D's purpose is to see the conduct element of the principal offence committed; but it is also wide enough to encompass a case such as the following:

D, a wholesaler for career criminals, encourages a customer (P) to commit burglary in order to persuade him to purchase expensive cutting equipment. D's purpose is to encourage P to commit burglary, but he is indifferent as to the commission of that principal offence.

A.28 Clause 1(1)(b) is not wide enough, however, to cover the situation where D's only purpose is to do an act which, incidentally, he knows or believes will encourage or assist another person to commit an offence. For example:

D, an ironmonger, intentionally sells a piece of lead piping to a customer (P), believing that P will use it to commit murder.

A.29 In this situation D would not incur liability under clause 1(1) for intentionally encouraging or assisting murder as his only purpose is to effect a sale and make a profit, albeit in the belief that murder will be committed with the item sold. It is not D's purpose to provide encouragement or assistance in relation to any conduct which could cause death. In other words, clause 1(1) does not encompass individuals such as the "indifferent" shopkeeper or householder who sells or lends an item in the belief that it will be used to achieve a particular criminal end.^[22]

A.30 The application of clause 1(1) may be illustrated with reference, again, to the principal offences of murder and rape:

For D to be liable under clause 1(1) for intentionally encouraging or assisting murder, it will be necessary for the Crown to prove that it was D's purpose to encourage or assist a person to commit the conduct element of murder.^[23] It will not be necessary for the Crown to prove that it was D's purpose that a person should be killed.^[24]

For D to be liable under clause 1(1) for intentionally encouraging or assisting rape, the Crown will have to prove that it was D's purpose to encourage or assist a man to commit the conduct element of rape.^[25] It will not be necessary for the Crown to prove that D's purpose extended to the complainant's lack of consent.^[26]

A.31 However, this does not mean that no culpable state of mind is required with respect to the circumstance and consequence elements of the principal offence. In addition to the requirement of intention described above, the Crown must also prove (where applicable) that:

(1) D believed that, if the conduct element of the principal offence were to be committed, it would be committed by a person acting with the fault required for liability as a perpetrator (or D himself acted with such fault);^[27] and

(2) D believed that the conduct element, if committed, would be committed in the circumstances and with the consequences required for the principal offence to be committed (or D intended that the conduct element should be done in those circumstances with those consequences).^[28]

A.32 The requirement set out in paragraph A.31(1), summarising clause 1(2), applies only to principal offences with a fault element, whether that fault element has been defined in "subjective" terms (that is, by reference to the perpetrator's state of mind) or in "objective" terms (that is, by reference to the state of mind of a reasonable person) or both.^[29]

A.33 Thus, subject to the additional requirements of clause 1(3) being satisfied:

D would be liable under clause 1(1) in relation to murder if he intends to encourage or assist a person to commit the conduct element of murder and believes that, were a person to commit that conduct element, he would do so with the intention to kill or cause grievous bodily harm;

D would be liable under clause 1(1) in relation to rape if he intends to encourage or assist a person to commit the conduct element of rape (any of three types of sexual penetration) and believes that, were a person to commit that conduct element, he would do so without a reasonable belief that his victim is consenting^[30] (and with the intention to penetrate).^[31]

A.34 For most principal offences with a fault requirement, the definition of that fault will relate to the consequence and circumstance elements of the offence's actus reus. Accordingly, because under clause 1(2) D must have belief in relation to the fault of an anticipated perpetrator, it is likely that D will also have belief in relation to the occurrence of the consequence and circumstance elements of the principal offence for the purposes of clause 1(3).^[32]

A.35 The requirements of clause 1(3) are set out in paragraph A.31(2). This provision is of particular importance if the principal offence is:

(1) a "no fault" offence; or

(2) an offence requiring proof of fault which has a consequence and/or circumstance element, but no fault requirement in relation to one or both of those elements.^[33]

A.36 Where the principal offence has no requirement of fault, D's liability for intentionally encouraging or assisting the commission of the offence is governed by clause 1(3) rather than clause 1(2). For example:

For D to be liable for intentionally encouraging or assisting the no fault offence of child rape, contrary to section 5 of the Sexual Offences Act 2003,^[34] D must believe that, if the intended conduct element of rape were to be committed by another person, the victim would be under the age of 13^[35] (or D must intend that the conduct element of rape should be committed against a child under the age of 13).^[36]

A.37 Both clause 1(2) and clause 1(3) apply if the offence is defined with a requirement of fault but, as noted above, clause 1(3) is particularly important if the actus reus of the principal offence has a consequence or circumstance element to which the fault requirement does not relate. Murder is an offence of this sort because the actus reus requires the death of a human being (the consequence element) but the fault requirement can be satisfied by an intention to cause nothing more than grievous bodily harm.

A.38 Consider the following variations of a broadly similar factual scenario:

P approaches D and asks if he can borrow D's baseball bat. P says he intends to use the bat to "sort out V". D provides P with the bat, unclear as to P's exact intention but hoping that P will use it to cause V serious harm. P does nothing with the bat.

P approaches D and asks if he can borrow D's baseball bat. P says he intends to use the bat to "sort out V". D provides P with the bat, unclear as to P's exact intention but hoping that P will use it to kill V. P does nothing with the bat.

