Encouraging or assisting a crime in English law

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Encouraging or assisting a crime is itself a crime in English law, by virtue of the Serious Crime Act 2007. It is one of the inchoate offences of English law.

Contents

Definition

Inchoate means "just begun" or "undeveloped", and is used in English criminal law to refer to situations where, although a substantial offence has not been committed, the defendant has taken steps to commit it, or encouraged others to do so. [1] As in all inchoate offences, the defendant "has not himself performed the actus reus but is sufficiently close to doing so, or persuading others to do so, for the law to find it appropriate to punish him". [2]

Actus reus

The offences of encouraging or assisting crime under the Serious Crime Act 2007 are inchoate offences. [3] In each case, the actus reus requirement is that the defendant carry out an act capable of "encouraging or assisting" the commission of another offence. An offence is committed under section 44, if this is done with intent to do the same; under section 45 if it is done "believing that the offence will be committed and that the act will encourage or assist its commission"; or under section 46 where there are multiple possible offences being encouraged or assisted, and at least one is foreseen. [4] In contrast to statutory crimes still reliant on incitement, there is no need for the defendant to have communicated his thoughts to anyone else. For example, the act is when a letter is posted; it is not reliant on it being received by the person being incited. Since this is very wide, the courts will have to narrow it by some criterion, probably by reference to the remoteness of the encouragement to the crime. Failing to act when under a duty to do so would also qualify. [5]

"Encouraging" is not defined in the statute and can be considered in the same way as the previous crime of incitement. It does not matter if the encouragement or assistance has no effect. [6] In Invicta Plastics Ltd v Clare , [7] a company sold a device to detect radar traps used by the police; using such a device is illegal. The case also confirmed that there is no need for the incitement to be aimed at a specific person – addressing it to the world at large still constitutes incitement. [8] It was advertised illustrating its use in an illegal fashion. [9] However, in R v James [10] the selling of "black boxes" solely capable of illegally tapping mains electricity sources was not found to incite a crime. [9] In R v Marlow [11] providing information on the growing of cannabis was found to constitute an offence. [9] "Assisting" is likely to be considered similar to "aiding" in accessorial liability. Assistance can be provided indirectly, for example through a third person. [12]

Whereas incitement can only be committed when the defendant incites the principal offender, the crime of "encouraging or assisting" includes helping an accessory. [13] Whilst a section 44 offence can be committed in relation to other inchoate offences (including itself), sections 45 and 46 cannot. Crimes which are, in fact rather than law, impossible to commit yet – but will be – also fall under this offence. [14]

Mens rea

In terms of mens rea, any form of recklessness, including virtual certainty, is insufficient for an offence under Section 44, in part due to the existence of Section 45 and 46 which aid its interpretation. Offences under Sections 45 and 46 are only committed if the defendant believes that both the crime will be committed, and that the act will encourage or assist the offender: that they might do so is not enough. [15] However, it is also possible to commit these offences if the defendant commits an act capable of encouraging or assisting the commission of a crime, intending or believing that the principal offender would carry out the "act", where that may not in itself constitute a crime. However, it is necessary that the defendant intend or be reckless to any required circumstances or consequences – for example, that death was a result. Additionally, the prosecution must show that the defendant believed that (or was reckless as to) whether the act would be done with the required mens rea, or that the defendant himself has the required mens rea for the offence. [16] These amount to very complex provisions. [17]

Specific defences

There is no defence of later withdrawing from the act; however, there is one of "acting reasonably" under Section 50. This takes two forms: either that the acts themselves were reasonable; or that the defendant reasonably believed in circumstances which did not exist and acted reasonably under those circumstances. The existence of this defence has been attacked by professors of criminal law Andrew Simester and Bob Sullivan on the grounds it may be acting as a "sop" to counteract excess brevity in other sections of the act. [18] Victims are extended the "Tyrell" defence – that one cannot aid, abet, counsel or procure an offence against oneself – although exactly when a victim is protected can be unclear. [19]

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<span class="mw-page-title-main">Accessories and Abettors Act 1861</span> United Kingdom legislation

The Accessories and Abettors Act 1861 is a mainly repealed Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated statutory English criminal law related to accomplices, including many classes of encouragers (inciters). Mainly its offences were, according to the draftsman of the Act, replacement enactments with little or no variation in phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It collected the relevant parts of Peel's Acts and others.

Intoxication in English law is a circumstance which may alter the capacity of a defendant to form mens rea, where a charge is one of specific intent, or may entirely negate mens rea where the intoxication is involuntary. The fact that a defendant is intoxicated in the commission of a crime — whether voluntarily or not — has never been regarded as a full defence to criminal proceedings. Its development at common law has been shaped by the acceptance that intoxicated individuals do not think or act as rationally as they would otherwise, but also by a public policy necessity to punish individuals who commit crimes.

Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets another person in the commission of a crime. It exists in a number of different countries and generally allows a court to pronounce someone guilty for aiding and abetting in a crime even if he or she is not the principal offender. The words aiding, abetting and accessory are closely used but have differences. While aiding means providing support or assistance to someone, abetting means encouraging someone else to commit a crime. Accessory is someone who in fact assists "commission of a crime committed primarily by someone else".

In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting crime; and conspiring to commit. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "Queen's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

Voluntary intoxication, where a defendant has wilfully consumed drink or drugs before committing acts which constitute the prohibited conduct of an offence, has posed a considerable problem for the English criminal law. There is a correspondence between incidence of drinking and crimes of violence, such as assaults and stabbings. Accordingly, there is a debate about the effect of voluntary intoxication on the mental element of crimes, which is often that the defendant foresaw the consequences, or that they intended them.

References

Citations

  1. ↑ Herring (2008). p. 771.
  2. ↑ Herring (2008). p. 772.
  3. ↑ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 402.
  4. ↑ Simester et al. (2010). p. 287.
  5. ↑ Simester et al. (2010). p. 291.
  6. ↑ Simester et al. (2010). p. 288.
  7. ↑ [1976] RTR 251 (DC)
  8. ↑ Herring (2008). p. 793.
  9. 1 2 3 Simester et al. (2010) p. 289.
  10. ↑ R v James (1985) 82 Crim LR 897 (CA)
  11. ↑ R v Marlow [1997] Crim LR 897 (CA)
  12. ↑ Simester et al. (2010). p. 290.
  13. ↑ Simester et al. (2010). p. 292.
  14. ↑ Simester et al. (2010). p. 293.
  15. ↑ Simester et al. (2010.) p. 294.
  16. ↑ Simester et al. (2010). p. 295.
  17. ↑ Simester et al. (2010). p. 296.
  18. ↑ Simester et al. (2010). p. 298–99.
  19. ↑ Simester et al. (2010). p. 299–300.

Bibliography

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