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Reasonableness defence
Clause 47: Defence of acting reasonably
154. This clause sets out that it will be a defence to the offences in Part 2 if the person charged with those offences acted reasonably, that is that in the circumstances he was aware of, or in the circumstances he reasonably believed existed, it was reasonable for him to act as he did.
155. Subsection (3) sets out a number of factors that the court could consider when determining whether an act was reasonable in the circumstances. This list is not exhaustive.
Limitation on Liability
Clause 48: Protective offences: victims not liable
156. This clause sets out in statute the common law exemption from liability established in the case of Tyrell [1894].
157. A person cannot be guilty of the offences in clauses 41, 42 and 43 if, in relation to an offence that is a "protective" offence (defined in subsection (2)), the person who does the act capable of encouraging or assisting that offence falls within the category of persons that offence was designed to protect and would be considered as the victim.
158. For example, D is a 12 year old girl and encourages P, a 40 year old man to have sex with her. P does not attempt to have sex with D. D cannot be liable of encouraging or assisting child rape despite the fact it is her intent that P have sexual intercourse with a child under 13 (child rape) because she would be considered the "victim" of that offence had it taken place and the offence of child rape was enacted to protect children under the age of 13.
Jurisdiction and Procedure
Clause 49: Jurisdiction and Schedule 4
159. This clause and Schedule 4 set out the rules that will govern jurisdiction for the offences in Part 2.
160. Subsection (1), together with subsection (3), sets out that a person may be convicted of the offences in Part 2, regardless of his own location, if he knew or believed that the act which would amount to the commission of an offence would take place, at least in part, in England and Wales or Northern Ireland.
161. For example, D in Belgium sends a number of emails to P in London, encouraging him to plant a bomb on the tube. D can be prosecuted in England and Wales or Northern Ireland despite the fact he was outside the jurisdiction when he did his act.
162. Subsection (2) sets out that if it is not possible to establish the circumstances required for jurisdiction to arise under subsection (1), it may be possible to convict a person of an offence under Part 2 if the facts of the case fall within paragraph 1, 2 or 3 of Schedule 4.
163. Schedule 4, paragraph 1 provides jurisdiction where a person does an act in England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place outside England and Wales but the offence is one for which a perpetrator could be tried in England and Wales if the anticipated offence were committed outside England and Wales, or relevant conditions exist that would make it so triable.
164. For example, the offence of murder is triable within England, Wales or Northern Ireland regardless of where it is committed if the defendant is "a subject of Her Majesty" so jurisdiction could fall within paragraph 1 in the following situation (subject to the Attorney General's consent (clause 50)): D (a British citizen) in England sends a parcel of poison to P (a British citizen), in France encouraging him to use it to murder V (also in France). It would be possible to try D in England because, as P is a British citizen, the anticipated principal offence (murder) is one which could be tried in England, Wales or Northern Ireland.
165. Schedule 4, paragraph 2 provides jurisdiction where a person does an act in England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place in a country outside England and Wales but what he anticipates is also an offence under the law in force in that country.
166. For example, the offence of theft is an offence in England, Wales and Northern Ireland and also in Spain so jurisdiction could fall within paragraph 2 in the following situation (subject to the Attorney General's consent (clause 50)): D in England sends an email to P in Spain containing details of how to disarm an alarm system used by a bank in Madrid. D intends to assist P to rob the bank.
167. Sub-paragraph (2) provides a mechanism whereby the defence can challenge an assertion that what a person anticipates is an offence in the relevant country. Sub-paragraphs (3) to (5) provide further guidance on how that challenge should operate.
168. Schedule 4, paragraph 3 provides jurisdiction where a person does an act outside England and Wales, capable of encouraging or assisting an offence, and knows or believes that what he anticipates might take place outside England and Wales but the offence is one for which it would be possible to prosecute the person who provides encouragement or assistance in England and Wales if he were to commit the offence as a principal in that place.