A.39 In the first version, D is not liable under clause 1(1) for intentionally encouraging or assisting murder, even though he would have acted with the fault for murder if he himself had committed the conduct element of that offence.^[37] Although clause 1(2) is satisfied, clause 1(3) is not because D does not believe that V will be killed^[38] (and it was not D's purpose that V should be killed).^[39]

A.40 In the second version, however, D is liable for the offence of intentionally encouraging or assisting murder. By providing P with a baseball bat, D commits the actus reus, that is, he does an act capable of assisting another person to commit the conduct element of murder.^[40] With regard to the fault requirement: D intended to assist P to commit the conduct element of that offence (indeed he intended that the conduct element should be committed);^[41] D's state of mind was such that, if he had killed V himself, he would have been liable for murder as a perpetrator;^[42] and it was his purpose that a person (V) should die.^[43]

A.41 Clause 1(1) will of course be relied on in cases where the principal offence is not committed. But it will also be relied on in cases where the principal offence is committed but the Crown cannot prove that the perpetrator (P) was actually encouraged or assisted by D's conduct for the doctrine of secondary liability to bite.^[44] Consider the following examples:

D distributes a leaflet encouraging acts of extreme violence against individuals who have a particular political affiliation. D's purpose is to encourage his readers to commit such acts, so that one or more acts of extreme violence will be committed.

D enters P's bedroom to find him engaged in sexual intercourse with V. D knows that V is not consenting, and that P is aware of this, but he nevertheless positions himself in front of P to watch, intending to encourage P by his being there. P continues to rape V, aware that D is watching, but he is not influenced by D's presence to any extent.

A.42 In the first example, D is liable under clause 1(1) in relation to the principal offence of causing grievous bodily harm with intent,^[45] even if no one from the targeted party is ever attacked. Under our proposals for secondary liability,^[46] D would be liable for the completed offence of causing grievous bodily harm with intent if that offence is subsequently committed by a person (P) who has read and been encouraged by D's leaflet.

A.43 In the second example, although P is wholly unaffected by D's presence, D is liable under clause 1(1) in relation to the principal offence of rape.^[47] By positioning himself in front of P, D has done something capable of encouraging a person to commit the conduct element of rape;^[48] D's purpose is to encourage a person to commit the conduct element of rape;^[49] and D believes that, if the conduct element continues, it will be continued by a person acting with the fault for rape^[50] (that is, the absence of a reasonable belief that V is consenting) in the circumstances (that is, without consent) necessary for rape to be committed.^[51] Under our proposals for secondary liability, D would be liable for the completed offence of rape if P was encouraged by D's presence.

A.44 Finally, with regard to principal offences which have a circumstance element, clause 1 also encompasses the type of situation where D intentionally encourages or assists a person to do the offence's criminal act but he does not care whether the circumstance element is present. For example, if D orders P to have sexual intercourse with V "whether she consents or not", D is liable for intentionally encouraging or assisting rape because D believes that, if P were to have sexual intercourse with V, P "would do it" in the circumstances^[52] and with the fault^[53] required for rape should V refuse to consent.

Clause 2 – encouraging or assisting criminal acts believing that one or more of them will be done

A.45 Clause 2(1) sets out the second basis for inchoate liability for encouraging or assisting crime under Part 1 of the Bill, defined in terms of D's belief rather than his purpose. As explained above,^[54] D can be liable under clause 2(1) only if he does an act which is capable of encouraging or assisting another person to do a "criminal act" in relation to the principal offence he believes will be committed.^[55] It is irrelevant whether or not the principal offence is ever committed.^[56]

A.46 If the principal offence is committed by P, under our proposals for secondary liability an "indifferent" encourager or assister^[57] (D) would be liable for P's principal offence only if he was a participant in a joint venture to commit an offence, and he foresaw the possible commission of the principal offence in furtherance of the venture.^[58] In other circumstances, indifferent encouragers or assisters acting with the required belief would be convicted of the clause 2(1) offence in relation to the anticipated offence. They would not be secondarily liable for the offence actually committed by P.

A.47 The fault element for liability under clause 2(1) can be broken down as follows, for offences defined with a requirement of fault:^[59]

(1) D believes that another person will commit the conduct element of the principal offence in question;^[60]

(2) D believes that his own conduct will encourage or assist a person to commit the conduct element of the principal offence;^[61] and

(3) D believes that the conduct element of the principal offence, if committed, will be committed by a person acting with the fault required for the principal offence (or D himself acts with such fault)^[62] in the circumstances and with the consequences, if any, required for the principal offence to be committed.^[63]

A.48 Given that clause 2 defines the parameters for inchoate liability, we expect the words "will" and "would" to be interpreted narrowly. In particular, D would not be liable under this clause if he merely believed that the principal offence might be committed.

A.49 Consider the following two examples:

P calls on D, his neighbour, and asks if he can borrow D's baseball bat, expressing his wish to give V a severe beating. D is indifferent to V's fate, but lends the bat to P to maintain good neighbourly relations.

D, the inventor, manufacturer or wholesaler of equipment designed to reverse the flow of current through electricity meters, supplies one such "black box" to another person in the belief that it will be used by him (or the end-user) to divert electricity to avoid having to pay for it.

