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Cite as: [2006] EWLC 300

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The Law Commission

(Report No 300)

INCHOATE LIABILITY FOR ASSISTING AND ENCOURAGING CRIME

A Report

Presented to the Parliament of the United Kingdom by the Secretary of State for Constitutional Affairs and Lord Chancellor by Command of Her Majesty July 2006

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.
The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman
Professor Hugh Beale QC, FBA
Mr Stuart Bridge
Dr Jeremy Horder
Mr Kenneth Parker QC

The Chief Executive of the Law Commission is Mr Steve Humphreys.
The Law Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.
The terms of this report were agreed on 24 May 2006.
The text of this report is available on the Internet at:
http://www.lawcom.gov.uk

CONTENTS

PART 1: INTRODUCTION	PART 1
THE NATURE OF LIABILITY FOR ENCOURAGING OR ASSISTING THE COMMISSION OF OFFENCES	1.6
PRINCIPAL OFFENDERS AND ACCESSORIES	1.6
SECONDARY LIABILITY	1.8
INCHOATE LIABILITY	1.9
TWO REPORTS RATHER THAN ONE	1.20
AN OUTLINE OF THE RECOMMENDATIONS CONTAINED IN THIS REPORT	1.25
THE STATUTORY OFFENCES THAT WE ARE RECOMMENDING	1.25
LIABILITY FOR ENCOURAGING OR ASSISTING MORE THAN ONE PRINCIPAL OFFENCE	1.27
THE PENALTY FOR EACH OFFENCE	1.29
DEFENCES AND EXEMPTIONS	1.30
THE STRUCTURE OF THIS REPORT	1.35
PART 2: SHOULD THE DOCTRINE OF SECONDARY LIABILITY BE ABOLISHED?	PART 2
INTRODUCTION	2.1
THE PROPOSALS IN THE CP	2.4
RESPONSES TO THE CP	2.7
FORENSIC CONSIDERATIONS	2.8
PUBLIC ACCEPTABILITY	2.11
CONDEMNATION, CULPABILITY AND LABELLING	2.14
THE CONNECTION BETWEEN D'S CONDUCT AND P'S OFFENCE	2.19
CONCLUSION	2.20
PART 3: AN OUTLINE OF THE PRESENT LAW OF INCHOATE LIABILITY FOR ENCOURAGING OR ASSISTING CRIME	PART 3
INTRODUCTION	3.1
A SERIOUS GAP IN THE COMMON LAW	3.2
THE DISTORTION OF OTHER OFFENCES TO COMPENSATE FOR THE LACK OF INCHOATE LIABILITY FOR ASSISTING CRIME	3.9
STATUTORY CONSPIRACY	3.10
CONSPIRACY TO DEFRAUD	3.15
THE COMMON LAW OFFENCE OF INCITEMENT	3.18
INTRODUCTION	3.18
THE ELEMENTS OF THE OFFENCE	3.19
THE PROSCRIBED CONDUCT	3.19
THE CONDUCT INCITED	3.25
INCITING P TO DO AN ACT WHICH, IF DONE, WOULD NOT INVOLVE P COMMITTING ANY OFFENCE	3.25
P IS AGED UNDER 10	3.26
THE OFFENCE CANNOT BE COMMITTED BY P BECAUSE IT EXISTS FOR P'S PROTECTION	3.28
P DOES NOT SATISFY THE FAULT ELEMENT OF THE OFFENCE	3.30
