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Inchoate Offences & Complicity Notes

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This is an extract of our Inchoate Offences & Complicity document, which we sell as part of our Criminal Law Notes collection written by the top tier of Oxford students.

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INCHOATE

OFFENCES

[SCA 2007 - A SSISTING

AND

& COMPLICITY

ENCOURAGING CRIME]

The effect of this Act is to abolish the offence of incitement!!
L AW C OM 300

PARAS

1.9-1.19

**S ERIOUS C RIME A CT 2007 P ART 2 59, 64-66

SS

44-47, 49, 50, 51, 56,

[44] - Intentionally encouraging or assisting an offence

1. A person commits an offence if -
a. he does an act capable of encouraging or assisting the commission of an offence; and b. he intends to encourage or assist its commission

2. But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act
[45] - Encouraging or assisting an offence believing it will be committed

1. A person commits an offence if—
a. he does an act capable of encouraging or assisting the commission of an offence; and b. he believes —
i. that the offence will be committed; and ii. that his act will encourage or assist its commission
[46] - Encouraging or assisting offences believing one or more will be committed

1. A person commits an offence if —
a. he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and b. he believes —
i. that one or more of those offences will be committed (but has no belief as to which); and ii. that his act will encourage or assist the commission of one or more of them

2. It is immaterial for the purposes of subsection (1)(b)(ii)
whether the person has any belief as to which offence will be encouraged or assisted.

3. If a person is charged with an offence under subsection (1) —
a. the indictment must specify the offences alleged to be the
"number of offences" mentioned in paragraph (a) of that subsection; but b. nothing in paragraph (a) requires all the offences potentially comprised in that number to be specified

4. In relation to an offence under this section, reference in this Part to the offences specified in the indictment is to the offences specified by virtue of subsection (3)(a).

[47] - P ROVING

AN OFFENCE UNDER THIS

P ART

1. S.44/45/46 are to be read in accordance with this section.

2. If it is alleged under S.44(1)(b) that a person (D) intended to encourage or assist the commission of an offence, it is sufficient to prove that he intended to encourage or assist the doing of an act which would amount to the commission of that offence.

3. If it is alleged under section 45(b) that a person (D) believed that an offence would be committed and that his act would encourage or assist its commission, it is sufficient to prove that he believed

a. that an act would be done which would amount to the commission of that offence; and b. that his act would encourage or assist the doing of that act.

4. If it is alleged under section 46(1)(b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that he believed—
a. that one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and b. that his act would encourage or assist the doing of one or more of those acts.

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 (MR), 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; and 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.

6. For the purposes of subsection (5)(a)(iii), D is to be assumed to be able to do the act in question

7. In the case of an offence under section 44 —
a. subsection (5)(b)(i) is to be read as if the reference to "D
believed" were a reference to "D intended or believed";
but b. D is not to be taken to have intended that an act would be done in particular circumstances or with particular consequences merely because its being done in those circumstances or with those consequences was a foreseeable consequence of his act of encouragement or assistance.

8. Reference in this section to the doing of an act (by P, not D)
includes reference to —
a. a failure to act (omission);
b. the continuation of an act that has already begun; c. an attempt to do an act (except an act amounting to the commission of the offence of attempting to commit another offence).

9. In the remaining provisions of this Part (unless otherwise provided) a reference to the anticipated offence is—
a. in relation to an offence under section 44, a reference to the offence mentioned in subsection (2); and b. in relation to an offence under section 45, a reference to the offence mentioned in subsection (3)
[49] - Supplemental provisions

1. **A person may commit an offence under this Part whether or not any offence capable of being encouraged or assisted by his act is committed.

2. If a person's act is capable of encouraging or assisting the commission of a number of offences -
a. S.44 applies separately in relation to each offence that he intends to encourage or assist to be committed; and b. S.45 applies separately in relation to each offence that he believes will be encouraged or assisted to be committed.

3. A person may, in relation to the same act, commit an offence under more than one provision of this Part.

4. In reckoning whether —
a. for the purposes of S.45, an act is capable of encouraging or assisting the commission of an offence; or b. for the purposes of S.46, an act is capable of encouraging or assisting the commission of one or more of a number of offences;
offences under this Part and listed offences are to be disregarded.