A.50 In the first example, D is liable under clause 2(1) for the offence of knowingly encouraging or assisting the principal offence of causing grievous bodily harm with intent ("the section 18 offence"),^[64] whether or not P goes on to commit the section 18 offence. D's conduct in lending his baseball bat is an act capable of assisting another person (P) to commit the conduct element of the section 18 offence,^[65] D believes that P will use the bat to commit the conduct element of that offence,^[66] D believes that P will act with the fault required for such liability^[67] (that is, the intention to cause serious harm)^[68] and D believes that P will, by his conduct, cause the required consequence for section 18 liability (that is, serious harm).^[69]

A.51 In the second example, D is liable for the offence of encouraging or assisting the offence of abstracting electricity^[70] because he does something capable of assisting a person to commit the conduct element of that offence;^[71] he believes that someone will commit the conduct element^[72] (and that his "black box" will provide assistance);^[73] and he believes that, if a person commits the conduct element, he will do so with the required fault (that is, dishonestly)^[74] and cause electricity to be abstracted.^[75]

A.52 Clause 2(2) addresses the specific problem where D's conduct has the capacity to provide another person with encouragement or assistance in relation to a range of possible principal offences,^[76] and D believes that one of the offences in that range will be committed (with his encouragement or assistance) but he is unclear which offence it will be.^[77] It is the type of situation which arose (in the context of secondary liability) in DPP for Northern Ireland v Maxwell.^[78] The following factual scenario provides an example:

D, a taxi driver, is asked by a group of armed men to drive to a public house in the East End of London. D believes that they will commit an offence of violence and, from their comments to each other, he concludes that the offence might be robbery or it might be causing grievous bodily harm with intent.

A.53 In a case of this sort, the Crown will prosecute D under clause 2(2) in relation to just one of the possible principal offences he believed might be committed,^[79] such as the offence of robbery in the above example. D may, however, be prosecuted in the same proceedings under clause 2(1) and clause 2(2) if the requirements of both subsections are met,^[80] as in the following example:

D, a taxi driver, drives a group of armed men to a public house believing that they will commit robbery (clause 2(1)) and also believing that they will commit an additional offence against the landlord which might be causing him actual bodily harm or causing him grievous bodily harm with intent (clause 2(2)).

A.54 To be liable under clause 2(2) in relation to the selected principal offence the fault requirements in clause 2(3) (for principal offences requiring proof of fault) and clause 2(4) must also be proved.

A.55 Finally, clause 2(5) provides that D cannot be liable under clause 2(1) or clause 2(2) in relation to either of those offences, or the clause 1(1) offence, or any of the offences listed in Schedule 1 to the Bill. The list of offences in Schedule 1 includes the statutory forms of incitement, the inchoate offences of attempt and conspiracy and the offences of post-offence assisting in sections 4(1) and 5(1) of the Criminal Law Act 1967.

Clause 3 – supplemental provisions

A.56 Much of clause 3 has already been explained.^[81] In other respects, the clause is self-explanatory.

PART 2: DEFENCES AND LIMITATIONS ON LIABILITY

Clause 4 – the "good purpose" defence

A.57 If the Crown establishes a prima facie case that D is liable under Part 1 of the Bill D will be entitled to an acquittal if he can prove, on the balance of probabilities, that his purpose was to prevent the commission of the principal offence in question (or some other offence) or to prevent or limit the occurrence of harm and that his conduct was reasonable in the circumstances.^[82] For example:

D involves himself in a joint venture to commit burglary. D's defence is that his only purpose in becoming involved was to obtain sufficient information about the offence to be able to inform the police in advance to ensure that the other participants would be caught in the act.

A.58 If the jury accepts that D's explanation is more likely than any other explanation to be true and that it was reasonable for D to act in that way, he will not be guilty under Part 1 in relation to burglary. We would expect this defence to be extended to cover conspiracy (and secondary liability) too in due course.

A.59 If D is charged under clause 1(1), on the basis that his purpose was to encourage or assist a person to commit a criminal act in relation to the principal offence, it may well be difficult for him to discharge the burden of proving that the requirements of the defence are made out, but he is not precluded from relying on the defence. The defence might, for example, be made out in the following situation:

Having found out that P, a person motivated by his hostility towards a racial group, is considering whether to steal a wallet from or, alternatively, to cause a serious injury to a person belonging to that group, D encourages P to commit the theft.

A.60 D could give evidence in his defence, to a charge under clause 1(1) of intentionally encouraging or assisting theft, that he encouraged P to steal in order to prevent the more serious crime being committed. If the jury accepts that D acted to prevent a serious attack by P on another person, and regard his act of encouragement as a reasonable course of conduct in the circumstances, D will not be guilty of the offence charged.

Clause 5 – the "reasonableness" defence

A.61 This clause provides a limit to the scope of the offence of encouraging or assisting crime contrary to clause 2(1) (or clause 2(2)). It cannot be relied on if D is charged under clause 1(1).

A.62 D will not be convicted of the clause 2(1) (or clause 2(2)) offence if, in the circumstances he was aware of,^[83] or in the circumstances he reasonably believed existed,^[84] it was reasonable for him to act as he did.^[85] In each case it will be for the tribunal of fact^[86] to decide whether, notwithstanding D's prima facie liability, he ought nevertheless to be acquitted. It is therefore for D to prove that the defence is made out on the balance of probabilities.