P ACTING UNDER DURESS	3.31
INCITING P TO COMMIT AN INCHOATE OFFENCE	3.33
INCITEMENT TO COMMIT CONSPIRACY	3.35
INCITEMENT TO COMMIT INCITEMENT	3.36
INCITEMENT TO COMMIT ATTEMPT	3.38
INCITING P TO COMMIT AN OFFENCE AS AN ACCESSORY	3.39
THE FAULT ELEMENT OF INCITEMENT	3.44
INTRODUCTION	3.44
D'S ATTITUDE TOWARDS THE COMMISSION OF THE ACT INCITED	3.45
KNOWLEDGE OF THE CIRCUMSTANCES OF THE ACT INCITED	3.46
DEFENCES	3.49
WITHDRAWAL	3.49
CRIME PREVENTION	3.50
IMPOSSIBILITY	3.55
PART 4: THE CASE FOR AND AGAINST INCHOATE LIABILITY FOR ASSISTING THE COMMISSION OF AN OFFENCE	PART 4
INTRODUCTION	4.1
THE ARGUMENTS IN FAVOUR OF INCHOATE LIABILITY FOR ASSISTING	4.4
COMBATING SERIOUS CRIME	4.4
THE RATIONALE UNDERLYING INCHOATE LIABILITY	4.5
ELIMINATING THE ELEMENT OF CHANCE	4.6
SUFFICIENTLY CULPABLE CONDUCT	4.7
DETERRENCE	4.8
A MORE COHERENT APPROACH	4.9
LABELLING AND PUNISHMENT	4.10
RESTORING THE PROPER BOUNDARIES OF OFFENCES	4.11
THE ARGUMENTS AGAINST INCHOATE LIABILITY FOR ASSISTING	4.12
LIABILITY FOR OTHERWISE LAWFUL CONDUCT	4.12
PREMATURE INTERVENTION	4.13
DISPARITY BETWEEN THE LIABILITY OF P AND D	4.14
VAGUENESS AND UNCERTAINTY	4.15
ADDRESSING THE OBJECTIONS	4.17
LIABILITY FOR OTHERWISE LAWFUL CONDUCT	4.17
PREMATURE INTERVENTION	4.20
DISPARITY BETWEEN THE LIABILITY OF D AND P	4.22
VAGUENESS AND UNCERTAINTY	4.27
CONCLUSIONS	4.28
PART 5: A SCHEME OF INCHOATE LIABILITY FOR ENCOURAGING OR ASSISTING THE COMMISSION OF OFFENCES	PART 5
INTRODUCTION	5.1
THE STRUCTURE OF THE SCHEME PROPOSED IN THE CP	5.2
THE GENERAL FEATURES OF THE INCHOATE SCHEME THAT WE ARE RECOMMENDING	5.4
THE NEW OFFENCES	5.4
POTENTIAL OVERLAP WITH SECONDARY LIABILITY	5.8
UNKNOWN MODE OF PARTICIPATION	5.10
THE IMPLICATIONS OF THE NEW OFFENCES BEING INCHOATE OFFENCES	5.12
D'S LIABILITY IS FOR ENCOURAGING OR ASSISTING AN ABSTRACT AND NOT A PARTICULAR PRINCIPAL OFFENCE	5.13
THE OFFENCE COMMITTED IS NOT THE OFFENCE THAT D BELIEVED WOULD BE COMMITTED	5.14
D'S ACT OF ENCOURAGEMENT OR ASSISTANCE LEADS TO THE COMMISSION OF MULTIPLE OFFENCES	5.15
A PERSON OTHER THAN P COMMITS THE OFFENCE THAT D HAS ENCOURAGED OR ASSISTED	5.18
DEFINING THE NEW OFFENCES	5.19
INTRODUCTION	5.19
THE CONDUCT ELEMENT	5.20
INTRODUCTION	5.20
CRIMINAL ACT	5.23
"CAPABLE OF" ENCOURAGING OR ASSISTING	5.27
ENCOURAGING	5.32
ENCOURAGING RATHER THAN INCITING	5.32
THE MEANING OF ENCOURAGING	5.36
ASSISTING	5.46