169. For example, murder is an offence for which a perpetrator who is a British citizen could be tried in England and Wales or Northern Ireland regardless of where it is committed so jurisdiction could fall within paragraph 3 in the following situation (subject to the Attorney General's consent (clause 50)): D (a British citizen) in Canada sends a parcel of poison to P in France encouraging him to use it to murder V (also in France). It would be possible to try D in England because he is a British citizen and the anticipated principal offence (murder) is one which could be tried in England, Wales or Northern Ireland as it would be committed by a British citizen.
170. Subsection (4) sets out that references in this clause and in Schedule 4 to England and Wales should be read as if they were references to Northern Ireland in their application to Northern Ireland.
Clause 50: Prosecution of offences triable by reason of Schedule 4
171. This clause sets out that where jurisdiction does not fall within clause 49 (and therefore comes within the provisions set out in Schedule 4), the Attorney General must give his consent to a prosecution in England and Wales. In Northern Ireland, the Advocate General must give his consent before any prosecution falling under this Schedule.
Clause 51: Mode of trial
172. Subsection (1) sets out that the mode of trial for an offence under clauses 41 and 42 will be determined as if the person had been charged with committing the anticipated offence as a principal.
173. Subsection (2) sets out that an offence under clause 43 will be tried on indictment.
Clause 52: Persons who may be perpetrators or encouragers etc
174. This clause sets out that if an anticipated offence has been committed and it cannot be proved whether a person has either encouraged or assisted the offence on the one hand, or committed the offence as a principal on the other, he can be convicted of an offence in clause 41, 42 or 43.
Clause 53: Alternative verdicts and guilty pleas
175. Clause 53 sets out the offences in relation to which a person may be found guilty as an alternative where he has been prosecuted for an offence under clauses 41, 42 and 43. The effect is to parallel the rules in relation to alternative verdicts in relation to a trial on indictment for the offences encouraged or assisted.
176. Subsection (1) provides that a person may be found guilty of the offences of encouraging or assisting contained in clauses 41 and 42 in relation to an alternative offence.
177. Subsection (2) sets out a similar rule in relation to an offence under clause 43. Where a person is charged with that offence, and the jury find him not guilty in relation to one of the specified offences, he may nevertheless be found guilty of an alternative offence.
178. Subsection (3) makes it clear that if under clause 43 a person is found guilty in relation to one or more of the specified offences, it would also be possible to find him guilty in relation to an alternative offence. The penalty will depend on which of the offences is the more serious.
179. Subsection (4) sets out what is meant by the term 'alternative offence'. The general rule, which is set out in section 6(3) Criminal Law Act 1967, is that an alternative verdict can be returned for another offence if the offence charged amounts to or includes an allegation of the other offence. Similarly under subsection (4) an alternative verdict can be returned if: (a) it is an offence for which an accused could be found guilty on trial on indictment for the other offence (for example, on a trial for murder, a verdict can be returned of manslaughter, GBH with intent or infanticide) or (b) it is an indictable offence or one to which section 40 Criminal Justice Act 1988 applies (this allows the inclusion on an indictment of an offence of common assault) and the condition in subsection (5) is met.
180. The condition in subsection (5) is that the allegations in the indictment must amount to, or include, an allegation of the commission of the Part 2 offence by reference to the alternative offence. Subsection (7) sets out that in relation to an offence under clause 41, a reference to the allegations in the indictment includes a reference to an attempt to commit a specified offence.
181. For example, D gives P a baseball bat. The prosecution charge D with an offence under clause 42 alleging that D believed that P would use the bat to commit grievous bodily harm against V. The jury decide that they do not accept that D believed grievous bodily harm would be committed. However they are satisfied that D believed that actual bodily harm would be committed. Just as it would be possible, on a charge of GBH, to find an accused guilty of ABH instead, the jury could convict, as an alternative to the offence of encouraging or assisting GBH, of encouraging or assisting ABH.
182. Subsection (8) ensures that an offence which would be an alternative offence to one of the offences listed in Schedule 3 is to be disregarded in the same way as the substantive offences listed in Schedule 3 when prosecuting under clauses 42 or 43. This means that in the same way as the offences in Schedule 3 cannot be considered for a prosecution under clauses 42 or 43, neither can an offence which would be an alternative offence to one of these offences.
