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You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(1) (04 July 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/300(1).html Cite as: [2006] EWLC 300(1)

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PART 1

INTRODUCTION

1.1      The issue of criminal liability for encouraging or assisting another person to commit an offence is important, complex and difficult. It is important because it is very common for offences to involve two or more participants only some of whom are actual perpetrators of the offence as opposed to encouraging or assisting its commission.
1.2      The issue is also important because it is often the prime movers behind criminal ventures, for example drug or people traffickers, who take good care to distance themselves from the commission of the offences that they seek to encourage or assist. Recent advances in technology, together with the enhanced financial resources of career criminals, have facilitated this process.
1.3      This is the first of two reports in which we consider the circumstances in which a person ("D") ought to be criminally liable for encouraging or assisting another person ("P") to commit an offence. A substantial portion of this report focuses on what we consider to be a major defect of the common law. At common law if D encourages P to commit an offence that subsequently P does not commit or attempt to commit, D may nevertheless be criminally liable.^[1] By contrast, if D assists P to commit an offence, D incurs no criminal liability at common law if subsequently P, for whatever reason, does not commit or attempt to commit the offence:

Example 1A

D, in return for payment, lends a van to P believing that P will use the van in order to commit a robbery. The police arrest P in connection with another matter before P can even attempt to commit the robbery.

D is not criminally liable despite the fact that he or she intended to bring about harm and, by lending the van to P, has manifested that intention. If, however, in addition to giving P the van, D had uttered words encouraging P to rob V, D would be guilty of incitement to commit robbery. The common law appears to treat words more seriously than deeds.^[2] Yet, it might be thought that seeking to bring about harm by assisting a person to commit an offence is as culpable as seeking to do so by means of encouragement.^[3]

1.4      Increasingly, the police, through the gathering of intelligence, are able to identify preliminary acts of assistance by D before P commits or attempts to commit the principal offence. Yet, the common law only partially reflects this significant development. As a result, if D assists but does not encourage P to commit an offence, the police may have to forego at least some of the advantages of more sophisticated and effective methods of investigation by having to wait until P commits or attempts to commit the offence before they can proceed against D.^[4]
1.5      In contrast to acts of assistance, if D encourages P to commit an offence which P does not go on to commit, D will be guilty of incitement provided he or she satisfies the fault element of the offence. However, the offence of incitement has a number of unsatisfactory features:

(1) there is uncertainty as to whether it must be D's purpose that P should commit the offence that D is inciting;

(2) the fault element of the offence has been distorted by decisions of the Court of Appeal.^[5] These decisions have focused, wrongly, on the state of mind of P rather than on D's state of mind;

(3) there is uncertainty as to whether and, if so, to what extent it is a defence to act in order to prevent the commission of an offence or to prevent or limit the occurrence of harm;

(4) there is uncertainty as to the circumstances in which D is liable for inciting P to do an act which, if done by P, would not involve P committing an offence, for example because P is under the age of criminal responsibility or lacks a guilty mind;

(5) the rules governing D's liability in cases where D incites P to commit an inchoate offence have resulted in absurd distinctions;

(6) D may have a defence if the offence that he or she incites is impossible to commit whereas impossibility is not a defence to other inchoate offences, apart from common law conspiracies.

The offence of incitement is therefore in need of clarification and reform.

THE NATURE OF LIABILITY FOR ENCOURAGING OR ASSISTING THE COMMISSION OF OFFENCES

Principal offenders and accessories

1.6      When an offence is committed, the principal offender is a person who, with the requisite state of mind, perpetrates the conduct proscribed by the offence. An accessory is a person who, with the requisite state of mind, "aids, abets, counsels or procures"^[6] the principal offender to perpetrate that conduct. There can be more than one principal offender and more than one accessory:

Example 1B

D and P agree to rob V. D holds a knife to V's throat while P takes £100 from V's pocket. D and P spend the money.

Example 1C

D and P agree to rob V. P approaches V while D keeps watch. P threatens V with a knife and takes £100 from V's pocket. D and P spend the money.

