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Cite as: [2007] EWLC 305(5)

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PART 5

DEFENCES AND EXEMPTIONS

INTRODUCTION

5.1 In this Part we consider defences and exemptions. We are considering them in relation to two of the three forms of liability that we have previously discussed: secondary liability and liability as a principal offender by virtue of innocent agency. However, neither the defence nor the exemption that we are recommending would apply to the offence of causing P to commit a no-fault offence.

5.2 In the CP, our approach to defences and exemptions reflected the fact that not only were we proposing that secondary liability should be replaced by a scheme of inchoate liability but also that there should be two distinct inchoate offences. Broadly, we proposed that there should be no defences and exemptions available to those who encouraged the commission of an offence. By contrast, we proposed that some defences and exemptions should be available to those who indifferently assisted the commission of an offence.

5.3 In the first report,^[1] we made recommendations concerning the defences which ought to be available to the inchoate offences of assisting and encouraging that we were recommending. We concluded that there should be two defences:

(1) acting in order to prevent the commission of offences or to prevent, or limit, harm; and

(2) acting reasonably in all the circumstances.^[2]

However, we qualified (2) by recommending that the defence of acting reasonably in all the circumstances should not be available if D intended to assist or encourage P to do a criminal act.^[3]

5.4 In addition, we recommended that there should be an exemption from liability where D assisted or encouraged P to commit an offence which was intended to protect a category of persons and D was not only a member of the category but also a victim of the offence.^[4]

5.5 In this report, we are considering which defences and exemptions should be available to D where D's liability is secondary rather than inchoate. We have born in mind that our recommendations in relation to secondary liability, if implemented, would narrow the scope of secondary liability. Apart from offences committed by P as an incident of a joint criminal venture, D would incur secondary liability only if he or she intended P to do a criminal act. This narrowing of secondary liability leads us to believe that the following defences ought not to be available.

DEFENCES THAT WE ARE NOT RECOMMENDING

Acting reasonably in all the circumstances

5.6 In line with the view that we took in relation to inchoate liability, we are not recommending that acting reasonably in all the circumstances should be a defence to secondary liability. It should not be open to D to plead that he or she acted reasonably when his or her intention was that P should commit the conduct element of the principal offence. The general policy of the criminal law does not permit a person who intentionally sets out to commit an offence to excuse or justify him or herself by reliance on any motive the tribunal of fact happens to find sufficiently compelling.

Assistance in the course of employment

5.7 Under our recommendations, the employee (D) who assists his or her employer (P) to commit an offence would no longer be secondarily liable merely because he or she believed that P would commit an offence. Rather, the employee would be secondarily liable only if he or she acted intending that the conduct element of the principal offence be committed. If so, the employee ought to be convicted of the principal offence subject to the other requirements of secondary liability being satisfied. It should be no defence that the employee was doing what his or her employer had ordered.

Assistance in the course of business

5.8 The same considerations apply as in the case of assistance rendered by employees.

DEFENCE AND EXEMPTION THAT WE ARE RECOMMENDING

5.9 In this section, we outline the defence and the exemption that we are recommending. As with inchoate liability for assisting and encouraging crime we are recommending that there should be:

(1) a defence of acting to prevent the commission of crime or to prevent, or limit, harm; and

(2) an exemption from liability where D assists or encourages P to commit an offence which is intended to protect a category of persons and D is both a member of the category and a victim of the offence.

We are conscious that we will be repeating the arguments that we set out in the first report. However, we believe that it would be inappropriate to merely refer the reader to the first report.

Acting to prevent the commission of offences or to prevent, or limit, harm

5.10 There is uncertainty as to the circumstances in which acting for the purposes of law enforcement is a defence to secondary liability. Frustrating the commission of crime can take one of three forms:

(1) encouraging or assisting the commission of an offence with the purpose of preventing its commission. An example is where a police informer or undercover officer does something to encourage or assist the commission of a robbery, but the purpose is to ensure that it is not committed;

(2) encouraging or assisting the commission of an offence not in order to prevent its commission but in order to reduce its harmful effects;^[5]

(3) encouraging the commission or attempted commission of an offence in order to prevent the commission of future offences, for example an undercover officer who acts in a way designed to encourage a hitherto undetected serial rapist to attack her.

The proposals in the CP

5.11 In the CP, we proposed that there should be a defence of law enforcement to the proposed offence of assisting (but not encouraging) crime. We proposed that the defence should be available to any individual whose 'overall course of conduct' was directed towards frustrating the commission of the principal offence.^[6] We invited comment on whether the defence should extend to incidental offences, for example a theft committed in order to obtain property to be used in a robbery.

