Intentionally encouraging or assisting an offence

I beg to move Amendment No. 173, in Clause 41, page 25, line 26, leave out ‘foreseeable’ and insert ‘reasonable’.

We now move to part 2, which deals with inchoate offences. The amendment is probing in nature. I recognise that the language is not as effective as we would choose to make it. The amendment focuses on the use of the word “forseeability”. When we use that word, are we talking about a subjective or objective test? In other words, is it foreseeable by the individual that that was the consequence or was it something that should have been foreseen by them and that a reasonable person would have foreseen in the circumstances?

In moving the amendment, I stress that it is probing in nature and is designed to gain greater understanding of the context of this clause and, in particular, the use of the word foreseeable.

Although I have been on this Committee for only one day, I feel like I have been here for a very long time. [Interruption.] Hon. Members should not misunderstand me. It is simply that I have been waiting for so long to get to my feet, and not because of the content of our debate, which has been interesting, illuminating and lively. Committees are always good when they are those things.

May I also say what a pleasure it is, Mr. Benton, to be subject to your chairmanship? While it appears gentle at times, it is actually more effective than some may think. You have kept us well in order and we are very fortunate to have you.

May I begin by thanking the hon. Member for Hornchurch for making it clear that his Amendment is probing in nature? We do not then have to dance on the head of a pin over the difference between foreseeable and reasonable. I think that will do us all a favour at this time of the afternoon.

Briefly, I want to set out the offences that we are dealing with here. We will come back to them in Clause stand part as well. Clause 41, which is in part 2, creates an offence if a person, whom I shall refer to as D,

“does an act capable of encouraging or assisting” another person, to whom I shall refer as P, to commit an offence, and D

“intends to encourage or assist” that offence.

Clause 42 creates an offence that is committed when D

“does an act capable of encouraging or assisting”

P to commit an offence, and D “believes” that P will commit the offence and

“that his act will encourage or assist”

P to commit the offence.

Clause 43 creates an offence that is committed when D

“does an act capable of encouraging or assisting”

P to commit

“a number of offences; and...believes...that one or more of those offences will be committed...and...that his act will encourage or assist” one or more of P’s offences.

We will be discussing the nature of clauses 42 and 43 in more detail at the appropriate point if we have clause stand part debates.

The amendment relates to clause 41, but in order for liability to arise under the clause, it must be proved that D

“intends to encourage or assist” an offence. The notion of intention is given a particular meaning by subsection (2), which states that D

“is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.

I hope that it assists the hon. Member for Hornchurch if I say that what we are trying to get at is that intention should be interpreted in a narrow way, and should exclude the concept of virtual certainty. It is equivalent to meaning that D’s purpose must be to assist or encourage the offence.

The measure was a recommendation from the Law Commission following a lengthy debate and much concern. Following consultation, we have followed that recommendation. I hope that the fact that the measure has a long pedigree of consideration by erudite and learned people behind it will assist me in persuading the hon. Gentleman and his hon. and right hon. and learned Friends, and that he would be perfectly safe to withdraw the amendment. I assure him and reiterate that we have the same purpose in mind, which is to ensure that the notion of intention is interpreted narrowly. I hope that the hon. Gentleman feels able to withdraw the amendment.

I am grateful to the Under-Secretary for that statement of the intent behind the Clause. The measure will obviously sit within a range of case law. In the light of her explanation and confirmation, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.