183. Subsection (10) sets out that person may plead guilty to an offence which would be encompassed by the offence with which he was charged.
184. For example, D is charged with encouraging or assisting P to rob X. D denies this but says he did realise that P was planning to steal something from X and therefore is prepared to plead guilty to assisting theft.
Clause 54: Penalties
185. This clause sets out the penalties that will apply to the offences created in Part 2.
186. Subsection (2) sets out that the maximum penalty for encouraging and assisting an offence of murder will be imprisonment for life.
187. Subsection (3) sets out the general rule that the maximum penalty available for an offence under clauses 41, 42 or 43 will be the same as the maximum available on conviction for the relevant anticipated or reference offence. In relation to clause 43
this applies where a person has been found guilty in relation to one offence only (subsection (1)(b)).
188. For example D lends P a van, false number plates and a gun. The prosecution argue that he believed that either burglary or murder would be committed. The jury find D guilty in relation to burglary but not guilty in relation to murder. The maximum sentence available for the conviction under clause 43 will be the maximum sentence available for the offence of burglary (14 years).
189. Subsections (5) to (7) set out the rules that apply to determining the penalty where a conviction under clause 43 is in relation to more than one offence.
190. Subsection (5) sets out that where one of the reference offences is murder, the maximum available penalty is imprisonment for life.
191. Subsection (6) sets out that where none of the reference offences is murder, but one or more of them is punishable by imprisonment, the maximum penalty available will be limited to that applicable to the offence that carries the highest penalty.
192. For example, D asks P to make him a van with a false panel at the back which would be capable of concealing 5 people. D makes the van and believes that it will be used for people smuggling but could also be used for theft. If D is found guilty of encouraging or assisting both of those offences, the maximum sentence available would be limited to the maximum sentence for people smuggling as it is the higher penalty of the offences D was prepared to assist.
193. Subsection (7) sets out that if none of the offences is punishable by imprisonment then the maximum sentence will be a fine.
Consequential alterations of the law
Clause 55: Abolition of common law replaced by this Part
194. This clause abolishes the common law offence of incitement.
Clause 56: Amendments relating to service law
195. This clause brings into effect the amendments to service law which are set out in Schedule 5. The amendments are necessary because of the abolition of the common law offence of inciting the commission of another offence (clause 55), and the replacement of that offence with the three new statutory offences provided for in clauses 41 - 43.
Clause 57: Repeal of offence of enabling unauthorised access to computer material
196. This clause amends the Police and Justice Act 2006 to allow for computer misuse enabling offences to be dealt with instead by the new offences included in Part 2 of the Bill.
Clause 58: Consequential amendments: Part 2
197. This clause is consequential and provides that references in existing legislation to the common law offence of incitement (this is set out in Part 1 of Schedule 6) are to be read as references to the offences in clauses 41, 42 and 43. Subsection (3) allows this list to be amended.
198. Part 2 of Schedule 6 contains other minor amendments to existing legislation.
Interpretation: Part 2
Clause 59: Encouraging or assisting the commission of an offence
199. This clause makes it clear that references to encouraging or assisting offences in this Part should be read in conjunction with clause 44.
Clause 60: Being capable of encouraging or assisting
200. While the Bill does not contain a definition of conduct which is capable of encouraging or assisting, clause 60 ensures that certain acts about which doubt may arise as to whether they fall within the ordinary meaning of that phrase are to be included. This includes omissions where the omission is a failure to take reasonable steps to discharge a duty.
Clause 61: Indirectly encouraging or assisting
201. This clause sets out that if a person (A) arranges for another (B) to do an act capable of encouraging or assisting another (C) to commit an offence, then A can be regarded as having done B's act.
202. This covers, for example, a gang leader (A) who instructs a member of his gang (B) to encourage another person (C) to kill X.