Responses to the proposals in the CP

5.12 The majority of respondents who addressed the issue thought that there should be a defence of acting in order to prevent crime. Of the majority, some felt that the assister should be exonerated for the offence that he or she intended to frustrate but not for an incidental offence. Some respondents expressed misgivings about the defence being available to private citizens.

5.13 One respondent, while accepting that the defence should be wide enough to exonerate those involved in undercover "sting" operations, such as test purchases and "manna from heaven" operations,^[7] thought that a criterion of 'reasonableness' should be built into the defence. Most respondents believed that D should bear the burden of proving the defence.

5.14 We believe that in principle there should be a defence of acting, whether by assisting or encouraging, in order to prevent the commission of an offence or in order to prevent or limit harm. We do so for two reasons:

(1) it is in the public interest that acts be done in order to prevent crime or to prevent or limit the occurrence of harm. Accordingly, an act of encouragement or assistance, the overall purpose of which is to prevent crime or to prevent or limit harm, is justified because of its value to society; and

(2) those whose overall purpose in encouraging or assisting the commission of an offence is to prevent crime or to prevent or limit harm are acting as good citizens and should not be stigmatised or punished for doing so.

Should those to whom the defence is available be restricted?

5.15 At one stage, we thought that the defence should only be available to formal and informal agents of the state - police and customs officers, local authority trading standards officers, agents working under their control and civilian informers subject to regulation and supervision by the relevant law enforcement authority. We thought that the arguments in favour of such a restriction were:

(1) law enforcement is primarily the responsibility of the state. Private citizens and the media should be discouraged from participating in offences on their own initiative even if the motive is to prevent crime. Important considerations are the safety of the citizen, the dangers of private vendettas being pursued and private acts hindering the activities of the state's law enforcement agencies;

(2) there should be external controls in order to ensure that D's involvement is proportionate to the overall aim of an operation to prevent crime; and

(3) to obviate the possibility of the defence being raised by criminals who might prepare the necessary groundwork for a false defence of crime prevention prior to and during their involvement in a criminal enterprise.

5.16 At the same time, we recognised that the defence would be open to abuse even if restricted to agents of the state. Test purchases can be made when there are no reasonable grounds for suspecting or believing that a trader is flouting the law. Police informers sometimes have their own agenda and it may sometimes be unclear whether their actions have been properly supervised and controlled.

5.17 In addition, we now believe that it would be exceedingly difficult to define exhaustively the persons who would be eligible to plead the defence. It is vital that the question of who can rely on the defence does not turn on technicalities. Accordingly, we are not recommending that the defence should be limited to particular individuals or categories.

Should incidental offences be excluded from the scope of the defence?

5.18 We believe that the defence should exonerate D for encouraging or assisting any offence provided D's overall purpose was to prevent the commission of crime or to prevent harm and provided that D acted reasonably in the circumstances:

Example 5A

P is a member of a gang planning an armed robbery. D, who has infiltrated the gang, tells P where to steal a lorry which can be used in the robbery. D does so in order to maintain credibility with members of the gang. D's aim is to prevent the commission of the robbery.

Admittedly, D's assistance was not for the purpose of preventing P committing theft. However, that ought not to preclude D pleading the defence to a charge of encouraging or assisting theft. D ought to be able to say that what he or she did was in order to frustrate the commission of another offence. The critical issue is the reasonableness of D's conduct: was it reasonable in the circumstances to assist the commission of offence x in order to prevent the commission of offence y?

A requirement of acting reasonably

5.19 In the CP, we said:

… it should be enough that [D] believes that his act of assistance is necessary as part of the implementation of his purpose of preventing the commission of the principal crime.^[8]

However, we now believe that in order to rely on the defence, it must have been reasonable in the circumstances for D to have acted as he or she did.

5.20 This is to ensure that D can only successfully plead the defence if what D did was proportionate to the seriousness of the offence or harm that D was trying to prevent or limit. It is not in the public interest for D to encourage or assist the commission of an offence if the offence in question is more serious than the offence that D is seeking to prevent. In this regard, the requirement of reasonableness is a restraining principle and will operate as a curb on those who might think that any conduct is justifiable in the public interest. For example, the defence should not be available if D encourages P to shoot V when V is stealing some vegetables from P's allotment, even if D believes that it is necessary to shoot V in order to prevent V stealing the vegetables.

