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Serious Crime Bill [HL]


Serious Crime Bill [HL]
Part 2 — Encouraging or assisting crime

26

 

43      

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—

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(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

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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

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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).

44      

Proving an offence under this Part

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(1)   

Sections 41, 42 and 43 are to be read in accordance with this section.

(2)   

If it is alleged under section 41(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.

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(3)   

If it is alleged under section 42(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

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(b)   

that his act would encourage or assist the doing of that act.

(4)   

If it is alleged under section 43(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—

35

(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,

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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;

 
 

Serious Crime Bill [HL]
Part 2 — Encouraging or assisting crime

27

 

(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

5

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.

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(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 41

(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

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(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.

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(8)   

Reference in this section to the doing of an act includes reference to—

(a)   

a failure to act;

(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).

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(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 41, a reference to the offence

mentioned in subsection (2); and

(b)   

in relation to an offence under section 42, a reference to the offence

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mentioned in subsection (3).

45      

Proving an offence under section 43

(1)   

This section makes further provision about the application of section 44 to an

offence under section 43.

(2)   

It is sufficient to prove the matters mentioned in section 44(5) by reference to

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one offence only.

(3)   

The offence or offences by reference to which those matters are proved must be

one of the offences specified in the indictment.

(4)   

Subsection (3) does not affect any enactment or rule of law under which a

person charged with one offence may be convicted of another and is subject to

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section 53.

46      

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.

 
 

Serious Crime Bill [HL]
Part 2 — Encouraging or assisting crime

28

 

(2)   

If a person’s act is capable of encouraging or assisting the commission of a

number of offences—

(a)   

section 41 applies separately in relation to each offence that he intends

to encourage or assist to be committed; and

(b)   

section 42 applies separately in relation to each offence that he believes

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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 section 42, an act is capable of encouraging or

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assisting the commission of an offence, or

(b)   

for the purposes of section 43, 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—

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(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.

(6)   

The Secretary of State may by order amend Schedule 3.

(7)   

For the purposes of sections 42(b)(i) and 43(1)(b)(i) it is sufficient for the person

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concerned to believe that the offence (or one or more of the offences) will be

committed if certain conditions are met.

Reasonableness defence

47      

Defence of acting reasonably

(1)   

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

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(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

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(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

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under section 43, 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.

 
 

Serious Crime Bill [HL]
Part 2 — Encouraging or assisting crime

29

 

Limitation on liability

48      

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

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(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”).

Jurisdiction and procedure

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49      

Jurisdiction

(1)   

If a person (D) knows or believes that what he anticipates might take place

wholly or partly in England or Wales, he may be guilty of an offence under

section 41, 42 or 43 no matter where he was at any relevant time.

(2)   

If it is not proved that D knows or believes that what he anticipates might take

15

place wholly or partly in England or Wales, he is not guilty of an offence under

section 41, 42 or 43 unless paragraph 1, 2 or 3 of Schedule 4 applies.

(3)   

A reference in this section (and in any of those paragraphs) to what D

anticipates is to be read as follows—

(a)   

in relation to an offence under section 41 or 42, it refers to the act which

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would amount to the commission of the anticipated offence;

(b)   

in relation to an offence under section 43, it refers to an act which would

amount to the commission of any of the offences specified in the

indictment.

(4)   

In their application to Northern Ireland, this section and Schedule 4 have effect

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as if references to—

(a)   

England or Wales; and

(b)   

England and Wales;

   

were references to Northern Ireland.

50      

Prosecution of offences triable by reason of Schedule 4

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No proceedings for an offence triable by reason of any provision of Schedule 4

may be instituted—

(a)   

in England and Wales, except by, or with the consent of, the Attorney

General; or

(b)   

in Northern Ireland, except by, or with the consent of, the Advocate

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General for Northern Ireland.

51      

Mode of trial

(1)   

An offence under section 41 or 42 is triable in the same way as the anticipated

offence.

(2)   

An offence under section 43 is triable on indictment.

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