The conduct that the offence of robbery proscribes is the appropriation of property by the use or threatened use of force. In example 1B, P and D between them have perpetrated the proscribed conduct. Therefore, they are co-principals.

1.7      By contrast, in example 1C, P appropriates the property and threatens V with force. The only principal offender is P. However, by keeping watch, D has intentionally assisted P to perpetrate the forbidden conduct. The common law acknowledges that D has acted reprehensibly and merits punishment. By virtue of the common law doctrine of secondary liability,^[7] D is an accessory to and guilty of robbery.

Secondary liability

1.8      The area of the criminal law that governs whether or not a person is guilty of an offence as an accessory is often described as the law of complicity and the liability of an accessory is often referred to as secondary liability. Secondary liability is a derivative form of liability in that D's liability derives from and is dependent on an offence committed by P. Although there are exceptions,^[8] the general principle is that if P does not commit (or attempt to commit) the offence, D is not secondarily liable.

Inchoate liability

1.9      If P does not commit or attempt to commit the offence that D has encouraged or assisted, D may still be liable but only if his or her conduct amounts to an "inchoate" offence.

Example 1D

D encourages P to murder V. The police arrest P in connection with another matter just as P is about to leave home to murder V.

D does not incur secondary liability because no offence has been committed or attempted. However, as will become apparent, D is guilty of the inchoate offence of incitement (to murder).

1.10      On one view, D ought not to incur any criminal liability in example 1D because D's conduct has not resulted in any actual harm. On the other view, the moral quality of D's conduct is unaffected by the fact that P has not murdered or attempted to murder V. It was D's intention that actual harm should occur. Should D be exonerated, it might be thought that the law was "speaking with a strange moral voice".^[9]
1.11      The common law developed three inchoate offences, that is offences that punish conduct not because it involves actual harm but because it enhances the prospect of actual harm occurring. The three offences were attempt,^[10] conspiracy^[11] and incitement.^[12] They are freestanding offences although they always relate to a principal offence. Accordingly, the offences are charged by reference to the principal offence, for example attempted rape, conspiracy to rob and incitement to murder.
1.12      Attempt is where P tries to commit an offence but fails to do so.^[13] If P commits the attempt with D's encouragement or assistance, D is an accessory to P's attempt.^[14] Therefore, if D urges P to murder V by discharging a firearm and P does so but misses the target, P and D are both guilty of attempted murder.
1.13      In contrast, the other two inchoate offences are offences that D commits:

(1) conspiracy consists of an agreement to commit an offence, for example D and P agree to assault V. The offence is committed by both D and P, as soon as the agreement is concluded, irrespective of whether any further steps are taken towards executing the agreement;^[15]

(2) incitement is where D encourages P to commit an offence.^[16] D is liable as soon as the encouragement comes to P's attention and thereafter it is irrelevant whether or not P acts on the encouragement. Accordingly, an act of encouragement, if accompanied by the requisite fault element, is an offence in its own right. This is why, in example 1D, D is guilty of incitement to murder.^[17]

However, as we have explained,^[18] there is no inchoate offence at common law for assisting a person to commit an offence if subsequently the offence is not committed or attempted.^[19]

1.14      The three inchoate offences of attempt, conspiracy and incitement share two common features. First, in each case D incurs liability even though the principal offence is not committed. Secondly, they punish conduct that is one at least step removed from the commission of the principal offence.
1.15      In the consultation paper that the Commission published in 1993,^[20] the Commission acknowledged that the current law of secondary and inchoate liability for encouraging or assisting others to commit crime was unsatisfactory.^[21] As a solution, the Commission proposed "a new structure of statutory offences".^[22] The proposals were based on the Commission's view that the nature of D's criminal liability for encouraging or assisting P to commit an offence is essentially inchoate in all cases.^[23] On this view, D incurs the same liability irrespective of whether P subsequently commits or attempts to commit the principal offence.
1.16      The Commission put forward three main proposals. First, the common law offence of incitement should be abolished and replaced by a statutory offence of encouraging crime. Secondly, there should be a separate statutory offence imposing a general inchoate liability for assisting crime. Thirdly, subject to the possible retention of the common law doctrine of joint venture,^[24] the doctrine of secondary liability should be abolished.
1.17      Thus, under the Commission's proposals, D's liability would always be inchoate irrespective of whether P went on to commit or attempt to commit the offence that D had encouraged or assisted:

Example 1E

D in return for payment lends P a jemmy that D believes P will use to burgle V's premises. P uses the jemmy to burgle V's premises.

Under the Commission's proposals, D would no longer be an accessory to and guilty of burglary. Instead, D would be guilty of assisting burglary.

1.18      The Commission's proposals were subjected to some searching criticism and no further work on the project was undertaken until 2002. The thrust of the criticism was that the Commission had been wrong to propose a scheme that involved the abolition of secondary liability.^[25] On returning to the project, we took into account the responses that we had received to the CP. We began by considering whether we could continue to support the new structure that the CP had advocated. We concluded that it was not right to do so. We now believe that there are compelling reasons for retaining secondary liability in many cases where P goes on to commit or attempt to commit an offence that D has encouraged or assisted.^[26]
1.19      Although we believe that the doctrine of secondary liability should be retained, it is unsatisfactory and in need of reform. In the second of the reports that we are publishing, we will set out our recommendations for a reformed doctrine of secondary liability. In this report we set out our recommendations for a scheme of inchoate liability for encouraging or assisting the commission of offences. We now explain why we are publishing two reports.

TWO REPORTS RATHER THAN ONE

1.20      Originally, we intended to publish a report and draft Bill setting out and explaining a statutory scheme to replace the common law of complicity (including the doctrine of joint venture), incitement and innocent agency.^[27] We now believe that it would be better to publish two reports.
1.21      In relation to secondary liability, there is a major issue on which we would like to have the benefit of informed views before we make a final decision. The issue is the correct approach to be adopted (as a matter of policy) to the drafting of new statutory offences to replace the existing common law on secondary liability, particularly against the background of our continuing commitment to codification of the criminal law. The choice for us is, in essence, between two competing approaches.
1.22      The first approach would be to cast the inculpatory provisions imposing secondary liability in quite detailed terms, catering for a variety of circumstances. Adopting this approach would require broad defences to ensure that the Bill did not impose secondary liability where it would be unreasonable to do so. The other approach would be a draft Bill that imposes secondary liability in a more open-textured form, leaving greater scope for judicial development of the principles of liability laid down in the Bill. The provisions imposing secondary liability would, on this approach, be supplemented by a limited number of specific defences and exemptions.
1.23      The issue of the correct approach to the drafting of the Bill as respects secondary liability has greatly exercised us and, indeed, continues to do so. The same issue does not, in our view, arise in relation to the specific new statutory inchoate offences to prohibit the encouragement or assistance of crime. It is for this reason that we feel able to proceed with this report and the draft Bill that accompanies it, before publishing our proposals for reforming the law of secondary liability. In addition, we believe that inchoate liability for encouraging or assisting crime is a matter that merits urgent attention.
1.24      So far as secondary liability is concerned, we have prepared alternative versions of a draft Bill which we have circulated amongst a group of judges, practitioners and academics. Following consideration of their comments and suggestions, we hope to publish a report on secondary liability for encouraging or assisting the commission of offences in the second half of 2006.

AN OUTLINE OF THE RECOMMENDATIONS CONTAINED IN THIS REPORT

The statutory offences that we are recommending^[28]

1.25      We are recommending that there should be two new inchoate offences:

(1) encouraging or assisting the commission of an offence ("the principal offence") intending to encourage or assist its commission ("the clause 1 offence");

(2) encouraging or assisting the commission of an offence ("the principal offence") believing that it will be committed ("the clause 2(1) offence").

