Clause
42
Encouraging
or assisting an offence believing it will be
committed
Mr.
Hogg:
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’.
The
Chairman:
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’.
Mr.
Hogg:
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.
Mr.
Browne:
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?
Mr.
Browne:
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.
James
Brokenshire:
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.
Mr.
Cox:
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.
Maria
Eagle:
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.
Mr.
Hogg:
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?
Maria
Eagle:
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.
Mr.
Cox:
Whole cases have been won on
that.
Maria
Eagle:
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.
Mr.
Cox:
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?
Mr.
Cox:
Even though he does not take the baseball bat
back?
Maria
Eagle:
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.
6.30
pm
Mr.
Hogg:
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.
Mr.
Cox:
It is unlikely to be used in that
way.
Mr.
Hogg:
It is unlikely to be used in that way, but we are
here to guard against the unlikely as well as against the
probable.
Maria
Eagle:
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.
Mr.
Hogg:
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.
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