A.63 D would no doubt wish to avail himself of the defence against a charge under clause 2(1) arising out of the following scenarios:

D, a motorist, changes motorway lanes to allow a following motorist (P) to overtake, even though D knows that P is speeding;

D, a reclusive householder, bars his front door to a man trying to get into his house to escape from a prospective assailant (P);

D, a member of a DIY shop's check-out staff, believes the man (P) purchasing spray paint will use it to cause criminal damage.

Clause 6 – the "Tyrrell" defence

A.64 This clause retains the exemption from liability established at common law in the case of Tyrrell.^[87] D cannot be liable under Part 1 in relation to a (statutory) "protective" principal offence^[88] if he falls within the category of persons the principal offence was enacted to protect^[89] and he would be regarded as the "victim" if the offence were committed against him.^[90] Consider the following example:

D1 (a 12-year-old girl) and D2 (D1's 15-year-old female friend) both encourage a man (P) to have sexual intercourse with D1 (an act which, if committed by P, would amount to the principal offence of child rape).^[91]

A.65 On the basis that D1 would be regarded as the "victim" of P's offence, and that Parliament intended section 5 of the Sexual Offences Act 2003 to protect children under the age of 13 from themselves, as well as from predatory adults:

(1) D1 would not be liable under Part 1 of the Bill in relation to the offence of child rape even though it was her purpose to encourage P to have sexual intercourse with her.

(2) D2 would be liable under clause 1(1) in relation to that principal offence.

A.66 We would expect this defence to be extended to cover conspiracy (and secondary liability) in due course.^[92]

PART 3: JURISDICTION AND PROCEDURE

Clauses 7 and 8 with Schedule 2 – jurisdiction

A.67 As a general rule the criminal courts in England and Wales are empowered to convict an offender if the offence in question occurred in England or Wales, but not if the offence was committed elsewhere. The power to convict any particular offender is rarely in issue in criminal proceedings in this jurisdiction because the vast majority of cases tried here relate to offences allegedly committed here. Similarly, we would expect the vast majority of prosecutions brought under this Bill to raise no jurisdictional issues. The Crown's case will usually be that D's relevant conduct occurred, and the anticipated^[93] principal offence was expected to occur, wholly within the jurisdictional territory of England and Wales. Nevertheless, because of the multifarious ways in which encouragement or assistance may be provided, and the fact that assistance or encouragement may be sent from, and to, any part of the world, the question of jurisdiction is of particular importance in the context of this Bill.

A.68 Accordingly, clause 7 and Schedule 2 set out a number of rules on jurisdiction (for liability under Part 1 of the Bill) to which the court will refer for any allegation falling outside the usual state of affairs.

A.69 Clause 7(1) sets out the rule that D may be convicted of the Part 1 offences regardless of his own location at any relevant time, if he knew or believed that the anticipated principal offence might be committed wholly or partly in England or Wales.

A.70 This provision therefore allows D to be convicted here in the usual "domestic" situation where his own conduct occurred in England or Wales and he believed that the offence would (or might) also be committed in England or Wales; but it also allows D to be convicted here if his own conduct occurred outside England and Wales if he believed that the offence might be committed wholly or partly in England or Wales. For example:

D in Afghanistan sends an e-mail to P in Manchester directing him to plant a bomb in central London.

A.71 Clause 7(2) provides that if the Crown cannot prove that D knew or believed that the anticipated principal offence might be committed wholly or partly in England or Wales, he may be convicted of the offences in Part 1 only if the facts fall within paragraph 1, 2 or 3 of Schedule 2.

A.72 Clause 8 provides, in addition, that where Schedule 2 is relied on the proceedings must be instituted by, or with the consent of, the Attorney General.

Schedule 2, paragraph 1

A.73 If the Crown cannot prove that D knew or believed that the anticipated principal offence might be committed wholly or partly in England or Wales, the court has jurisdiction by virtue of paragraph 1 if:

(1) D's relevant conduct occurred wholly or partly in England or Wales;

(2) D knew or believed that the anticipated principal offence might occur wholly or partly in a place outside England and Wales; and

(3) the anticipated principal offence, if committed in that place, is one for which a perpetrator could be convicted in England or Wales (if he satisfies a relevant citizenship or nationality or residence requirement, if any).

A.74 For example:

D in London sends a parcel of poison to a person in Paris encouraging him to use it to commit murder in Brussels. D can be convicted in England or Wales of the offence of intentionally encouraging or assisting murder because, if murder were to be committed in Brussels, it would be possible to convict the perpetrator in England or Wales if he satisfies the requirement of being a "subject of her Majesty".^[94]

D in London sends a letter to a person in Jakarta encouraging him to commit an act of piracy on the high seas. D can be convicted in England or Wales of the offence of intentionally encouraging or assisting piracy on the high seas because, if piracy were to be committed on the high seas, it would be possible to convict the perpetrator in England or Wales.^[95]

Schedule 2, paragraph 2

A.75 If the Crown cannot prove that D knew or believed that the anticipated principal offence might be committed wholly or partly in England or Wales, and paragraph 1 cannot be relied on, the court has jurisdiction by virtue of paragraph 2 if:

(1) D's relevant conduct occurred wholly or partly in England or Wales;

(2) D knew or believed that the anticipated principal offence might occur wholly or partly in a place outside England and Wales; and

(3) the anticipated principal offence,^[96] if committed, would also be an offence under the law in force in that place.

