Serious Crime Bill [HL]

moved Amendment No. 96H: 96H: Clause 42 , page 26, line 36, leave out subsection (6) The noble Baroness said: Clause 42 sets out what needs to be proved to establish the guilt of each of the offences that we have discussed in Clauses 39, 40 and 41. I add my thanks to the Minister for putting on the record the Government’s reasoning in those cases. In discussions with criminal practitioners before today, it was made clear to me that it was important to have the Government put the issues on record so thatthey could be taken into account when cases were subsequently brought. Obviously to those practitioners these matters will not be as confusing as they are to a mere layperson but it is important to see how it is intended these clauses shall be applied. We now turn to Clause 42 and matters of assumption. According to the Explanatory Notes, "““Subsection (6) makes it clear that where subsection (5)(a)(iii) is relied upon…a person cannot escape liability purely because it is impossible for him or her to commit the offence””." And subsection (5)(a)(iii) would be relied upon, "““where fault required for conviction for offences is established because the person who has done an act capable of providing encouragement or assistance has the necessary fault element for commission of the offence himself””." The Explanatory Notes go on to suggest atparagraph 130 the example of where a woman encourages rape. This amendment has been tabled to take forward matters of clarification. How can one assume that someone is able to do the act in question? Who is to have the power to make this assumption, and will it be open to challenge? How will the provision work in reality? We wonder whether the wording of the Law Commission’s draft Clause 15 might be clearer, while still covering the example of the woman and rape that is provided in the Explanatory Notes as a justification for the Government’s position. The wording in the draft clause would ensure that a person is capable of encouraging the doing of a criminal act, including a reference to his or her doing so by threatening another person or otherwise putting pressure on the other person to act. This would remove the need for assumption, so we would not have to consider that a woman is capable of the rape of another woman, should she have been a man—a rather tortuous position. This probing amendment asks the Minister to justify why the Government’s drafting is preferable to that of the Law Commission. I beg to move.