Serious Crime Bill [HL]

I am grateful to the noble Baroness for the amendment and hope that we can cover the points on which she has asked for further elucidation. Clause 42 sets out how the offences in this part of the Bill must be proved. Subsection (5) sets out that D can be convicted if he believed or was reckless as to whether P would operate with the required fault element for the anticipated principal offence or, if P does not have the fault necessary, but D does, that is sufficient. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent. Subsection (6) provides that where the prosecution seeks to prove a case on this basis, there will be an assumption that D is physically able to do P’s act. This will cover a scenario in which D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and tell him she does not want to but that it is all part of a game. P reasonably believes that V would consent to sexual intercourse with him so would not be guilty of rape. However, these provisions ensure that D could be found guilty of encouraging and assisting rape as she intends rape to happen, despite the fact that she would not be physically capable of raping V. The amendment seeks to remove subsection (6). We consider that undesirable and, for that reason, will continue to resist it.