5.21 D should bear the legal burden of proving the defence on a balance of probabilities. We do not believe that placing the legal burden on D is incompatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms. This is because the prosecution will still have had to prove the elements of the offence and if D raises the defence he or she is likely to be the only or, at least, the primary source of information as to his or her purpose.

Implications for conspiracy

5.22 We repeat what we said in the first report. It is beyond the scope of this report to make formal recommendations in relation to the inchoate offence of conspiracy. However, we think that it would be anomalous if there were a defence of crime prevention to encouraging or assisting the commission of an offence but not to conspiring to commit an offence. Accordingly, we suggest that consideration be given to reversing the decision of the Privy Council in Yip Chiu-Cheung v R^[9] by way of a statutory defence of crime prevention in cases of conspiracy.

Recommendation^[10]

5.23 We recommend that it should be a defence to liability for an offence as a secondary party^[11] if D proves that:

(1) he or she acted for the purpose of:

(a) preventing the commission of either the offence that he or she was encouraging or assisting or another offence; or

(b) to prevent or limit the occurrence of harm; and

(2) it was reasonable to act as D did in the circumstances.

An exemption from liability in cases of protective offences

The common law

5.24 In Tyrrell,^[12] an adult (P), had unlawful sexual intercourse with a child aged between 13 to 16 (D).^[13] It was alleged that D had encouraged P to commit the offence. It was held that D could not be convicted of committing the offence as a secondary party (or of inciting the offence) because the offence had been enacted for the purpose of protecting a category of persons and D fell within the category. This was because the relevant statutory provision was "passed for the purpose of protecting young women and girls against themselves".^[14] According to Lord Coleridge CJ, Parliament could not "have intended that the girls for whose protection [the offence] was passed should be punishable under it for the offences committed upon themselves".^[15]

5.25 This suggests that the underlying principle is that where the purpose of a statutory offence is to protect a category of persons, no member of that category can be convicted of committing the offence as a secondary party or of inciting its commission. The principle has been applied to the offence of incest,^[16] although it is arguable that the basis of the offence was eugenic rather than protectionist.^[17] The principle has also been applied where D, a prostitute, was charged with being an accessory to her husband's offence of living on immoral earnings.^[18] The offence existed in part to protect prostitutes but that was not its only function. An additional reason for the offence was to prevent fortunes being made by those who organise prostitution.

The Sexual Offences Act 2003

5.26 The Sexual Offences Act 2003 is largely silent on the Tyrrell exemption. The Act creates specific sexual offences designed to protect children under 13, namely rape of a child under 13,^[19] assault of a child under 13 by penetration^[20] and sexual assault of a child under 13.^[21] At the same time, it is clear that Parliament intended that these offences were capable of being committed by a child under the age of 13.^[22]

Example 5B

D, a girl aged 12, encourages P, a boy aged 12, to allow her to perform oral sex on him. P permits D to do this.

P, by intentionally penetrating D's mouth with his penis, commits the offence of rape of a child under 13. Presumably, D is not an accessory to that offence because she can rely on the Tyrrell exemption. However, D is guilty of the offence of sexual assault of a child under 13 because she has intentionally touched P and the touching is sexual.^[23] Presumably, P is not an accessory to that offence because he can rely on the Tyrrell principle.

5.27 In example 5B, D encourages P to commit an offence against herself. By contrast:

Example 5C

D, a girl aged 12, encourages P, a boy aged 12, to allow D's friend V, a girl aged 12, to perform oral sex on P. P permits V to do this.

P is guilty of rape of a child under 13. V is not guilty of that offence by virtue of the Tyrrell principle but, like D in example 5B, is guilty of sexual assault of a child under 13. Again, as in example 5B, presumably P is not an accessory to that offence. Whether D is guilty of both offences as an accessory depends on whether the Tyrrell exemption is available to those who are not victims in the sense that they are not the person against whom the offence is committed. In Tyrrell, the girl was herself the victim of the offence and in all the other cases where the principle has been applied, the person within the protected category has been the victim of the principal offence. On the other hand, there is no case where the courts have expressly held that the exemption is only available to a person who is or would be the victim of the principal offence.

The proposals in the CP

5.28 In the CP, we described the Tyrrell exemption as being "of uncertain content, and uncertain effect".^[24] In setting out our provisional proposals for an inchoate offence of assisting crime, we said provisionally that the exemption should be "stated much more widely than at present".^[25] We believed that D ought not to be liable for assisting the commission of a statutory offence if "his conduct is inevitably incidental to its commission and that conduct is not made criminal by that offence".^[26]

5.29 The fault element that we were proposing for the offence of assisting crime was 'knowledge or belief' on the part of D that P "is doing … or will do … acts that do or will involve the commission of an offence by [P]…".^[27] Some assisters would not only satisfy the 'knowledge or belief' test but would also have the more culpable fault element of intending that P should commit the offence with their assistance. We inclined to the view that the wider exemption of 'incidental involvement' should either not be available in such cases or at least should be available only in a very limited number of cases.^[28] We invited comment on what those cases might be.

