This is an extract of our Inchoate Offences document, which we sell as part of our Criminal Law Notes collection written by the top tier of Oxford students.
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D's actions become a crime when he acts: (i) With intent to encourage or assist the commission of that offence - s.44 Serious Crime Act 2007 (ii) believing that that offence will be committed and that the act will encourage or assist its commission. - s.45 (iii) where the act is capable of encouraging or assisting the commission of one or more of a number of offences, believing that one or more of those offences will be committed and that his act will encourage or assist one or more of them - s.46 The substantive offence does not have to be committed, and even if there is no effective encouragement or assistance for P. The penalty for statutory inchoates is the same as the substantive offence - except for murder where the mandatory life sentence is not imposed.
Some communication or gesture on the part of D which might persuade, influence or induce P to commit a crime. It is irrelevant whether or not it actually does persuade him e.g. DPP v Armstrong  P was an undercover police officer not affected by D's encouragement. D doesn't have to address an individual, can be a meeting/website/
Facebook e.g. Jones  where D wrote messages on the walls of trains to encourage young girls into sex. Blackshaw  D wrote message on Facebook encouraging people to riot - nothing happened, no evidence that anyone saw it; guilty. Capable of encouraging? Invicta Plastics v Clare  where D, a company, made an ad for a piece of equipment capable of detecting police radar devices monitoring traffic; the use of these by private people was found to be illegal therefore D had encouraged this offence by selling them. Contra to James  where it was found that an intention to manufacture 'black boxes' to extract electricity was not an offence. Also Marlow  where D was guilty after writing an article on the growing of cannabis.
6 Goldman - dubious decision where D was convicted of 'incitement' of distribution of child porn by offering to buy it from E - odd because offering to buy a sweater wouldn't be encouragement; probably decided for policy reasons to discourage distribution. Also in O'Shea v Coventry Magistrates Court D had downloaded child porn and was charged with inciting P, who ran the site, to distribute the material - P had no knowledge of D visiting the website, this stretched the limits extraordinarily. Today, an alternative way of dealing with them would be assistance suggested by Simester and Sullivan. Race Relations Board v Applin  considered threats as part of encouragement - mirrored in the Serious Crimes Act 2007 where threats/
promises of rewards/coercion are all considered forms of influence. Encouragement can be indirect e.g. D gives X a letter to give to P which contains encouragement of the death of V. An act capable of encouraging or assisting - it is unnecessary to prove any communication or interaction directly with P e.g. Banks where D's letter to P advising P to kill V was intercepted but D was still charged since the act was capable of of encouraging P; not necessary to show it had been received.
(3) You can assist or encourage by (per Serious Crime Act 2007, s. 65(2)): a. taking steps to reduce the possibility of criminal proceedings being brought; or b. failing to take reasonable steps to discharge a duty. You can encourage an intentional inchoate offence (s.44) but not s.45/6 because where the mens rea is belief rather than intention, the remoteness from the commission of the substantive offence is too remote. D can still be guilty even if P is not convicted for the substantive offence confirmed in DPP v Shannon Sadique  construed that s.46 was not incompatible with the Art 7. s. 46 should only be used if it might be that it was the belief of D at the time of doing the act that one or more offences would be committed but he had no belief as to which. The prosecution had to identify which offences D's act was capable of encouraging and assisting and on which it wished to rely. This effectively abolished s.46 and replaced it with multiple counts of s.45.
Necessary to establish that D intended to do the act capable of encouraging or assisting, then consider his mens rea with regards to the substantive offence.
6 e.g. D encourages murder if he 1. encourages P to do an act which he believed might (reckless) cause V's death (a consequence) and; 2. if one of the three additional mens rea elements is used. Examples:
Intention: s.44 committed if D intends to encourage or assist the commission of an offence: oblique intent is not sufficient. Belief: s.45/6 are committed where D believes the offence will be committed and believes his act is capable of encouraging or assisting it. A belief based upon certain conditions is sufficient. Alternatively, s.47(5)(a) provides another form of mens rea if intention or belief are not satisfied e.g. where S encouraged P to commit the actus reus of an offence not knowing whether P had the sufficient mens rea to make it an offence.
(5) In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence---
(a) if the offence is one requiring proof of fault, it must be proved that---
(i) D believed that, were the act to be done, it would be done with that fault;
(ii) D was reckless as to whether or not it would be done with that fault; or
(iii) D's state of mind was such that, were he to do it, it would be done with that fault;
(b) if the offence is one requiring proof of particular circumstances or consequences (or both), it must be proved that---
(i) D believed that, were the act to be done, it would be done in those circumstances or with those consequences; or
(ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences.
D offers P a necklace which D has stolen. D believes that P knows it is stolen, but in fact P believes it has been acquired honestly = D guilty of encouraging the handling of stolen goods because he believed P would commit the offence and because he knows it is stolen - s.45
D offers P a necklace which he has stolen, believing that P thinks he acquired it honestly, presumably D cannot be guilty of assisting or encouraging because he doesn't intend to, nor does he believe she will commit the offence. But, D does intend P to commit the actus reus, the handling and therefore we turn to s.47(5) - D must believe the relevant circumstance will be fulfilled, D does not believe or suspect that P will have the mens rea but if D had committed the actus reus of the substantive offence, he would have the mens rea - consequently, he is guilty of assisting or encouraging.
The offence is committed as soon as D does the act capable of assisting or encouraging; withdrawal might mitigate the offence but could not undo it. However, if D counsels P and then prior to commission, revokes her counselling and contacts the authorities, she is no longer a party to the offence. No such defence is available for encouraging/assisting. Acting Reasonably s.50 Serious Cimes Act - acting reasonably is a defence whereby D knew of the circumstance that would make it reasonable for him to act as he did or D reasonably believed circumstances existed that would make it reasonable to act as he did. However in Yip Chiu-Cheung D intended to commit a serious drugs offence as part of a conspiracy, with his motivation being to expose drug trafficking - the approach of the law however was that mens rea is present even whilst lacking moral culpability and D was liable. A victim of a crime can't encourage it against themselves e.g. child sex offences.
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