Serious Crime Bill [HL]

I bear in mind of course the internal tension between the two sets of amendments, but perhaps I can assist the Committee best by explaining why we think that the structure that we have in the Bill does what noble Lords want and why, although we have sympathy with some of the suggestions that have been made, we have chosen not to go along those lines. Amendments Nos. 95 and 96, in the names of the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, would replace the requirement that D himself believes that an offence will be committed and that his act will encourage or assist with a requirement that there are ““reasonable grounds to believe”” that an offence will be committed and that his act will encourage or assist its commission. That would incorporate an objective element into the offences, so that if a jury considered that any reasonable person in D’s position would have believed that an offence would be committed and that his act would encourage or assist it, D could be guilty of the offences in Clauses 40 and 41 even if he did not believe that himself. I am sympathetic to those amendments. Indeed, the level of fault required for the offences, and the use of the word ““believes”” in particular, was one of the issues on which we consulted in the Green Paper that preceded the Bill and which we have thought about very carefully. We considered whether to include those who had reasonable grounds to believe that an offence would be committed, and we also considered other variants, such as covering those who suspected that an offence would be committed or those who believed that an offence might be committed. Views were divided on the issue. We considered the issue in conjunction with prosecutors and discussed it with certain members of the judiciary and concluded that, as these are inchoate offences and therefore apply regardless of whether any harm has resulted, liability should be restricted to those who have a high degree of awareness that an offence will take place. In addition, we do not think that setting out that a person would be guilty where they had reasonable grounds to believe that an offence would take place would make the offence any easier to establish. So I understand why the noble Lord, Lord Thomas of Gresford, comes to the view that the amendments would not work. That wording would probably cover D who claims not to have believed that an offence would be committed and that his or her act would encourageor assist its commission, despite the fact that the evidence is strong enough to suggest that any reasonable person would have done so. If that is the case, we would expect the jury to conclude that D is in fact not telling the truth and did believe that an offence would be committed. I shall give the Committee an example that may assist. D lends P a knife. The prosecution alleges that D believed that P would use the knife to commit an act of grievous bodily harm on X. D denies this. In order to prove that there were reasonable grounds for belief that grievous bodily harm would be committed and that D’s act would encourage or assist grievous bodily harm, the prosecution would have to show some evidence. For example, D knew that P is a member of a gang that has used violence in the past, or that P has a history of convictions for violent offences, or that P has in some way indicated that he will commit grievous bodily harm. Our view is that, if the evidence is sufficient to show this, it would be sufficient for a jury to take the view that D is simply not telling the truth about his lack of belief in order to avoid conviction for the offence in Clause 40. I hope that I have been able to reassure the Committee that we have considered this issue very carefully. Although I sympathise with the sentiment behind the amendments, I must resist them and ask for them not to be pursued. Amendments Nos. 95B and 96B would, of course, add to Clauses 40 and 41 a new subsection that would exempt conduct by D that is considered reasonable. I agree entirely with the proposal that these offences should not cover conduct that is considered reasonable. This was recommended by the Law Commission, and we have taken forward that recommendation in the defence of acting reasonably in Clause 46. I know that we are going to discuss that defence shortly, but I reassure the noble Lord thatthe Bill provides that, if a jury considers that the defendant had been acting reasonably, he will have a defence to the offences in Clauses 40 and 41. Amendments Nos. 95B and 96B would require the prosecution in each case to prove beyond reasonable doubt that the defendant’s behaviour was unreasonable. The prosecution will already have proved that the defendant has done something to encourage and assist an offence, believing that it will be committed. In those circumstances, it is surely for the defendant to establish that his or her behaviour was none the less reasonable. Only the defendant will be in a position to explain why he or she acted as they did. The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities. We will be able to discuss that in a little more detail when we come to Clause 46. On this occasion, the disappointments will be equal, but the pleasure of greater understanding will also be shared.