5.30 The fault element that we proposed for encouraging crime was intention on D's part that P should commit the principal offence.^[29] We proposed that as a general rule it would be "inappropriate to extend the defence to an encourager".^[30] However, we thought that there might be cases, conspicuously those of sexual offences against minors, where the victim "should be exculpated even though she has encouraged rather than assisted in the commission of the offence".^[31] We invited comment on what those offences might be.

Responses to the proposals in the CP

5.31 Amongst those respondents who addressed the issue, the majority, with little or no elaboration, agreed with our proposal for a 'more widely' stated exemption. However, Professor Sir John Smith strongly disagreed, describing our proposal as 'dangerously wide':

If a licensee sells liquor to a constable on duty, I see every reason why the constable should be guilty of [assisting] whether he incited the offence or not. His conduct is inevitably incidental to the commission of the offence, but the offence exists for the protection of the public, not the constable… . The conduct of the recipient of controlled drugs is inevitably incidental to the offence of supplying drugs to another, but if the recipient is buying a ton of the stuff he must surely be guilty of [assisting].

Conclusions

5.32 We now believe that the fact that D's assistance is or will be incidental to the commission of the principal offence should not in itself be a reason for exonerating D. The correct approach is one that is based on statutory interpretation. D should be exempt from liability only if, in enacting the principal offence, it was Parliament's intention to afford protection to a particular category of persons and D falls within that category.

5.33 However, we recognise that, when enacting an offence, Parliament may have more than one objective. We do not think that the exemption should be confined to encouraging or assisting the commission of principal offences, the only purpose of which is the protection of a particular category of persons. It should suffice that one reason for enacting the offence was to protect a particular category of persons.

5.34 A more difficult issue is whether the exemption should be confined to cases where D would be a 'victim', were the principal offence to be committed. Parliament when enacting an offence for the protection of a category of persons does not usually distinguish between different individuals within the category. Instead, each person within the category is considered worthy of protection irrespective of his or her individual traits:

Example 5D

D, a girl aged 15 and sexually very experienced, encourages P, a sexually inexperienced and naïve young man aged 18, to engage in sexual activity with her.^[32] P knows D is aged 15.

Under the current law, the fact that D is active in tempting P and is sexually very experienced is irrelevant. The offence was enacted for the protection of children under 16 and D is such a person. Under the current law, D is not guilty of inciting P to engage in sexual activity.

5.35 In example 5D, it might be thought that there are two reasons that justify the conclusion that D is a 'victim'. First, if the offence were committed, it would be committed against her. Secondly, she is a 'victim' because she is within the protected category and is deemed to be in need of protection from others and from herself, despite her sexual experience.

5.36 However, D may not be the person against whom the offence is committed:

Example 5E

D, a girl aged 15 and sexually inexperienced, encourages P a young man aged 18, to engage in sexual activity with her friend V, a 15 year old girl, who is sexually very experienced. V also encourages P to engage in sexual activity with her.

V is a 'victim' because, as in the case of D in example 5D, she is within the protected category and because she is the person against whom the offence would be committed. However, in contrast to example 5D, if D in example 5E is to be viewed as a 'victim' it is not because she is the person against whom the offence is committed but only by virtue of being a person who falls within the protected category.

5.37 In example 5E, it might be thought that, as V's need for protection is no greater than D's, if V is able to rely on the exemption, so too should D. However, by contrast:

Example 5F

D, a sexually experienced girl aged 14, encourages her brother P, who is aged 18, to engage in sexual activity with D's friend, V, a girl aged 13 and a virgin.

If D is to be exonerated, it can only be because she is a member of the protected category. On balance, we do not believe that it would be right that she should be exempt from liability merely on that basis. D is prepared to encourage or assist the commission of an offence against a vulnerable person. We accept that victims will not always be as vulnerable as V is in example 5F. However, we believe that it would be very unsatisfactory for D's liability to depend on the extent of the victim's vulnerability, not least because the trial process would then involve scrutiny of the victim's character and previous behaviour.

