Clause 42

Serious Crime Bill [Lords] – in a Public Bill Committee at 6:00 pm on 3 July 2007.

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Encouraging or assisting an offence believing it will be committed

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 152, in clause 42, page 25, line 31, at beginning insert

‘at the time that he does the act’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 7, in clause 42, page 25, line 33, at end add ‘; and

(c) his act was unreasonable’.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I have not yet had the opportunity to welcome the Under-Secretary to the Committee, at least not formally. I recognise that we are now debating a part of the Bill for which she has responsibility. I am sorry that she feels that she has sat here for too long, but we understand that—it is the Opposition’s business to ensure that she sits here somewhat longer to answer our queries.

Part 2 originates from the Law Commission, and they are likely to have pored over in some detail the clauses that we are now debating. I shall therefore venture with more diffidence than usual. Although there is a risk that I am dancing on the head of a pin, as it were, I think that my anxiety is worth exploring.

Amendment No. 152 would change clause 42(b). The present drafting will enable a disjunction of time between the doing of an act and the belief that it will have criminal implications. It will not happen often, and it may not happen at all, but if one reads the Bill, one sees that an offence will be committed when a person

“does an act capable of encouraging or assisting the commission of an offence; and...he believes...that the offence will be committed”.

The clause does not provide that the belief must be associated in time with the act. I may be dancing on the head of a pin, but I could contemplate a situation in which someone has done something in their past that is

“capable of encouraging or assisting the commission of an offence”.

—they could, for example, make a loan. At that stage, the person acts innocently or not fully aware of the circumstances. Later on, he discovers that the person to whom he has made the loan intends to use the money in order to commit a criminal offence or to fund one. I agree that it is not terribly likely, but it seems to me that it could happen and that it would be better by far to make it plain that the belief must be associated with the act so that the offence is committed only when the person carries out the act and at the same time has the belief provided for in the clause. It is in that spirit that I move the amendment.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

Would it be in order for me to speak about amendment No. 42 and amendment No. 7, which stands in my name, at the same time?

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I, too, welcome the new Minister to her duties. I now realise why the hon. Member for Bradford, South (Mr. Sutcliffe) sat through all our previous sittings. I am only sad for him that he did not get to give us the benefit of his views before he was transferred. The glamorous world of sport awaits him, so maybe that is a consolation for not being able to speak on this issue.

Amendment No. 7 would add a further subsection, (c), which would require that

“his act was unreasonable”.

Let me make two brief points. First, there is a danger that the person could innocently come under the effect of the clause without realising that they were doing anything unreasonable. Secondly, the amendment  would shift the burden of proof as it would mean that the defendant no longer has to demonstrate that the reasonableness is something that he has been party to or that he has behaved in such a way. The onus is moved to the prosecution to show that the act was not reasonable. At the moment, the defendant must show that he has behaved reasonably. If the amendment is put in place, the burden will fall on those who wish to show that he has behaved unreasonably. That provides a greater safeguard, and that is why I have proposed the amendment.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I rise to support the amendment tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham. As always, if we can seek to provide some greater clarity in legislation that is always welcome. His point might be technical and narrow, but it is still worth exploring in terms of the timing of the belief that occurs.

I am not persuaded of the merits of the amendment tabled by the hon. Member for Taunton. We have an “act” in the first part of the clause and then some sort of intention—what “he believes”. Two elements are applied, and to add a third would confuse the situation when the tests are relatively clear. I shall certainly listen to what the Minister says.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

I rise with some diffidence, like my right hon. and learned Friend the Member for Sleaford and North Hykeham, because this is the work of the Law Commission. I am finding clause 42 slightly difficult to understand. I assume that it is intended to capture a form of recklessness, in that the defendant would have to have committed an act believing that it would help the commission of a crime and that the crime would be committed. If someone were in that state of mind, there is a narrow, slender difference between doing that and intending to help the commission of a crime, which is what clause 41 deals with. Clause 41 deals with a situation where there is actual intention to help the commission of a crime.