A.76 For example:

D in London e-mails P in Brisbane encouraging him to commit robbery while he is in Sydney. D can be convicted in England or Wales of the offence of intentionally encouraging or assisting robbery because robbery is also an offence in New South Wales.

Schedule 2, paragraph 3

A.77 Paragraph 3 provides the court with jurisdiction in the situation where D's relevant conduct took place wholly outside England and Wales (and the Crown cannot prove that D knew or believed that the anticipated principal offence might be committed wholly or partly in England or Wales). In this situation, D may be convicted in England or Wales of an offence in Part 1 if:

(1) D knew or believed that the anticipated principal offence might occur wholly or partly in a place outside England and Wales; and

(2) it would be possible to convict D in England or Wales (as the perpetrator of the principal offence) if he were to commit the principal offence in that place.

A.78 For example:

D (a British citizen) in the Philippines encourages a man to rape a 10-year-old girl in Manila. D can be convicted in England or Wales of an offence of encouraging or assisting child-rape because, as a British citizen, it would be possible to convict D in England or Wales of child-rape if he perpetrated that offence in Manila.^[97]

D (a British citizen) in Canada encourages a person to commit murder in Vancouver. D can be convicted in England or Wales of an offence of encouraging or assisting murder because, as a British citizen, it would be possible to convict him in England or Wales of murder if he perpetrated that offence in Canada.^[98]

Clause 9 – mode of trial

A.79 This clause is self-explanatory.

Clause 10 – unknown mode of participation

A.80 One of the most important practical aspects of the doctrine of secondary liability is that an accused person may be convicted of an offence if it cannot be proved whether he was a perpetrator or an accessory but it can be proved that he must have been one or the other.

A.81 Clause 10 provides a similar rule, applicable in cases where the principal offence has actually been committed, rendering the accused guilty of an offence under Part 1 of the Bill if it can be proved that he was either a perpetrator or guilty of one of the new inchoate offences but his precise role cannot be proved.

A.82 The following example illustrates how clause 10 could be applied in practice:

A1 and A2, the parents of an infant child (V), are proved to have been present during the assault which resulted in V's death, and it can be proved that A1 or A2 perpetrated the offence. There is, however, insufficient evidence to convict either or both of them as perpetrators. If it can be proved that A1 was the perpetrator and it is possible to infer that A2 provided indifferent encouragement or assistance during the offence by failing to take reasonable steps to intervene, and vice versa,^[99] then both A1 and A2 can be convicted (under clause 2(1)) of encouraging or assisting an offence against the person, possibly murder.

A.83 Proving liability under clause 2(1) for encouraging or assisting murder would be difficult in many cases, however, because of the strict fault requirement imposed by clause 2(4)(b) in relation to the consequence element of the offence (death).

A.84 For this reason it would be advisable for the Crown to include on the indictment an alternative count of encouraging or assisting a non-fatal offence against the person,^[100] although much will depend on the facts of the particular case.^[101] It would also be advisable for the police to charge A1 and A2 with the alternative offence (or offences) under clause 1(1) or clause 2(1) when charging them with having committed the substantive offence as alleged perpetrators.

A.85 It is important to note that the focus for liability under Part 1, in cases where clause 10 is relied on, remains the offence D intended or expected rather than the offence which P actually committed. Thus, if D thought that P was going to kick their screaming child, V1, but P actually punched their quiet child, V2, D would be liable for his or her non-intervention in respect of V1 even though the actual principal offence was committed against V2. That said, in the sort of case described in our example, where D is present during P's commission of the principal offence against their child, V, and there is no difference between the offence in D's mind and the offence actually being committed, the issue will be of no practical importance. For this reason, in any such case we would expect the jury to be directed with reference to the principal offence actually committed by P.

Clause 11 – inability to do a particular criminal act

A.86 This clause has been explained above.^[102]

Clause 12 – penalties

A.87 This clause is self-explanatory.

Part 4: CONSEQUENTIAL ALTERATIONS

Clause 13 – common law incitement

A.88 This clause is self-explanatory.

Clause 14 – amendments and repeals

A.89 Clause 14(1), with Part 1 of Schedule 3 to the Bill, provides that references in other statutory provisions to the common law offence of incitement are to be read as references to the offences in Part 1 of the Bill. This provision does not affect any statutory offence of incitement, such as the offence of soliciting murder.^[103]

A.90 The other provisions in this clause are self-explanatory.

PART 5: INTERPRETATION

Clauses 15 and 16 – encouraging and assisting

A.91 The Bill does not contain a definition of conduct which is capable of encouraging or assisting. However, for the avoidance of doubt, clause 15 provides that conduct by D which is capable of encouraging or assisting a person to do a criminal act includes:

(1) conduct which could encourage by putting pressure on someone (for example where D threatens another person);^[104] and

(2) conduct which could reduce the possibility of criminal proceedings being brought in respect of the act (such as the provision of advice to a person on how to avoid detection, or the provision of a gun to be used against any eye-witness).^[105]

A.92 Clause 15(2)(b) provides, moreover, that a reference to a person's doing something which is capable of encouraging or assisting a person to do a criminal act can be a failure to take reasonable steps to discharge a relevant duty, for example where:

D (a security guard) fails to turn on a burglar alarm in order to assist another person's unauthorised entry as a burglar;

D (a mother) carries on watching television while her new partner (P) abuses her child.

