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URL: http://www.bailii.org/ew/other/EWLC/2007/305(7).html
Cite as: [2007] EWLC 305(7)

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PART 7

LIST OF RECOMMENDATIONS

ASSISTING AND ENCOURAGING

7.1 We recommend that section 8 of the Accessories and Abettors Act 1861 and section 44(1) of the Magistrates' Courts Act 1980 should be repealed and replaced by a statutory provision which describes the conduct element as 'assisting or encouraging'.

7.2 We recommend that 'encouraging' a person to do an act should include doing so by emboldening, threatening or pressurising another person to do a criminal act.

7.3 We recommend that encouraging or assisting a person to do a criminal act should include doing so by failing to take reasonable steps to discharge a duty.

7.4 We recommend that a person failing to respond to a constable's request for assistance in preventing a breach of the peace should not be regarded as encouraging or assisting a person to do a criminal act.

7.5 We recommend that, in cases prosecuted under clause 1, for D to be liable for a principal offence committed by P, D must intend P to commit the conduct element of that offence.

7.6 We recommend that, although D must intend that the conduct element of the principal offence should be committed, D need not intend that it should be P who commits it.

7.7 We recommend that, if D intends P (or another person) to commit the conduct element, D need not believe that it will be committed.

7.8 We recommend that for D to be convicted of a principal offence that P commits:

(1) D must believe that P, in committing the conduct of the offence, would be committing the offence; or

(2) D's state of mind is such that, were he or she committing the conduct element of the offence, he or she would commit the offence.

JOINT CRIMINAL VENTURES

7.9 We recommend that, for D to satisfy the conduct element of clause 2, he or she must either:

(1) agree with P to commit an offence; or

(2) share a common intention with P to commit an offence.

7.10 We recommend that, if P and D are parties to a joint criminal venture, D satisfies the fault required in relation to the conduct element of the principal offence committed by P if:

(1) D intended that P (or another party to the venture) should commit the conduct element;

(2) D believed that P (or another party to the venture) would commit the conduct element; or

(3) D believed that P (or another party to the venture) might commit the conduct element.

7.11 We recommend that, even if D intended or believed that P would or might commit the conduct element of the principal offence, he or she should nevertheless not stand to be convicted under clause 2 of the principal offence if P's actions in committing the principal offence fell outside the scope of the joint venture.

7.12 We recommend that, if D and P are parties to a joint criminal venture, for D to be convicted of a principal offence that P commits, D must believe that P, in committing the conduct element of the offence, might be committing the offence.

INNOCENT AGENCY

7.13 We recommend that:

(1) if D uses an innocent agent (P) to commit an offence ("the principal offence"), D is guilty of the principal offence.

(2) P is an innocent agent if:

(a) he or she commits the conduct element of the principal offence; and

(b) he or she does not commit the principal offence itself solely because:

(i) he or she is under the age of 10;

(ii) he or she has a defence of insanity; or

(iii) he or she acts without the fault required for conviction of the principal offence.

(3) D uses P to commit the principal offence if:

(a) D intends to cause a person (whether or not P) to commit the conduct element of the principal offence;

(b) D causes P to commit the conduct element of the principal offence; and

(c) D is at fault in relation to the principal offence.

(4) D is at fault in relation to the principal offence if:

(a) where conviction of the principal offence requires proof of fault, D's state of mind is such that, were he or she to commit the conduct element of the principal offence, he or she would do it with the state of mind necessary to be convicted of the offence; or

(b) where conviction of the principal offence does not require proof of fault, D knows or believes that were a person to commit the conduct element of the principal offence, that person would do so:

(i) in the circumstances (if any); and

(ii) with the consequences (if any)

proof of which is required for conviction of the principal offence.

(5) D may be guilty of the principal offence through using P to commit the offence:

(a) even though the principal offence is one that may be committed only by a person who meets a particular description; and

(b) D does not meet that description.

(6) The common law doctrine of innocent agency should be abolished.

CAUSING THE COMMISSION OF A NO-FAULT OFFENCE

7.14 We recommend that:

(1) there should be an offence of causing the commission of a no-fault offence which D would commit if he or she caused another person to commit a no-fault offence and

(a) it was D's intention that a person should commit the offence; or

(b) D knew or believed that his or her behaviour would cause a person to commit it;

(2) a person convicted of the offence should be liable to any penalty for which he or she would be liable if convicted of the no-fault offence concerned.

DEFENCES AND EXEMPTIONS

7.15 We recommend that D should be able to avoid liability as a secondary party if he or she is able to demonstrate that he or she had negated the effect of his or her acts of assistance, encouragement or agreement before the principle offence was committed.

7.16 We recommend that it should be a defence to liability for an offence as a secondary party ^[1] 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.

7.17 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.

EXTRA-TERRITORIAL JURISDICTION

7.18 We recommend that if P commits an offence within the jurisdiction, D may always be tried within the jurisdiction no matter where he or she was at the time of rendering the assistance or encouragement or entering into the agreement.

7.19 We recommend that if P commits an offence outside the jurisdiction, D may be tried within the jurisdiction if D's behaviour takes place wholly or partly within the jurisdiction and P

(1) could be tried within the jurisdiction; or

(2) could have been tried within the jurisdiction had P satisfied a condition relating to citizenship, nationality or residence.

7.20 We recommend that if P commits an offence outside the jurisdiction , D may be tried within the jurisdiction if:

(1) D's behaviour takes place wholly outside the jurisdiction; and

(2) irrespective of whether P can be tried within the jurisdiction, D could have been tried within the jurisdiction had he or she committed the offence in the place where P committed it.

7.21 We recommend that if D uses P, an innocent agent, to commit an 'offence':

(1) if P's 'offence' is committed within the jurisdiction, D may always be tried within the jurisdiction;

(2) if P's 'offence' is committed outside the jurisdiction, D may always be tried within the jurisdiction if D's behaviour takes place wholly or partly within the jurisdiction;

(3) if P's 'offence' is committed outside the jurisdiction, D may be tried within the jurisdiction if D could have been tried within the jurisdiction if he had committed the principal offence in the place where P would have committed it had P not been an innocent agent.

7.22 We recommend that an English court should not have jurisdiction to try D for causing P to commit a no-fault offence unless:

(1) P commits the no-fault offence within the jurisdiction; and

(2) D's behaviour took place (wholly or partly) within the jurisdiction.

7.23 We recommend that if P's offence is committed outside the jurisdiction, no proceedings may be instituted except by, or with the consent of, the Attorney General.

(Signed) TERENCE ETHERTON, Chairman

HUGH BEALE

STUART BRIDGE

JEREMY HORDER

KENNETH PARKER

STEVE HUMPHREYS, Chief Executive

28 February 2007

Note 1 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]

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