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Child, J J (2012)
Publisher: Vathek Publishing
Languages: English
Types: Article
Subjects: KD0051
This article examines the mens rea requirements of the new assisting and encouraging offences set out in Part 2 of the Serious Crime Act 2007. Analysing the case of Rv.S&H [2011] EWCA Crim 2872, a case in which the Court of Appeal attempted to clarify this complex and troublesome area, it is demonstrated how and why the court (as well as other academic commentators) have erred in their interpretations of the statute. Moving to clarify these areas of uncertainty, the article then seeks to cast light on concerns about the future operation of these offences, concerns previously hidden by that uncertainty.
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    • 1 [2011] EWCA Crim 2872, [2012] 1 Cr App R 19.
    • 2 Introducing the inchoate offences of encouraging or assisting a criminal offence. Section 59 of the Serious Crime Act 2007 (hereafter 'SCA') abolishes the common law offence of incitement.
    • 3 See R v Sadique and Hussain [2011] EWCA Crim 2872, [2012] 1 Cr App R 19 at [33], Hooper LJ. For examples of academic comment, see J. Spencer and G. Virgo, 'Encouraging and Assisting Crime: Legislate in Haste, Repent at Leisure' [2008] Archbold News 7; D. Ormerod and R. Fortson, 'Serious Crime Act 2007: The Part 2 Offences' [2009] Crim LR 389; R. Fortson, Blackstone's Guide to the Serious Crime Act 2007 (Oxford University Press: Oxford, 2008).
    • 4 The principal ground of appeal contended that SCA, s. 46 was incompatible with Art. 7 of the European Convention on Human Rights.
    • 5 See, in particular, R v Sadique and Hussain [2011] EWCA Crim 2872, [2012] 1 Cr App R 19 at [81]-[90].
    • 6 Ormerod and Fortson, above n. 3 at 389.
    • 7 For example, unlike attempt and conspiracy, to be liable for assisting and encouraging under the SCA, D need only be reckless as to the circumstances, consequences (s. 47(5)(b)(ii)) and mens rea (s. 47(5)(a)(ii)) of the future principal offence.
    • 8 For work of this kind, see Ormerod and Fortson, above n. 3; Fortson, above n. 3.
    • 220 The Journal of Criminal Law (2012) 76 JCL 220-231
    • 15 This was first recognised in R v Khan [1990] 1 WLR 813.
    • 16 For discussion of this point in relation to criminal attempts see, R. Buxton, 'Circumstances, Consequences and Attempted Rape' [1984] Crim LR 25; cf. G. Williams, 'The Problem of Reckless Attempts' [1983] Crim LR 365. For a more recent discussion of this issue in relation to the range of general inchoate offences, see J. J. Child and A. Hunt, 'Mens Rea and the General Inchoate Offences: Another New Culpability Framework' Northern Ireland Legal Quarterly (2012) (forthcoming).
    • 17 Law Commission, above n. 9 (cl. 2 of the appended draft Bill).
    • 18 Ibid.
    • 28 For some more recent work in this area, see M. S. Moore, Act and Crime: The Philosophy of Action and its Implications for Criminal Law (Oxford University Press: Oxford, 1993); P. Robinson, Structure and Function in Criminal Law (Oxford University Press: Oxford, 1997).
    • 29 SCA, s. 44(1)(b).
    • 30 'Fault' is again subject to the special provision allowing liability where D is not reckless as to the fault of P, but does have the requisite mens rea for the principal offence himself (SCA, s. 47(5)(iii)).
    • 31 For the s. 45 and s. 46 offences, it will be remembered, D's required fault in relation to the act element of P's principal offence is gleaned from the terms of s. 45 and s. 46 themselves.
    • 32 See Law Commission, above n. 9 at paras 5.86-5.89 and cl. 1(3)(a). See also R. Sullivan, 'Inchoate Liability for Assisting and Encouraging Crime-the Law Commission Report' [2006] Crim LR 1047 at 1050.
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