A.93 The action D must take to avoid liability in the second example, where the encouragement or assistance is provided by an indifferent failure to exercise a duty, depends on all the circumstances. It is not an unduly onerous obligation, however, for D merely needs to take reasonable steps to discharge her duty.^[106]

A.94 Clause 15(3) sets out a further limitation on the scope of liability for omissions, expressly providing that one particular type of omission – the failure to respond to a constable's request for assistance – is not encompassed by clause 15(2)(b).^[107]

A.95 Clause 16 provides that if D1 arranges for another person (D2) to do something which has the capacity to encourage or assist another person to commit a criminal act, then D1 is also to be regarded as having done D2's act. Thus, a person such as a gang leader can be held liable for the encouragement or assistance provided by a member of his gang in carrying out his instructions.

Clause 17 – acts and criminal acts

A.96 Clause 17(1) provides that a reference to an act includes a reference to a course of conduct. This applies to D's own conduct^[108] as well as any criminal act which D intends or believes will be committed by another person (for example, a course of conduct amounting to harassment).^[109]

A.97 Clause 17(2) defines the term "criminal act", as explained above.^[110]

A.98 Clause 17(3)(a) provides that a reference to the doing of a criminal act includes a reference to the continuation of an act which has already begun. This is illustrated by the second example given in paragraph A.41 where D, finding P in the act of committing rape, does an act (positioning himself to watch) which has the capacity to encourage the continuation of that offence by P.

A.99 Clause 17(3)(b) provides that a reference to the doing of a criminal act includes a reference to an attempt to do such an act. For example, D can be liable under clause 2(1) in relation to the principal offence of burglary if he sells P a jemmy in the belief that it will be used to attempt burglary, even though he believes that the attempt will fail.^[111]

Clause 18 – intention

A.100 This clause provides, in effect, that the word "intention" as used in clause 1 of the Bill excludes the criminal law concept of foresight of a virtual certainty. In other words, references to D's intention are references to his purpose.

PART 6: FINAL PROVISIONS

A.101 Clauses 19 to 22 are self-explanatory.

Note 1    Clause 2(2) sets out an additional offence which can most easily be understood once the offence in cl 2(1) has been explained.    [Back]

Note 2    Clause 13. The various statutory offences of incitement are unaffected by the Bill.    [Back]

Note 3    Clause 3(1).    [Back]

Note 4    We are working towards producing a draft Bill on secondary liability and innocent agency in the near future.    [Back]

Note 5    See cl 1(1)(a) and cl 2(1)(a).    [Back]

Note 6    Clause 1(1)(b).    [Back]

Note 7    Clause 2(1)(b).    [Back]

Note 8    See cl 15(2)(b). In this commentary references to D’s doing something or to his conduct should be taken to include references to his being in breach of a duty to do something.    [Back]

Note 9    Clause 1(1)(a) and cl 2(1)(a).    [Back]

Note 10    Clause 17(2) explains that a principal offence’s “criminal act” is a reference to “an act (or a failure to act) that falls within the definition of the act (or failure to act) that must be proved in order for a person [P] to be convicted of the offence”.    [Back]

Note 11    Clause 1(2)–(3) and cl 2(3)–(4).    [Back]

Note 12    Clause 17(3)(a).    [Back]

Note 13    Sexual Offences Act 2003, s 1(1)(a). Lack of consent is the circumstance element of rape.    [Back]

Note 14    Road Traffic Act 1988, s 5(1)(a).    [Back]

Note 15    Other examples are speeding, dangerous driving and being drunk and disorderly.    [Back]

Note 16    Criminal Attempts Act 1981, s 1.    [Back]

Note 17    Theft Act 1968, s 9(1)(a).    [Back]

Note 18    As explained in n 1, cl 2 contains two offences, defined by cl 2(1) and cl 2(2).    [Back]

Note 19    D is “indifferent” because he does not act with the intention required for liability under cl 1(1). Rather, D believes, or knows, that an offence will be committed or is in the process of being committed.    [Back]

Note 20    In this context intention does not include foresight of the consequences of one’s conduct (see cl 18).    [Back]

Note 21    Clause 1(1)(b) with cl 17(2). Of course, if the principal offence is one of the exceptional offences having a neutral conduct element (in terms of what can be encouraged or assisted), so that the term “criminal act” must include a reference to the combination of conduct and circumstances, then D must intend to encourage or assist the doing of that conduct in those circumstances (see paras A.17 to A.19 above).    [Back]

Note 22    However, it will be seen below that individuals of this sort may be guilty of the inchoate offence created by cl 2(1).    [Back]

Note 23    See paras A.12 and A.14 above.    [Back]

Note 24    The consequence element of murder.    [Back]

Note 25    Defined in s 1(1)(a) of the Sexual Offences Act 2003.    [Back]

