Notes Serious Crime Act 2007 Part 2 PDF

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These are good notes on the criminal law topic of the Serious Crime Act 2007. All case law relevant in the syllabus has been included as well as textbook summaries....

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Notes: Serious Crime Act 2007 S44: Intentionally encouraging or assisting an offence Actus reus AR: an act capable of encouraging or assisting the commission of an offence     

Conduct can include a course of conduct (s67) Encouragement or assistance can include steps taken to reduce the possibility of criminal proceedings being brought against P (s65) D liable if he fails to take reasonable steps to discharge a duty (s65 (2) b) D will have encouraged or assisted X if he arranges for P to do an act that capable of encourage or assist X (s66) No requirement that D actually encourage or assist anyone

Encouragement  Some communication or gesture on the part of D which might persuade, induce or influence P to commit a crime- need not actually influence P  D published details of how to grow cannabis which may encourage others to do likewise (Marlow [1979])  S65 (1) encouragement includes threats or putting pressure on another to commit a crime Assistance  Not defined by act. Conduct which can be considered to make it easier for the substantive offence to be committed Acts which can be encouraged/assisted  Offence under s44 cannot be committed with respect to suicide (s51A)  Possible to encourage or assist secondary liability  S44: can be committed in respect of another inchoate offence  SS45-46: cannot be committed in respect of inchoate offences (s49 (5))

Mens rea 1. 2. 3. 4. 5.

D intended to do the act which is capable of encouraging or assisting Intent to assist or encourage the conduct element of the offence (s47 (2)) Recklessness or belief as to circumstance elements (s47 (5)) Recklessness or belief as to consequence elements (s47 (5)) Recklessness or belief as to P’s mens rea; or that D would fulfil the mens rea himself (s47 (5))

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Question whether oblique intent is excluded from intent to assist or encourage the conduct element of the offences because of provisions of s44 (2)

S45: assisting or encouraging believing the offence will be committed Actus reus AR: an act capable of encouraging or assisting the commission of an offence  

S65-66 apply to s45 as to s44 D will have encouraged or assisted X if he arranges for P to do an act that capable of encourage or assist X (s66)

Mens rea 1. 2. 3. 4. 5. 6.

D intended to do the act which is capable of encouraging or assisting P Belief that the act will assist or encourage the conduct element of the offence (s47 (3)) Belief that the conduct element of the offence will be committed (s47 (3)) Recklessness or belief as to circumstance elements (s47 (5)) Recklessness or belief as to consequence elements (s47 (5)) Reckless or belief as to P’s mens rea or that D will fulfil the mens rea himself (s47 (5))

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Sufficient for ss45-46 that D believes the conduct element of the offence will be committed if certain conditions are met (s49 (7)) List of offences in schedule 3 to which s45 cannot apply Cannot have double inchoate liability under s45; cannot encourage/assist an attempt under s45

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S46: Assisting or encouraging one or more offences D believes will be committed 

S46 cannot be charged to same list of offences as s45

Actus reus AR: an act capable of encouraging or assisting the commission of an offence 

S65-66 apply to s46 as well as ss44-45

Mens rea 1. D intended to do the act which is capable of encouraging or assisting P 2. Belief that the act will assist or encourage the conduct element of one or more offences (s47 (4)) 3. Belief that the conduct element of one or more offences will be committed (s47 (4)) 4. Recklessness or belief as to circumstance elements (s47 (5)) 5. Recklessness or belief at to consequence elements (s47 (5)) 6. Recklessness or belief as to P’s mens rea or that D will fulfil the mens rea himself (s47 (5)) Sadique [2013]  D was accused of selling chemical agents to drug dealers which could be lawfully used to cut drugs

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Held: in context of s46 “not necessary for the Crown to prove that he had specific belief about the particular drug-related offence which those he was encouraging or assisting would or did commit” per Lord Judge CJ

Defences Withdrawal?  

No defence of withdrawal to ss44-46 Offence is complete at time D fulfils all AR and MR elements

Acting reasonably S50 Serious Crime Act 2007 Where D knew or reasonably believed certain circumstances existed; and that it was reasonable for him to act as he did in those circumstances as he believed them to be 

In determining reasonableness take account of: seriousness of anticipated offence, any purpose D claims to be acting for or, any authority by which D claims to be acting

Victims S51 Serious Crime Act 2007 Where D was the intended victim of the substantive offence and falls within a protected category (an offence created for the protection of a particular category of persons) 

Statutory version of Tyrell principle for secondary liability

Evaluating SCA 2007 Part 2 Advantages of law 

Common law incitement did not extend to conduct which purported to assist a crimeplugged gap in law

Disadvantages of law 

Complexity: “creates some of the most convoluted offences in decades” (Ormerod and Fortson 2009) o “Over-detailed, convoluted and unreadable” (Spencer and Virgo 2008), “the final result has a watered down mens rea and is significantly more complex… [and] significantly more oppressive” o “Some of the worst criminal provisions to fall from Parliament in recent years” (Ormerod and Fortson 2009); “tortuously difficult” o “They constitute both an interpretative nightmare and a prosecutor’s dream” (Blackstones Criminal Practice 2009) o Need for constant cross-referencing between sections o Why does s44 (2) replicate the Criminal Justice Act 1967

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Maximum penalties for inchoate offence the same as for substantive offence (s58)- is this fair in terms of culpability? Practical use of SCA 2007 Part 2? o Ormerod and Fortson: (1) used because of attractiveness to prosecutors, (2) not used due to complexity, (3) judges discourage it because of impenetrable language, (4) burden appeal process o Anecdotal evidence of use in 2011 riots Overlap in offences: “incoherence” for overlapping broad inchoate offences with existing derivative liability o D could be liable for assisting or encouraging an offence P never contemplated carrying out (Spencer and Virgo 2008) o “Far removed from what might typically be regarded as the offence ‘paradigm’ of blameworthy wrongdoing resulting in prescribed harm” (Ormerod and Fortson 2009) Was all-out reform in this manner necessary? Some reform needed and case for statutory footing for incitement but not for all-out abolition Difference form already complex Law Com Report No 300 o Wider inchoate liability should have been accompanied by narrower full complicity liability Width of liability of offences o Ability to ‘loop’ s44 multiple times- conduct can be twice (or even) more removed from potential harm o Impose liability for conduct far removed from the paradigm of blameworthy wrongdoing resulting in harm (Ormerod and Fortson 2009) o Proof of mens rea is far less than intention or purpose for ss45-6...