Each offence targets very culpable conduct. In order to be convicted of the clause 1 offence, D must not only deliberately seek to encourage or assist P but also do so with the intention that P should commit the principal offence or be encouraged or assisted to commit it. In order to be convicted of the clause 2(1) offence, D must not only deliberately do something capable of encouraging or assisting P but also do so believing that it will encourage or assist P to commit the principal offence and that P will commit the principal offence:

Example 1F

D knows that P wishes to murder V. D, who hates V, provides P with information regarding the whereabouts of V. D's intention is that P should murder V. Meanwhile, Z alerts V to the fact that P intends to kill him. As a result, V goes abroad and P abandons the plan to murder V.

D has committed the clause 1 offence, namely encouraging or assisting murder intending to encourage or assist its commission.

Example 1G

D is a key holder at the office where he works. In return for payment, D makes a copy of the key and gives it to P believing that P will use the key to commit a burglary at the premises. However, D hopes that P will change his mind. P is arrested in connection with another matter before he can even attempt to commit the burglary. P informs the police of what D has done.

In this example, D has committed the clause 2(1) offence because, although not intending that P should commit burglary, D believed that P would commit the offence and that, by giving P a copy of the keys, he would help P to do so.

1.26      The two offences would replace the existing common law offence of incitement and fill the existing gap whereby at common law a person incurs no criminal liability for assisting the commission of an offence unless and until the offence is committed or attempted. Each offence may be committed whether or not the principal offence is committed.^[29]

Liability for encouraging or assisting more than one principal offence

1.27      Sometimes D may do an act that is capable of encouraging or assisting the commission of more than one principal offence:

Example 1H

In return for payment, D drives P to the house of V. D is not sure whether P will commit burglary, arson or murder. However, D believes that P will commit at least one of those three offences. D drops P near the premises and drives off. P's intention is to commit all three offences but, suspecting that he is being watched, P decides to abandon the project.

D's state of mind is such that, although he or she believes that at least one of three offences will be committed, in relation to each of the three offences the belief is no more than that the offence might be committed.

1.28      We are recommending that if D's act is capable of encouraging or assisting the commission of one or more of a number of different principal offences and:

(1) D believes that at least one of them will be committed;

(2) D has no belief as to which particular offence will be committed; and

(3) D believes that his or her act will encourage or assist the commission of at least one of those offences,

D may be prosecuted and convicted of encouraging or assisting the commission of any offence that he or she believed might be committed ("the clause 2(2) offence).^[30] However, the prosecution will only be able to prosecute D for one of the offences that he or she believed might be committed.^[31]

The penalty for each offence

1.29      Subject to one exception, we are recommending that the maximum penalty on conviction of either the clause 1 offence or a clause 2 offence should be the same as if D had been convicted of the principal offence.^[32] The exception is where the principal offence is murder. We are recommending that for encouraging or assisting murder, D should be liable to a maximum sentence of life imprisonment rather than the mandatory life sentence.^[33]

Defences and Exemptions^[34]

1.30      We are recommending that it should be a defence to both the clause 1 and a clause 2 offence if D proves on a balance of probabilities that he or she acted in order to prevent the commission of an offence or the occurrence of harm and that it was reasonable to act as D did:^[35]

Example 1J

D is the manager of a public house. P enters the premises with a view to carrying out an assault on a customer, V, because of an unpaid debt. D encourages P instead to take V's briefcase. Before P can take the case, another customer overpowers him.

D has encouraged P to commit theft. However, it might be thought that D ought to be able to say that he or she acted in order to prevent the commission of a more serious offence and that it was reasonable in all the circumstances to encourage P to commit theft. The harm that D was seeking to prevent was greater than any harm resulting from the theft.

1.31      We are also recommending that it should be a defence to a clause 2 offence, but not the clause 1 offence,^[36] if D proves on the balance of probabilities that he or she acted reasonably in all the circumstances:^[37]

Example 1K

D works as a typist for P. P tells D to type a statement addressed to the solicitors acting for P's wife. D knows that the statement is for the purpose of divorce and ancillary financial relief proceedings that are currently before the county court. In typing the statement, D realises that it contains deliberately misleading information about P's assets.

