Encouraging/Assisting Crime

• What Act covers Encouraging/Assisting Crime?

  Serious Crime Act 2007
• What is stated in the Serious Crime Act about D committing a full offence?

  D liable for assisting or encouraging another to commit a full offence, regardless of whether the full offence is actually committed or not.
• What does s44 of the 2007 Act cover?

  s44: Intentionally encouraging or assisting an offence
• What does s45 of the 2007 Act cover?

  s45: Encouraging or assisting an offence believing it will be committed
• What does s46 of the 2007 Act cover?

  s46: Encouraging or assisting offences believing one or more will be committed.
• What is stated in s44 (1)?

  s44 (1): D does an act capable of encouraging/assisting the commission of an offence, and he intends to encourage/assist its commission.
• What is stated in s44 (2)?

  (2): No such intention exists if encouragement or assistance is merely a foreseeable consequence of his conduct.
• What is the AR for s44?

  1. D must be shown to have done an act/omission
  2. Capable of encouraging/assisting an offence
• What is the MR for s44?

  1. Intention to encourage/assist
  2. State of mind
• Will D still be guilty even if P did not use the items provided?

  YES
• What is irrelevant for the second AR element: Capable of encouraging or assisting another?

  • Irrelevant whether D’s conduct actually assisted/encouraged another.
  • Irrelevant whether P became aware of D’s assistance/encouragement.
• Does the assistance have to be substantial?

  NO:

  Does not have to be a substantial assistance as an act which is capable of assisting the commission of an offence to a small extent could be sufficient e.g providing guidance is sufficient (D placing a gun for P)
• What is stated in s65 (1):

  s65 (1): encouraging may be by persuasion or threats
• What is stated in s65 (2)?

  States that reducing the possibility of a criminal conviction can constitute assistance
• What is the main difference between s44 to s45 & s46 in terms of MR?

  D must intend for his conduct to encourage/assist the full offence (is the reason why s44 is the most serious of the offences)
• What is stated in s44 (2)?

  s44 (2): indirect intention or foresight is not sufficient.
• How is State of mind defined in s47 (5)?

  Where:

  • D foresaw or intended that P had the necessary MR for the offence, or D himself had the MR for the offence.
  • D foresaw or intended circumstances required for the AR of the offence
• What is stated in s47 (2) regarding D's state of mind?

  s47 (2): makes it clear that it is enough that D wanted the other person to do the acts which would amount to an offence; D does not have to know the conduct is a particular crime
• What does s47 (5) (b) cover?

  If the offence requires proof of particular circumstances or consequences, two factors must be proven
• What are the two factors that must be proven for s 47 (5) (b)?

  • (i): D intended [s44] or believed [s45 & s46] that, were the acts 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
• How does s45 define Encouraging/assisting an offence believing it will be committed?

  • (a): D does an act capable of encouraging or assisting the commission of an offence; and
  • (b): D believes [not intends] that the offence will be committed; and that his act will encourage or assist its commission
• What is the AR for s45?

  1. An act
  2. Capable of encouraging/assisting an offence
• What is the MR for s45?

  1. Belief the offence will be committed
  2. Belief that his conduct will encourage or assist the offence
  3. State of mind
• How is the MR different for s45 different for s44? (Belief that the offence will be committed)

  Unlike s44: there is no need to prove intention. Belief is sufficient.
• What is the L.P of Watling?

  L.P: D must believe the offence WILL be committed; a belief that it MIGHT be committed is not sufficient 
• What belief is also sufficient for s45?

  Conditional or mistaken belief may be sufficient.
• What is stated for the 2nd MR element for s45: Belief that his conduct will encourage/assist the offence?

  • Unlike s44, there is no need to prove the intention
  • Does not apply to conspiracies, attempts & some statutory incitement offences as offences require intention
• How does s46 define Encouraging/assisting offences believing one or more will be committed?

  • s46 (1): D does an act capable of encouraging or assisting the commission of one or more of a number of offences; and
  • D believes that one or more of those offences will be committed (but has no belief as to which); and
  • D believes that his act will encourage/assist one or more of them
• When can s46 apply?

  Applies when D is assisting & encouraging P but does not know what crime P might commit
• What is the AR for s46?

  1. An act
  2. Capable of encouraging/assisting an offence
• What is the MR for s46?

  1. Belief that one or more of the offences will be committed
  2. Belief that his conduct will encourage/assist one or more of them
  3. State of mind
• How is the MR for s46 different to s44 & s45? (Belief that one or more of the offences will be committed & Belief that his conduct will encourage/assist one or more of them)

  • Unlike s44, there is no need to prove intention. Belief is sufficient.
  • Unlike s45, D does not need to believe that a specific offence will be committed.
• What types of beliefs can be sufficient for s46?

  Conditional or mistaken belief may be sufficient.