THE MEANING OF ASSISTING	5.46
ADVICE AS ASSISTANCE	5.47
ACTS OF INSUBSTANTIAL ASSISTANCE	5.50
MUST D'S ENCOURAGEMENT OR ASSISTANCE BE DIRECTED AT A PARTICULAR PERSON OR PERSONS?	5.52
OMISSIONS AS ACTS CAPABLE OF ENCOURAGING OR ASSISTING	5.53
THE PROPOSALS IN THE CP	5.59
RESPONSES TO THE PROPOSALS IN THE CP	5.61
CONCLUSIONS AND RECOMMENDATIONS	5.62
FAILURE TO DISCHARGE A DUTY	5.62
FAILURE TO ASSIST A CONSTABLE TO PREVENT A BREACH OF THE PEACE	5.66
FAILURE TO EXERCISE AN ENTITLEMENT TO PREVENT OR CONTROL THE ACTIONS OF P	5.68
THE FAULT ELEMENT	5.71
INTRODUCTION	5.71
D'S FAULT IN RELATION TO THE COMMISSION OF THE CRIMINAL ACT	5.73
THE PROPOSALS IN THE CP	5.75
RESPONSES TO THE PROPOSALS IN THE CP	5.78
IDENTIFYING THE APPROPRIATE FAULT ELEMENT	5.79
CONCLUSIONS AND RECOMMENDATIONS	5.88
D'S STATE OF MIND WHERE HIS OR HER CONDUCT IS CAPABLE OF ENCOURAGING OR ASSISTING MORE THAN ONE CRIMINAL ACT	5.90
D'S STATE OF MIND AS TO THE MENS REA OF P IN DOING THE CRIMINAL ACT	5.100
THE CIRCUMSTANCE AND CONSEQUENCE ELEMENTS, IF ANY, OF THE PRINCIPAL OFFENCE	5.106
CONSEQUENCES	5.107
THE CORRESPONDENCE PRINCIPLE	5.107
CIRCUMSTANCES	5.109
STRICT LIABILITY	5.109
IMPLICATIONS FOR THE NEW OFFENCES THAT WE ARE RECOMMENDING	5.110
THE MEANING OF FAULT IN RELATION TO CIRCUMSTANCES AND CONSEQUENCES	5.113
SUBSTANTIVE OFFENCES	5.113
INCHOATE OFFENCES	5.114
CONCLUSIONS AND RECOMMENDATIONS	5.118
CONDITIONAL INTENTS AND BELIEFS WITH REGARD TO CIRCUMSTANCES	5.122
PENALTIES	5.127
MODE OF TRIAL	5.128
PART 6: DEFENCES AND EXEMPTIONS	PART 6
INTRODUCTION	6.1
DEFENCES AND EXEMPTIONS THAT WE ARE RECOMMENDING	6.4
ACTING TO PREVENT THE COMMISSION OF OFFENCES OR TO PREVENT OR LIMIT HARM	6.4
THE PROPOSALS IN THE CP	6.5
RESPONSES TO THE PROPOSALS IN THE CP	6.6
CONCLUSIONS	6.8
SHOULD THOSE TO WHOM THE DEFENCE IS AVAILABLE BE RESTRICTED?	6.9
SHOULD INCIDENTAL OFFENCES BE EXCLUDED FROM THE SCOPE OF THE DEFENCE?	6.12
A REQUIREMENT OF ACTING REASONABLY	6.13
RECOMMENDATION	6.16
IMPLICATIONS FOR CONSPIRACY	6.17
A DEFENCE OF ACTING REASONABLY	6.18
RECOMMENDATION	6.26
AN EXEMPTION FROM LIABILITY IN CASES OF PROTECTIVE OFFENCES	6.27
THE COMMON LAW	6.27
THE SEXUAL OFFENCES ACT 2003	6.29
THE PROPOSALS IN THE CP	6.34
RESPONSES TO THE PROPOSALS IN THE CP	6.37
CONCLUSIONS	6.38
NON-SEXUAL OFFENCES	6.43
RECOMMENDATION	6.44
DEFENCES THAT WE ARE NOT RECOMMENDING	6.45
INDIFFERENT ASSISTANCE IN THE COURSE OF EMPLOYMENT	6.46