Non-sexual offences

5.38 There is no justification for confining the exemption to sexual offences. Parliament has created offences other than sexual offences for the protection of a particular category of persons. Thus, the Care Standards Act 2000 includes offences designed to protect vulnerable adults residing in care homes. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 contains offences which are in part designed to protect people who are trafficked for exploitation. The Gangmasters (Licensing) Act 2004 contains offences which are in part designed to protect certain categories of workers.

Recommendation^[33]

5.39 We recommend that D should be exempted from liability for an offence, whether as a secondary party or by virtue of using an innocent agent, if:

(1) the offence encouraged or assisted is one that exists wholly or in part for the protection of a particular category of persons;

(2) D falls within the protected category; and

(3) D is the person in respect of whom the offence encouraged or assisted was committed or would have been had it had been committed.

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Note 1    Part 6.    [Back]

Note 2    Para 6.16.    [Back]

Note 3    Para 6.24.    [Back]

Note 4    Para 6.44.    [Back]

Note 5    Clarke (1984) 80 Cr App R 344 is an illustration. D participated in a burglary but claimed to have done so in order to prevent the other participants escaping and to ensure that the property would be recovered.    [Back]

Note 6    Para 4.125.    [Back]

Note 7    An example of a test purchase is a child under the age of 16, and under the control of the local authority trading standards department, going into a shop and buying a lottery ticket. A “manna from heaven” operation is one where police, in the course of an investigation into suspected criminal behaviour, provide an opportunity for anybody to commit the criminal behaviour that they are investigating, eg the police expose cartons of cigarettes, apparently unguarded, in the back of a van parked in the street –Williams v DPP (1993) 98 Cr App R 209.    [Back]

Note 8    Para 4.126 (emphasis added).    [Back]

Note 9    [1995] 1 AC 111.    [Back]

Note 10    Clause 7 of the Bill.    [Back]

Note 11    The defence would not be available to a person who is liable on the basis of using an innocent agent to commit an offence.    [Back]

Note 12    [1894] 1 QB 710.    [Back]

Note 13    Contrary to the Criminal Law Amendment Act 1885, s 5.    [Back]

Note 14    [1894] 1 QB 710, 712.    [Back]

Note 15    Above.    [Back]

Note 16    Whitehouse [1977] QB 868; Pickford [1995] 1 Cr App R 420.    [Back]

Note 17    Thus, the offence applied to sexual intercourse between adult brothers and sisters and to intercourse between fathers and adult daughters. See Bailey and Blackburn, “The Punishment of Incest Act 1908: A Case Study in Law Creation” [1979] Criminal Law Review 708; S. Wolfram “Eugenics and the Punishment of Incest Act 1908” [1983] Criminal Law Review 308. The offence of incest has been repealed by the Sexual Offences Act 2003. Instead, there are familial child sex offences (ss 25-29) and offences of sex with an adult relative (ss 64-65).     [Back]

Note 18    Contrary to what was the Sexual Offences Act 1956, s 30.    [Back]

Note 19    Section 5. The offence is committed if a person intentionally penetrates the vagina, anus or mouth of another with his penis. The offence is punishable by a maximum term of imprisonment for life.    [Back]

Note 20    Section 6. The offence is committed if a person intentionally penetrates the vagina or anus of another with a part of his body (other than his penis) or anything else. The offence is punishable by a maximum term of imprisonment for life.    [Back]

Note 21    Section 7. The offence is committed if a person intentionally touches another and the touching is sexual. The offence is on conviction on indictment punishable by a maximum term of 14 years’ imprisonment.    [Back]

Note 22    In addition, section 9 makes it an offence for a person aged 18 or over to engage in sexual activity with a child under 16. If the child is aged 13 to 15, the offence is only committed if the perpetrator does not reasonably believe that the child is 16 or over.     [Back]

Note 23    To add to the complexity, D and P are also guilty of the offence under section 9 of the Act, namely having sexual activity with a child.    [Back]

Note 24    Para 2.88. Professor Glanville Williams had previously expressed similar sentiments – “Victims and other exempt parties in crime” (1990) 10(3) Legal Studies 245.    [Back]

Note 25    Para 4.102.    [Back]

Note 26    Para 4.103.    [Back]

Note 27    Para 4.99(1)(a).    [Back]

Note 28    Para 4.139.    [Back]

Note 29    Para 4.163(1)(b).    [Back]

Note 30    Para 4.167.    [Back]

Note 31    Above.    [Back]

Note 32    Contrary to the Sexual Offences Act 2003, s 9.    [Back]

Note 33    Clause 6 of the Bill.    [Back]
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