I assume that clause 42 must deal with people who, although they believe what they are doing is helping the commission of a crime and believe that it will be committed, do not intend to do it. I may be wrong. I should be grateful for clarification. If that is right, I would support the amendment moved by my right hon. and learned Friend, because it would bring some clarification. It might be thought unnecessary, in that a court would not interpret it any differently from the way that my right hon. and learned Friend has suggested it, but it would bring an element of additional clarification to the situation.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

Perhaps it will be easier to deal with the amendments and assist our discussion if I set out the Government’s understanding of what the clause does. Clause 42 creates a new offence of encouraging or assisting an offence, believing that it will be committed, as opposed to intending that it will be committed, which is what clause 41 deals with. As both the right hon. and learned Member for Sleaford and North Hykeham and the hon. and learned Member for Torridge and West Devon have said, the clause arises from the Law Commission report.

The clause imposes liability on a person who encourages or assists an offence where he does not intend an offence to occur, but believes that it will. It goes further than the current law of incitement, which is generally thought only to apply where it is a person’s purpose or intention to encourage an offence. In that sense, it advances the Law Society’s recommendation that the current law be extended to cover those who believe that an offence would be encouraged or assisted.

In order to be guilty of this offence a person must do an act that is capable of encouraging or assisting an offence by another person and must believe that the offence will be committed and that his act will encourage or assist its commission.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Minister address the point that I raised: namely, whether the belief has to be in existence at the time that the act is done, or whether the offence is committed if, subsequently, the defendant develops a belief?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I will deal with that immediately, because I am almost at the end of setting out my understanding of clause 42, which I first looked at yesterday.

Amendment No. 152 makes it clear that D would need to have the required belief at the time of doing his act. The question in deciding whether to support the right hon. and learned Gentleman’s amendment is whether the additional words add anything to what is already there.

The clause makes it clear that, in order to be guilty of the offence, D must do an act of encouragement or assistance, believing that his act will encourage or assist at the time. Although that is not included in the Bill—that is the whole point of the right hon. and learned Gentleman’s amendment—we do not believe that an order would be made out if, at the time of doing the act, D did not have any such belief. We are all crowding on to the head of a pin now. However, that is the advice that I have been given.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Whole cases have been won on that.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

Indeed. Where would lawyers be without the heads of pins?

Let me give an example to try to illustrate what I mean. Such concepts can be difficult to understand without examples. We can fuss about how good examples are, but they assist us. If D lends P a baseball bat, he will only be guilty of an offence if he believed that, at the time of lending the bat, P was about to bash somebody over the head with it. If he lent him the bat believing that he would play baseball, he would not be committing the offence. That is what we are intending to capture under the offence mentioned in clause 42.

We do not believe that the extra clarity that the right hon. and learned Gentleman’s amendment would include in the Bill is necessary. I will not say “otiose”, although I always try to get it in at some point. However, the amendment would not add anything to the current draft. Although I was not present at the time, I understand that the wording has been carefully discussed with counsel and is based on what the Law  Commission had to say. Although I am reluctant to disagree with the right hon. and learned Gentleman, whose erudition in these matters is well known across the House, I shall have to say that this particular amendment is not necessary. I hope that that satisfies him.

Amendment No. 7 would add a new subsection to the clause, requiring the prosecution in each case where it is alleged that D has, with belief, done an act capable of encouraging or assisting an offence to prove beyond reasonable doubt that the defendant’s behaviour was unreasonable. The amendment is neither desirable nor necessary. The scope of the offence in clause 42—an offence committed with belief—is wide and could cover many everyday activities, such as lending somebody a baseball bat.

Examples given during the debate on this issue in the other place, and indeed, in the Law Commission report, included that of a motorist who moves over to let a speeding driver pass—I expect that we have all done that—and that of a salesperson who sells spray paint believing that it will be used to commit criminal damage. It is not intended that these offences should criminalise conduct that is considered reasonable, but the Government agree with the Law Commission that it would be better to rely on a defence of acting reasonably in the circumstances, which is included in clause 47, rather than to try to attach the reasonableness condition that the amendment seeks.

In proving these offences, the prosecution must also show some awareness on D’s part, whether it be belief or recklessness, that the principal offender will operate with the necessary mens rea—or guilty mind, fault, or whichever words the Law Commission and others come up with to mean what lawyers think of as mens rea—for the principal offence or with any necessary circumstances or consequences.

If we accept that this element would be made out, the question is whether the prosecution should have to prove that D’s behaviour was unreasonable, as would be the case under the amendment, or whether D should have to prove that his behaviour was reasonable, as would be the case under the Bill. The Law Commission took the view that the burden should fall on D, arguing that only he will know why he considers his behaviour to have been reasonable in those circumstances. The man who lent the baseball bat to the villain who then thumped somebody over the head with it thought that he was lending it for him to play baseball with. He knows that, but it is not necessarily the case that the prosecution can prove any such thing.

