Schedule 14

Part of Serious Crime Bill – in a Public Bill Committee at 11:15 am on 10 July 2007.

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Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice 11:15, 10 July 2007

I beg to move amendment No. 170, in schedule 14, page 121, line 41, at end insert—

‘ (1) This paragraph applies where, in any proceedings—

(a) a person (“D”) is charged in respect of the same act both with an offence under section 41 and with the common law offence of inciting the commission of another offence;

(b) the only thing preventing D from being found guilty of the offence under section 41 is the fact that it has not been proved beyond reasonable doubt that the time when the act took place was after the coming into force of that section; and

(c) the only thing preventing D from being found guilty of the common law offence is that it has not been proved beyond reasonable doubt that that time was before the coming into force of section 55.

(2) For the purpose of determining D’s guilt it shall be conclusively presumed that the time when the act took place was before the coming into force of section 41.’.

I hope to convince the Committee, in fairly short order, that the amendment will make sensible changes to the present transitional arrangements, as originally proposed by the Law Commission. The transition provisions should set out more clearly what is to happen if it cannot be determined when an act of intentional encouragement took place.

The Committee will remember from our debates on part 2 and clause 41 that the offence of intentional encouragement was covered by the common law offence of incitement, which criminalised it, but the clause now criminalises both intentional encouragement and assistance; in other words, the intentional encouragement bit of the offence, although new, is continuous. It was an offence under the common law and it remains an offence under the Bill. It should therefore be possible to prosecute an act of intentional encouragement whenever it took place—before or after the commencement of part 2.

The amendment provides that if a person is charged in respect of his conduct with the common law offence of incitement or of an offence under clause 41, and it is not possible to establish whether the conduct took place before or after the commencement of part 2—