Serious Crime Bill [HL]

My Lords, I thank the noble Lord for indicating kindly that he broadly supports our position. I am also grateful for his references to the letter. I am conscious that its contents have not been read on to the record, so I shall outline it, with some of the examples given, to clarify why noble Lords opposite are persuaded that what we now have is satisfactory. As noble Lords know, 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, and that it is sufficient if P does not have the fault necessary but D does. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent. Subsection (6) of Clause 42, which Amendment No. 47 would remove, provides that where the prosecution seeks to prove a case on that basis, there will be an assumption that D is physically able to do P’s act. As we have discussed before,that would cover a scenario where D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and say to him that 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 he 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. In Committee, the noble Baroness, Lady Anelay, queried why this subsection is necessary and wondered whether it would be preferable to rely on Clause 58(1), which was Clause 15 of the Law Commission’s draft Bill, to which the noble Lord, Lord Henley, referred. It sets out that the term, "““being capable of encouraging or assisting””," can include references to doing so by threatening or putting pressure on another person to commit the offence. I am also grateful to the noble Lord, Lord Henley, for indicating that he agrees with us that relying on Clause 58(1) would not adequately cover this situation. The Law Commission also took that view. Its draft Bill included a version of Clause 58(1)—Clause 15 of the draft Bill to which the noble Baroness referred—and also Clause 42(6), which was Clause 11 of the draft Bill, because a person may not use threats or pressure in this situation. In the example I gave above, D has simply not told P the truth when she tells him that V enjoys pretending not to consent to sexual intercourse. D has not used threats or pressure. The Government therefore agree with the Law Commission that it is not sufficient to rely on Clause 58(1) to cover this scenario. It is for that reason that I must resist Amendment No. 47. I am grateful for the indication that noble Lords opposite respectfully agree. Amendment No. 48 also amends Clause 42 and raises another issue on which there was confusion in Committee. Amendment No. 48 removes Clause 42(8) which sets out what is meant by the phrase ““doing of an act”” and includes a failure to act. It caused some confusion in our debate. It refers to an act by P in which D could be guilty of encouraging and assisting P in a failure to act where that failure to act would constitute the conduct element of an offence. For example, it would cover D who encourages P, his wife, to starve their child to death. So it covers an act of omission. D could be found guilty of encouraging and assisting murder. It is therefore not correct to talk of P ““doing an act””. She has not done an act; rather she has failed to do an act. That failure constitutes the offence. This subsection does not impose liability for omissions. That is dealt with in Clause 58 and applies only where D has a duty to act but fails to take reasonable steps to perform that duty, intending or believing that he will assist an offence. The noble Lord, Lord Dholakia, asked in a previous discussion whether the provision would impose liability for failing to stop a crime in progress or failing to help someone who has been attacked. I can confirm that it would not. The noble Baroness, Lady Anelay, queried whether this subsection breaks the link between the ““prompt”” and the ““action””—the point on which the noble Lord, Lord Henley, wanted an answer. She gave the example of prosecuting a preacher who released a video inciting others to commit offences even where no such video was found in the possession of the bomber who was arrested. That is not the effect of this clause. In that case, the preacher would not be prosecuted for encouraging the attempted bombing. However, it is important to make clear that there does not need to be a link between an act of encouragement or assistance by D and any eventual offence for liability for any of these offences to arise. The reason is that these offences are inchoate and impose liability regardless of any offence or harm resulting from D’s act. So if a preacher intends to incite a specific offence by releasing a video, he could be prosecuted on the offence in Clause 39 regardless of whether anyone has actually been encouraged or assisted by it. If he is inciting offences in general, he could be prosecuted only on an offence under Clause 41 as he cannot be linked to a specific offence. Even then, a prosecution under Clause 41 would be possible only where the prosecution was able to identify a number of offences that he believed might have been committed as a result. With that rather long answer, I hope that I have satisfactorily clarified the purpose of these subsections and that noble Lords will agree that the provisions are necessary. I particularly wanted to accomplish that because we have discussed this matter in some detail and for some time. It is not an easy matter. I hope that this explanation will enable those who try to define why we have done this to understand better why we have done so. I hope that that answers all the questions that the noble Lord raised with me.