We do not believe that there is any unfairness in having the burden this way round. The prosecution will have already proved that that defendant has done something to assist or encourage an offence, believing that it would be committed. It will have dealt with that burden. The burden would then be on the defendant to show that it was reasonable for him to act in the way that he did in the circumstances that he knew or believed to exist. Only the defendant would be in a position to explain why he acted as he did and why it was reasonable to have done so.

These particular circumstances and the facts of the particular case, which he could use to justify his  behaviour, would be peculiarly within his own knowledge and not within the knowledge of anybody else.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

I think I know why my right hon. and learned Friend the Member for Sleaford and North Hykeham has proposed an amendment. Let us suppose that D hands the baseball bat to E intending that he should use it simply to play baseball but becomes aware 20 minutes later, or even the following day, that E will use it to commit an affray. Would such a person be acquitted under this clause?

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Even though he does not take the baseball bat back?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I am not sure that I would be approaching someone who had a baseball bat when I knew that he was going to bash somebody over the head with it. My point is that if D did not have that belief at the time that he lent the baseball bat, the offence is not made out.

I hope that the Committee can see that that is a reasonably clear and sensible place to draw the line. I understand the right hon. and learned Member for Sleaford and North Hykeham wanting clarity, because in many ways these inchoate offences are inherently difficult to grasp—if hon. Members think that clause 42 is awkward, they should wait until we reach clause 44. Having said that, I hope that with the assistance and work that the Law Commission has provided we have got to a place that is as good as it can be. Given those explanations, I hope that the right hon. and learned Gentleman will be willing to withdraw the amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:30, 3 July 2007

I shall not press the amendment to a Division, because I am not actually sure about the correctness of the position that I have adopted. Further thought needs to be given to the issue by all sides. We should take the Minister’s example of the baseball bat, because she is quite right: it is sometimes helpful to consider examples. A chap lends to another a baseball bat, and at that moment, all parties are innocent. They walk to a pub together and they get drunk. The person who has the baseball bat falls into a row with a third party, and decides to whack the third party with the baseball bat. He says to the donor of the baseball bat, “Thank God you’ve given me the baseball bat. I can now go and do something to the third party.” One could construct an argument to the effect that, actually, unless the donor intervenes, the donor should be guilty of an offence in terms of public policy. The language of the statute is capable of supporting a prosecution.

The Minister says that we should look at the issue in broad terms, and that in matters of natural justice we should not create an offence unless at the moment that one handed over the baseball bat, one had the necessary belief. However, there is another public interest argument, which is that if one becomes aware of subsequent facts that show that the bat will be used  for an unlawful purpose, one should intervene. If the statute’s language is sufficiently wide as to capture that latter situation, we may have got ourselves an offence where we did not intend to create one. That is my anxiety.

Although I see the force in what the Minister said, because I accept that I am at risk of dancing on the head of a pin, I none the less draw some comfort from the remarks of my hon. and learned Friend the Member for Torridge and West Devon. The provision is capable of a different construction, which none of us really intends.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

It is unlikely to be used in that way.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

It is unlikely to be used in that way, but we are here to guard against the unlikely as well as against the probable.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

The right hon. and learned Gentleman is here to try to ensure that the legislation is as clear as it can be, and I have accepted that it is inherently difficult to be extremely precise with inchoate defences, hence the recent efforts of the Law Commission. We are confident that an offence would be made out for D only where he was aware at the time that he was undertaking the act of encouraging and assisting. At that time, he must have that belief. I hear what the right hon. and learned Gentleman says, and I am happy to think very hard about it, but I cannot think that he might be right.

We will return to the Bill on Report, and I think that we have covered all the angles, but between now and Report, I shall think about what the right hon. and learned Gentleman has said. If I, my officials or lawyers have, upon the basis of what he said, a revelation that we might be wrong, we will consider the matter further, but I cannot see the space in which we might be. With such difficult offences, I understand his concern to ensure that we are absolutely clear, but I hope that with that assurance, he may feel able to withdraw his amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

As you know, Mr. Benton, we live in an era of humility. The Prime Minister is humble. He is very humble, he is. The Minister is humble, too; she thinks that she might be wrong. I am humble as well; I might be wrong as well. So on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clauses 43 to 45 ordered to stand part of the Bill.