Note 26    The circumstance element of rape.    [Back]

Note 27    Clause 1(2). The alternative in cl 1(2)(b) – D acts with the fault for the principal offence – means that D can be liable under cl 1(1) if his state of mind is that of a person who commits the principal offence through an innocent agent. Where cl 1(2)(b) is relied on, it is to be assumed that D is able to do the criminal act in question (cl 11).    [Back]

Note 28    Clause 1(3). The first of these two alternatives is found in cl 1(3)(b); the second alternative, summarised here in parentheses, is found in cl 1(3)(a).    [Back]

Note 29    In other words, cl 1(2) applies to all principal offences which are not “no fault” offences.    [Back]

Note 30    Sexual Offences Act 2003, s 1(1)(c).    [Back]

Note 31    Sexual Offences Act 2003, s 1(1)(a). It may be that the “intentionally penetrates” requirement falls outside the definition of fault. See n 34 below.    [Back]

Note 32    Clause 1(3)(b).    [Back]

Note 33    An example is murder (see para A.37).    [Back]

Note 34    The likelihood is that s 5 of the 2003 Act will be regarded as a no fault offence, notwithstanding the reference in s 5(1)(a) to intentional penetration by P. In this context, the word “intentionally” is likely to be regarded as a reference to the concept of volition (part of the actus reus of the offence) rather than an element of fault. (If the allegation is one of attempt, however, it will be necessary to prove the intention to penetrate in accordance with the terms of s 1(1) of the Criminal Attempts Act 1981.)    [Back]

Note 35    Clause 1(3)(b)(i).    [Back]

Note 36    Clause 1(3)(a)(i).    [Back]

Note 37    Clause 1(2)(b). D is, however, liable for intentionally encouraging or assisting the offence of causing grievous bodily harm with intent (Offences Against the Person Act 1861, s 18).    [Back]

Note 38    Clause 1(3)(b)(ii).    [Back]

Note 39    Clause 1(3)(a)(ii).    [Back]

Note 40    Clause 1(1)(a). See paras A.12 and A.14 above.    [Back]

Note 41    Clause 1(1)(b).    [Back]

Note 42    Clause 1(2)(b).    [Back]

Note 43    Clause 1(3)(a)(ii).    [Back]

Note 44    Proof of actual encouragement or assistance would seem to be necessary at common law, and it will be required under our forthcoming proposals for reforming the doctrine.    [Back]

Note 45    Offences Against the Person Act 1861, s 18.    [Back]

Note 46    In line with the common law doctrine in this respect.    [Back]

Note 47    Sexual Offences Act 2003, s 1.    [Back]

Note 48    Clause 1(1)(a).    [Back]

Note 49    Clause 1(1)(b).    [Back]

Note 50    Clause 1(2)(a).    [Back]

Note 51    Clause 1(3)(b)(i).    [Back]

Note 52    Clause 1(3)(b).    [Back]

Note 53    Clause 1(2)(a).    [Back]

Note 54    Paras A.8 to A.22.    [Back]

Note 55    Clause 2(1)(a) and cl 17(2). Clause 2(1)(a) provides that D must do an act capable of encouraging or assisting the doing of a criminal act (the “act in question”). Clause 2(6) provides that the “principal offence” is the offence in relation to which the “act in question” is a criminal act.    [Back]

Note 56    Clause 3(1).    [Back]

Note 57    “Indifferent” because it is not D’s purpose to encourage or assist another person to commit (the conduct element of) the offence in question.    [Back]

Note 58    The present common law doctrine is wider, encompassing indifferent encouragers and assisters who are not involved in a joint venture to commit an offence.    [Back]

Note 59    Clause 2(1)(b) and cl 2(3)–(4) (read with cl 17(2)) For principal offences having no fault requirement, cl 2(3) is irrelevant.    [Back]

Note 60    Clause 2(1)(b)(i). This is satisfied if D believes that a person will commit the conduct element only if one or more conditions are satisfied (cl 3(5)). For example, D may be liable under cl 2(1) for knowingly encouraging or assisting murder, by providing P with an empty gun, if he believes that P will obtain ammunition for it from another source.    [Back]

Note 61    Clause 2(1)(b)(ii).    [Back]

Note 62    Clause 2(3). The alternative in cl 2(3)(b) – D acts with the fault for the principal offence – means that D can be liable under cl 2(1) if his state of mind, in this context, is that of a person who commits the principal offence through an innocent agent. Where cl 2(3)(b) is relied on, it is to be assumed that D is able to do the criminal act in question (cl 11).    [Back]

Note 63    Clause 2(4).    [Back]

Note 64    Offences Against the Person Act 1861, s 18.    [Back]

Note 65    Clause 2(1)(a).    [Back]

Note 66    Clause 2(1)(b)(i)–(ii).    [Back]

Note 67    Clause 2(3)(a).    [Back]

Note 68    Section 18 of the Offences Against the Person Act 1861 is defined with alternative requirements of fault, one of which is the intention to cause grievous (that is, serious) bodily harm.    [Back]

Note 69    Clause 2(4)(b).    [Back]

Note 70    Theft Act 1968, s 13.    [Back]

