Serious Crime Bill [HL]

We sympathise with what the noble Lord, Lord Henley, has said on these clauses. Wehave added our names to the Questions of whether Clauses 40 and 41 should stand part of the Bill. I know that the clauses are not grouped together, but I shall set out my arguments relating to them both in order not to repeat myself. My noble friends Lord Thomas of Gresfordand Lord Burnett have spoken at length on the amendments tabled to Clause 40, so I shall explain what we hope to achieve by opposing the Question of whether Clauses 40 and 41 should be part of the Bill. As the noble Lord, Lord Henley, has just pointed out, the amendments to these clauses would remove the offences of: "““Encouraging or assisting an offence believing it will be committed””," and: "““Encouraging or assisting offences believing one or more offences will be committed””." Therefore the only new offence created in Part 2 would be that of: "““Intentionally encouraging or assisting an offence””," set out in Clause 39. We agree that when a person acts with the intention of encouraging or assisting the commission of an offence, his state of mind is sufficiently fault-worthy to justify a criminal conviction. But in this context we would expect ““intention”” to mean, in effect, that the purpose of the person’s action is to make the commission of an offence more likely by encouraging or assisting it. It is understandable that society would wish to prohibit and punish such behaviour in the hope of deterring actions which, while otherwise lawful, are designed to increase the likelihood of criminal behaviour by others. However, we are not convinced that the belief that one’s action will encourage or assist the commission of an offence by someone else is sufficiently fault-worthy to justify criminalisation. The effect of the belief offence inthe Bill would be to criminalise behaviour that is otherwise lawful and is neither designed nor intended to encourage criminal behaviour by other persons. The argument in relation to both these clauses is that while we do not dispute the fact that the Human Rights Act 1998 should apply to prevent an unjustified charge or prosecution in some cases, we consider that a better safeguard against inappropriate prosecution would be a more appropriately drafted offence. We are also concerned that the Human Rights Act 1998 would not apply where the otherwise lawful action of the defendant does not engage any human right. I do not intend to speak again on Clause 41, and it would be very helpful if the Minister could give us an explanation for both these clauses.