By typing the letter, D is assisting P to commit an offence. However, it ought to be possible for D to say that he or she acted reasonably because he or she was following her employer's instructions.

1.32      Acting reasonably in all the circumstances would not be a defence to the clause 1 offence. If D intends his or her encouragement or assistance to lead to the commission of an offence, it ought not to be possible for D to have a defence by claiming that what he or she did was within the bounds of reasonableness.
1.33      Our scheme also preserves and refines the common law Tyrrell^[38] exemption. In Tyrrell P, an adult, had unlawful sexual intercourse with D, a child aged between 13 and 16.^[39] It was alleged that D had encouraged P to commit the offence. It was held that D could not be convicted of committing the offence as an accessory or of inciting the offence because the offence has been enacted for the purpose of protecting a category of persons and D fell within the category.
1.34      We are recommending that it should be a defence to the clause 1 offence and a clause 2 offence if:

(1) the principal offence is one that exists for the protection of a particular category of person;

(2) D falls within that category; and

(3) D is the victim of the principal offence or would have been had the principal offence been committed.^[40]

THE STRUCTURE OF THIS REPORT

1.35      In Part 2 we explain why we are no longer following the proposal in the CP for abolishing the doctrine of secondary liability.
1.36      In Part 3 we provide an outline of the common law.
1.37      In Part 4 we examine the arguments for and against a general inchoate liability for assisting the commission of an offence.
1.38      In Part 5 we explain the new statutory offences that we are recommending.
1.39      In Part 6 we set out and explain the defences that we are recommending.
1.40      In Part 7 we consider the circumstances in which D ought to be inchoately liable for encouraging or assisting P to encourage or assist X to commit an offence.
1.41      In Part 8 we consider extra-territorial jurisdiction in relation to the new offences.
1.42      Part 9 contains a list of recommendations.
1.43      Appendix A explains the provisions of our draft Crime (Encouraging and Assisting) Bill.
1.44      Appendix B examines the liability of a person who assists a suicide that is not subsequently attempted.

Note 1    By virtue of having committed the common law offence of incitement.    [Back]

Note 2    However, it would be wrong to try to rationalise the current law simply in terms of a dichotomy between words and deeds. It is not difficult to visualise cases where the assistance consists only of words, for example D, knowing that P intends to murder V, informs P as to V’s current whereabouts.     [Back]

Note 3    If P does commit the offence, the issue of D’s liability is not dependent on whether he or she has encouraged P, on the one hand, or assisted P, on the other.     [Back]

Note 4    It is different if P and D agree to commit an offence. D and P are guilty of conspiracy and the offence is committed as soon as the agreement is concluded. Accordingly, the police can arrest and charge both P and D without having to wait for the offence to be committed or attempted.    [Back]

Note 5    Curr [1968] 2 QB 944; Shaw [1994] Criminal Law Review 365.    [Back]

Note 6    In relation to indictable offences, the language of the Accessories and Abettors Act 1861, s 8. Similar language is used in the Magistrates’ Courts Act 1980, s 44 in relation to summary offences.     [Back]

Note 7    See para 1.8 below.    [Back]

Note 8    See A J Ashworth, Principles of Criminal Law (4th ed 2003) pp 435 to 438.    [Back]

Note 9    R A Duff, Criminal Attempts (1996) p 134.    [Back]

Note 10    Attempt is now a statutory offence by virtue of the Criminal Attempts Act 1981, s 1(1).    [Back]

Note 11    Conspiracy is also now a statutory offence by virtue of the Criminal Law Act 1977, s 1. However conspiracy as a common law offence has not been completely abolished. Conspiracy to defraud, conspiracy to corrupt public morals and conspiracy to outrage public decency remain common law offences.     [Back]