Note 71    Clause 2(1)(a). The conduct element of this offence is any act which could lead to the consequence of electricity being used, wasted or diverted.    [Back]

Note 72    Clause 2(1)(b)(i).    [Back]

Note 73    Clause 2(1)(b)(ii).    [Back]

Note 74    Clause 2(3)(a).    [Back]

Note 75    Clause 2(4)(b). This situation is now covered by the common law offence of conspiracy to defraud (see Hollinshead [1985] 1 AC 975, where D supplied an undercover police officer with such “black boxes”). We recommended the abolition of conspiracy to defraud in our Report on Fraud, Law Com No 276 at pp 83–84, accepting that this could create a lacuna in cases where a person assisted in a fraud (p 100, n 14). The cl 2(1) offence of encouraging or assisting a crime would address this lacuna should conspiracy to defraud be abolished. It would also cover the type of situation addressed in n 15 of p 101 of our Report on Fraud, where D is an assister on the fringe of a conspiracy, but does not know the details of what the protagonists are planning. D would be liable under cl 2(1) on the basis of the offence he anticipated, regardless of what anyone else intended to do.    [Back]

Note 76    Clause 2(2)(a).    [Back]

Note 77    Clause 2(2)(b). By virtue of cl 3(6) D is to be taken to believe that at least one criminal act will be done if he believes that one will be done if certain conditions are met.    [Back]

Note 78    [1978] 1 WLR 1350.    [Back]

Note 79    Clause 3(4).    [Back]

Note 80    Clause 3(3).    [Back]

Note 81    See n 3 (para A.3), n 56 (para A.45), n 60 (para A.47), n 77 (para A.52), n 79 (para A.53) and n 80 (para A.53).    [Back]

Note 82    The legal burden is on D to prove the good purpose and that his conduct was reasonable in the circumstances.    [Back]

Note 83    Clause 5(1)(a).    [Back]

Note 84    Clause 5(2)(a)–(b).    [Back]

Note 85    Clause 5(1)(b) and cl 5(2)(c).    [Back]

Note 86    The jury for trials on indictment in the Crown Court. The magistrates or district judge for summary trials in magistrates’ courts.    [Back]

Note 87    [1894] 1 QB 710.    [Back]

Note 88    Clause 6(1)(a) and cl 6(2).    [Back]

Note 89    Clause 6(1)(b).    [Back]

Note 90    Clause 6(1)(c) explains that the victim is “the person in respect of whom the principal offence was committed (or would have been if it had been committed)”.    [Back]

Note 91    Sexual Offences Act 2003, s 5.    [Back]

Note 92    It should be noted that the Tyrrell defence in cl 6 is not limited to sexual offences.    [Back]

Note 93    See cl 7(3)–(4).    [Back]

Note 94    Offences Against the Person Act 1861, s 9.    [Back]

Note 95    Because piracy on the high seas is a crime against the law of nations, P may be convicted of the offence in any sovereign state.    [Back]

Note 96    An offence in England and Wales.    [Back]

Note 97    Sexual Offences Act 2003, s 72 and sch 2.    [Back]

Note 98    Offences Against the Person Act 1861, s 9.    [Back]

Note 99    The encouragement or assistance arises from A2’s failure to take reasonable steps to discharge his or her parental duty to protect the child (see cl 15(2)(b)).    [Back]

Note 100    For example, encouraging or assisting the offence of causing grievous bodily harm with intent to cause such harm, contrary to s 18 of the Offences Against the Person Act 1861.    [Back]

Note 101    If there is no separate count on the indictment, the court may be able to rely on s 6(3)–(4) of the Criminal Law Act 1967 to convict D of a lesser (included) offence under Part 1 in cases where the jury is not satisfied that D committed the offence charged.    [Back]

Note 102    See n 27 (para A.31) and n 62 (para A.47).    [Back]

Note 103    Offences Against the Person Act 1861, s 4.    [Back]

Note 104    Clause 15(1).    [Back]

Note 105    Clause 15(2)(a).    [Back]

Note 106    D’s failure to discharge a duty will of course almost certainly be regarded as unreasonable if it was his purpose to encourage or assist another person to commit the principal offence, contrary to cl 1(1), as in the first example.    [Back]

Note 107    D’s failure to provide a police officer with assistance when called upon to prevent a breach of the peace is itself a common law offence, but cl 15(3) ensures that D will not be liable under Part 1 of the Bill for any principal offence he believes will be committed (or intends should be committed) by his passive failure to help the police when called upon to provide assistance.    [Back]

Note 108    D could be liable under Part 1 if he does a number of acts, none of which would be regarded as having the capacity to encourage or assist the doing of a criminal act, if the cumulative effect of D’s course of conduct would be regarded as having the capacity to encourage or assist.    [Back]

Note 109    Protection from Harassment Act 1997, s 1.    [Back]

Note 110    Paras A.10 to A.19.    [Back]

Note 111    If the principal offence in question is itself the offence of attempt, contrary to s 1 of the Criminal Attempts Act 1981, then cl 17(3)(b) is inapplicable. This explains the words in parentheses. It is to be noted that D can be liable under cl 1(1), but not cl 2(1) (or cl 2(2)), in relation to a principal offence of attempt (see cl 2(5)(b) and para 11 of sch 1).    [Back]