THE PROPOSALS IN THE CP	6.46
RESPONSES TO THE PROPOSAL IN THE CP	6.48
CONCLUSION	6.49
INDIFFERENT ASSISTANCE IN THE COURSE OF A BUSINESS	6.50
CONCLUSION	6.49
WITHDRAWAL	6.52
THE PROPOSALS IN THE CP	6.55
RESPONSES TO THE PROPOSALS IN THE CP	6.56
CONCLUSION	6.57
IMPOSSIBILITY	6.59
THE PROPOSALS IN THE CP	6.59
RESPONSES TO THE PROPOSALS IN THE CP	6.60
CONCLUSION	6.61
PART 7: INFINITE INCHOATE LIABILITY AND RELATED TOPICS	PART 7
INTRODUCTION	7.1
THE CURRENT LAW	7.6
THE PROPOSALS IN THE CP	7.7
RESPONSES TO THE PROPOSALS IN THE CP	7.9
CONCLUSIONS	7.10
COMMITTING THE CLAUSE 1 OFFENCE OR A CLAUSE 2 OFFENCE BY ENCOURAGING OR ASSISTING ANOTHER PERSON TO COMMIT THOSE OFFENCES	7.10
RECOMMENDATION	7.16
COMMITTING THE CLAUSE 1 OFFENCE OR A CLAUSE 2 OFFENCE BY ENCOURAGING OR ASSISTING OTHERS TO CONSPIRE TO COMMIT AN OFFENCE	7.19
RECOMMENDATION	7.21
COMMITTING THE CLAUSE 1 OFFENCE OR A CLAUSE 2 OFFENCE BY ENCOURAGING OR ASSISTING ANOTHER PERSON TO ATTEMPT TO COMMIT AN OFFENCE	7.22
RECOMMENDATION	7.24
PART 8: EXTRA-TERRITORIAL JURISDICTION	PART 8
INTRODUCTION	8.1
GENERAL PRINCIPLES	8.2
INCHOATE OFFENCES	8.7
CONSPIRACY	8.8
INTRODUCTION	8.8
CONSPIRACY FORMED OUT OF THE JURISDICTION TO COMMIT A CRIME WITHIN THE JURISDICTION	8.9
CONSPIRACY FORMED WITHIN THE JURISDICTION TO COMMIT A CRIME ABROAD	8.10
COMMON LAW	8.10
STATUTE	8.11
INCITEMENT	8.12
AN ACT OF INCITEMENT DONE ABROAD TO COMMIT AN OFFENCE WITHIN THE JURISDICTION	8.13
COMMON LAW	8.14
STATUTE	8.15
OUR RECOMMENDATIONS IN RELATION TO THE NEW OFFENCES	8.16
PRINCIPAL OFFENCE ANTICIPATED TO TAKE PLACE WHOLLY OR PARTLY IN ENGLAND AND WALES	8.17
PRINCIPAL OFFENCE NOT ANTICIPATED TO TAKE PLACE WHOLLY OR PARTLY IN ENGLAND AND WALES	8.19
D'S ACT DONE WITHIN THE JURISDICTION	8.19
D'S ACT TAKES PLACE WHOLLY OUTSIDE THE JURISDICTION	8.25
ROLE OF THE ATTORNEY GENERAL	8.27
IMPLICATIONS FOR CONSPIRACY	8.29
POSTSCRIPT	8.30
EUROPEAN ARREST WARRANT	8.30
INTRODUCTION	8.30
THE EXTRADITION ACT 2003	8.38
THE TERRITORIAL CONDITIONS	8.39
THE OFFENCE IS COMMITTED OUTSIDE THE TERRITORY OF THE ISSUING STATE	8.39
THE OFFENCE IS COMMITTED WITHIN THE TERRITORY OF THE ISSUING STATE	8.40
PART 9: LIST OF RECOMMENDATIONS	PART 9
APPENDIX A: COMMENTARY TO THE CRIME (ENCOURAGING AND ASSISTING) BILL	APPENDIX A
CRIME (ENCOURAGING AND ASSISTING) BILL	BILL
APPENDIX B: SUICIDES: AIDED OR ASSISTED?	APPENDIX B

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