Serious Crime Bill [HL]

moved AmendmentNo. 94A: 94A: Clause 40, page 25, line 14, leave out ““encouraging or”” The noble Lord said: Attempting to redefine incitement and encouragement is not at all an easy part of the law. It caused the Law Commission to change its view, and many of the problems that we are struggling with arise out of that change of view. We are concerned with defining the fault element in these new offences—or redefined offences—in Clauses 39, 40 and 41. I know that we have already dealt with Clause 39 but it is useful to start with that. The fault element in Clause 39 arises out of the word ““intentionally””. In Clause 39(1)(b), a person commits an offence if: "““he intends to encourage or assist its commission””." There is a distinction between intending to encourage the commission of an offence and encouraging an offence believing that it will be committed but without intending that it should be committed. When we get to the new offence set out in Clause 40, the issue to which the amendments we propose here give rise is whether the words ““encouraging or”” should be contained in offences which are not intended. Doing something intentionally is very different from doing something believing that certain consequences may follow. That was the position that the Law Commission discussed. Our amendments would remove the offences of encouraging an offence believing that it will be committed and, in Clause 41, encouraging offences believing that one or more will be committed. As a result, ““encouraging”” would constitute an offence only where the person intended that encouragement to encourage the commission of an offence under Clause 39. In other words, we are seeking to narrow the scope of the offence as it is currently expressed in Clauses 40 and 41. In 1993 the Law Commission published a consultation paper on assisting and encouraging crime. In that paper it suggested that there should be two separate offences—we have them set out here—one for encouraging crime and another for assisting crime. One of the major reasons for concluding that separate offences were necessary was the view that the fault element for encouraging crime should be narrower than for assisting crime. The commission said: "““If D’s conduct can truly be said to assist the commission of crime, and he is aware that that is so then there are strong arguments for imposing legal inhibition upon it, even though the giving of such assistance was not D’s purpose. Where, however, D’s conduct is not of assistance to P, but merely emboldens or fortifies P in committing a crime, it seems to extend the law too far to make D’s conduct itself criminal, unless D intended it to have that effect””." The commission expressed concern that, unless purpose or intention was required in relation to encouragement, D would incur liability for, "““the unlooked-for outcome of his comments on a matter of public interest””." That seems to follow the position under the common-law offence of incitement, which the encouragement offence is designed to replace. The dominant view would appear to be that the defendant must intend the person he is inciting to commit an offence. Smith and Hogan, in their work Criminal Law, comment: "““The mens rea of incitement is crucial to the offence … It comprises two elements. First, as with attempts, D must intend the consequences specified in the actus reus””." However, as I said, the Law Commission changed its view, despite its 2006 paper referring to the leading case of Marlow, and giving compelling examples of why it would not be appropriate to criminalise a person’s conduct unless he intended his conductto encourage another to commit a crime. The commission abandoned the view that intent should be required in relation to encouragement. It has now concluded that belief should suffice. That is the position that the Government have followed in the Bill. As I say, it is a highly complex concept and we are not convinced by the reasons advanced by the Law Commission for its change of mind. It seems to result primarily from a desire to merge the acts of encouragement and assistance into a single offence on the basis that it is not easy to separate them—that they seem to be sides of the same coin. Because the commission has taken the view that belief is an appropriate fault element in relation to assistance, it argues that belief must also be sufficient in relation to encouragement, and states at paragraph 5.79 of its 2006 report: "““If there were to be different fault elements, a troublesome and unnecessary distinction would arise, which would give rise to problems of charging and would be a recipe for legal arguments at trial””." We are not convinced that these practical arguments are sufficiently persuasive to outweigh the principled concerns about lowering the fault element for encouragement from intention to belief. Neither are we convinced by the argument that the principled concerns outlined above would be satisfactorily dealt with by the use of the defence of ““acting reasonably”” in Clause 46, or by the fact that the Human Rights Act would prohibit a prosecutor charging, or a court convicting, a defendant in a situation on the basis that it would breach his rights to freedom of expression or association. Consequently, we propose to narrow the offence in Clause 40 so that a person commits an offence only if he does an act that is capable of assisting the commission of an offence, in the belief that the offence will be committed and that his act will assist in its commission. The like principles apply to the offence in Clause 41. I beg to move.