5. "Listed offence" means —
a. in England and Wales, an offence listed in Part 1, 2 or 3 of
Schedule 3; and b. in Northern Ireland, an offence listed in Part 1, 4 or 5 of that Schedule. 7. For the purposes of sections 45(b)(i) and 46(1)(b)(i) it is sufficient for the person concerned to believe that the offence (or one or more of the offences) will be committed if certain conditions are met

[50] - Defence of acting reasonably

1. A person is not guilty of an offence under this Part if he proves

a. that he knew certain circumstances existed; and b. that it was reasonable for him to act as he did in those circumstances.

2. A person is not guilty of an offence under this Part if he proves

a. that he believed certain circumstances to exist;
b. that his belief was reasonable; and c. that it was reasonable for him to act as he did in the circumstances as he believed them to be.

3. Factors to be considered in determining whether it was reasonable for a person to act as he did include —
a. the seriousness of the anticipated offence (or, in the case of an offence under section 46, the offences specified in the indictment);
b. any purpose for which he claims to have been acting;
c. any authority by which he claims to have been acting.

[51] - Protective offences: victims not liable -

1. In the case of protective offences, a person does not commit an offence under this Part by reference to such an offence if —
a. he falls within the protected category; and b. he is the person in respect of whom the protective offence was committed or would have been if it had been committed.

2. "Protective offence" means an offence that exists (wholly or in part) for the protection of a particular category of persons ("the protected category").

[56] - P ERSONS
ETC .

WHO MAY BE PERPETRATORS OR ENCOURAGERS 1. In proceedings for an offence under this Part ("the inchoate offence") D may be convicted if —
a. it is proved that he must have committed either the inchoate offence or the anticipated offence; but b. it is not proved which of those offences he committed.

[59] - A BOLITION

OF COMMON LAW REPLACED BY THIS

P ART

The common law offence of inciting the commission of another offence is abolished.

[65] - B EING

CAPABLE OF ENCOURAGING OR ASSISTING

1. A reference in this Part to a person's doing an act that is capable of encouraging the commission of an offence includes a reference to his doing so by *threatening another person or otherwise putting pressure on another person to commit the offence.

2. A reference in this Part to a person's doing an act that is capable of encouraging or assisting the commission of an offence includes a reference to his doing so by—
a. taking steps to reduce the possibility of criminal proceedings being brought in respect of that offence;
b. failing to take reasonable steps to discharge a duty
[omission]

3. But a person is not to be regarded as doing an act that is capable of encouraging or assisting the commission of an offence merely because he fails to respond to a constable's request for assistance in preventing a breach of the peace.

[66] - I NDIRECTLY

ENCOURAGING OR ASSISTING

*If a person (D1) arranges for another (D2) to do an act that is capable of encouraging or assisting the commission of an offence,
and D2 does the act, D1 is also to be treated for the purposes of this
Part as having done it.

S EE ALSO THE EXPLANATORY NOTES FOR THE LEGISLATION :
http://www.opsi.gov.uk/acts/acts2007/en/ukpgaen_20070027_en.pdf Herring + S&S

1. Introduction a. Difference between these SCA offences and law on accomplices is that for the latter the person encouraged or assisted must go on to commit an offence; for SCA offences there is no need i. E.g. if A gives B a gun and asks him to kill C, A is liable even if B refuses to do what A asks. That said,
if B goes on to commit the crime, A will still be liable under SCA, it's just that there will be more serious charges available b. Three offences found in s.44, s.45 & s.46 i. They differ in MR requirements

2. AR requirements for all 3 offences a. Requirement -
i. "Doing an act which is capable of encouraging or assisting an offence"

1. The offence can be either an act, continuation of an act or an omission (s.47(8))
b. "Capable of…" -
i. If D wants to encourage or help another commit a crime, but his/her act is so inept that it could not help anyone commit a crime, no offence will be committed ii. However, this needs to be distinguished from a case where D gives an act of encouragement or assistance which in fact is not helpful or encouraging, but it was capable of being so (s.47(9))
iii. E.g. if A knows B is planning to commit a murder,
and posts her what she thinks is a bag of poison, but is in fact sugar, A cannot be liable. However, if A
sends B poison, but B does not use it, then A is liable

1. AR hurdle is set very low - only in rare occasion will an act not be capable of assisting an offence at all - statute does not provide assistance has to be substantial, so presumably assisting to a small extent will suffice a. Ormerod & Forston suggest that *'the most marginal of acts might suffice'

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