Note 12    Although incitement remains a common law offence, Parliament has enacted many statutory offences of incitement. Examples include incitement to commit perjury contrary to the Perjury Act 1911, s 7(2); inciting acts of terrorism contrary to the Terrorism Act 2000, s 59; inciting offences relating to biological, chemical or nuclear weapons contrary to the Anti-Terrorism, Crime and Security Act 2001, s 50; inciting a child under 13 to engage in sexual activity contrary to the Sexual Offences Act 2003, s8.    [Back]

Note 13    At common law the courts experienced problems in determining when mere preparation to commit the offence ceased and attempt to commit the offence began. At the risk of over-simplification, the issue confronting the courts was how proximate to the complete offence did D’s actions have to be before they could constitute an attempt. The Criminal Attempts Act 1981, s 1(1) now provides that P must do an act that is “more than merely preparatory to the commission of the offence”.    [Back]

Note 14    Hapgood and Wyatt (1870) LR 1 CCR 221.    [Back]

Note 15    Arguably, the mere requirement that there should be an agreement to commit an offence is a low threshold because it might be thought that D and P agreeing to commit an offence is not very different from D declaring an intention to commit an offence. At common law, the latter is not sufficient to ground criminal liability. On the other hand, where D and P agree to commit an offence there is an additional element, namely that of mutual encouragement.     [Back]

Note 16    Incitement does not require mutual encouragement.     [Back]

Note 17    In example 1D, if D and P had agreed to murder V, they would have been guilty of conspiracy to murder.     [Back]

Note 18    Para 1.3 above.    [Back]

Note 19    This view is challenged by P R Glazebrook, “Structuring the Criminal Code: Functional Approaches to Complicity, Incomplete Offences, and General Defences” in A P Simester and A T H Smith (eds), Harm and Culpability (1996) 195, 202. However, we are not aware of other scholars who share Mr Glazebrook’s view.    [Back]

Note 20    Assisting and Encouraging Crime (1993) Law Commission Consultation Paper No 131 (“the CP”).    [Back]

Note 21    Para 1.1.    [Back]

Note 22    Para 1.4.    [Back]

Note 23    We set out the Commission’s reasons in Part 2 para 2.4 below.     [Back]

Note 24    On which see Part 2 paras 2.2 to 2.3 below.    [Back]

Note 25    We set out the criticism in Part 2 below.    [Back]

Note 26    We set out our reasons in Part 2 below.    [Back]

Note 27    Innocent agency is the common law doctrine whereby X is held to have committed an offence as a principal offender if he or she uses another person, who is unaware of the significance of his or her actions, to perpetrate the conduct proscribed by the offence. Thus, X gives a parcel containing a bomb to Y and tells Y to deliver it to V. X tells Y that it is a birthday present for V. As X hoped, the bomb explodes killing V. X is guilty of murder as a principal offender.    [Back]

Note 28    In Part 5 below, we set out and consider in detail the offences that we are recommending.    [Back]

Note 29    Clause 3(1) of the draft Bill appended to this report. We consider the implications of this in Part 5 paras 5.8 to 5.9 below.     [Back]

Note 30    Clause 2(2) of the draft Bill. In this report, we will use the expression “a clause 2 offence” when referring to both the cl 2(1) offence and the cl 2(2) offence.    [Back]

Note 31    Clause 3(4) of the draft Bill. By contrast, D can be prosecuted for and convicted of encouraging or assisting all the principal offences that he or she intended P should commit, even if he or she believed that P would only commit one of them.    [Back]

Note 32    Clause 12(1) and (3) of the draft Bill.    [Back]

Note 33    Clause 12(2) of the draft Bill.    [Back]

Note 34    See further Part 6 below.    [Back]

Note 35    Clause 4 of the draft Bill.    [Back]

Note 36    See para 1.32 below.    [Back]

Note 37    Clause 5 of the draft Bill.    [Back]

Note 38    [1894] 1 QB 710.    [Back]

Note 39    Contrary to the Criminal Law Amendment Act 1885, s 5.    [Back]

Note 40    Clause 6 of the draft Bill.    [Back]