Clause 62: Course of conduct
203. This clause makes it clear that an "act" includes a course of conduct.
Part 3: Other Measures to Prevent or Disrupt Serious and Other Crime
Chapter 1: Prevention of Fraud
Sharing information with anti-fraud organisations
Clause 63: Disclosure of information to prevent fraud
204. Subsection (1) confers power on a public authority (defined in subsection (8)) to disclose information as a member of a specified anti-fraud organisation or otherwise in accordance with arrangements made by such an organisation (also defined in subsection (8)) for the purposes of preventing fraud. Subsection (2) provides that the information that may be so disclosed can be of any kind (subsection 2(a)) and identifies the persons to whom it can be disclosed (subsection (2)(b)). Subsection (3) provides that such disclosure does not breach any obligation of confidence owed by the public authority, or any other restrictions on the disclosure of the information. Subsection (4) provides that the clause does not authorise any disclosure in breach of the Data Protection Act 1998 or which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (which regulates the interception of communications). Subsection (5) provides that nothing in the section authorises disclosure by a relevant public authority of information which relates to matters devolved to Scotland. Subsection (6) defines 'relevant public authority' for this purpose by reference to the Scotland Act 1998. Subsection (7) provides that the clause does not limit the circumstances in which information may be disclosed apart from the power in the clause (for example, disclosure by virtue of the common law). Subsection (8) defines 'an anti-fraud organisation' (that is, one which enables or facilitates sharing of information to prevent fraud); 'information'; 'public authority' (which means any public authority under section 6 of the Human Rights Act 1998) and 'specified' (which means specified by an order by the Secretary of State: see clause 79 for further provision about such orders).
Clause 64: Offence for certain further disclosures of information
205. Subsection (1) makes it an offence to further disclose protected information in the circumstances set out in that subsection. Subsection (2) provides exemptions from the offence. Subsection (3) excludes from the offence cases where the information has been disclosed by a relevant public authority and the subject matter of it is within the legislative competence of the Scottish Parliament. Subsection (4) provides a defence to the offence if the person reasonably believed the disclosure was lawful or that the information had already and lawfully been made public. Subsection (5) defines 'protected information' as 'revenue and customs information' which reveals the identity of the person to whom it relates and any 'specified information' disclosed by a 'specified public authority' (these expressions are defined in subsection (7)). Subsection (6) defines revenue and customs information for the purpose of this clause. Subsection (7) defines 'Commissioners of Revenue and Customs'; 'enactment'; 'public authority' (by reference to the definition in clause 63); 'Revenue and Customs'; 'specified anti-fraud organisation' (by reference to the definition in clause 63); 'specified information' (that is, information specified or described in an order made by the Secretary of State) and 'specified public authority' (that is, a public authority specified in an order made by the Secretary of State). See clause 79 for further provisions about such orders.
Clause 65: Penalty and prosecution for offence under clause 64
206. Subsection (1) provides that the maximum penalty for a person found guilty of the offence under clause 64 is (a) on conviction on indictment, two years' imprisonment, a fine, or both; or (b) on summary conviction, 12 months, a fine not exceeding the statutory maximum, or both. Under the transitional provision in paragraph 7 of Schedule 14, the period of 12 months is reduced to 6 months pending commencement in England and Wales and Scotland of provisions referred to in that paragraph. Subsection (2) provides that in England and Wales prosecutions for such an offence may only be begun with the consent of the Director of Public Prosecutors or, in the case of revenue and customs information disclosed by Revenue and Customs, by the Director of Revenue and Customs Prosecutions (established by section 34 of the Commissioners for Revenue and Customs Act 2005). Subsection (3) makes provision for prosecutions in Northern Ireland which are similar to those in England and Wales. Subsection (4) extends liability to certain officers of a body corporate and partners and senior officers of a partnership where the offence in clause 64 is committed by a body corporate or a partnership (as the case may be). Subsection (5) reduces the maximum penalty for summary conviction of the offence in Northern Ireland from 12 months to 6 months. Subsection (6) defines terms used in the clause.
Clause 66: Data protection rules
207. This clause inserts a new paragraph in Schedule 3 to the Data Protection Act 1998 to allow processing of sensitive personal data through an anti-fraud organisation. The processing must be necessary for the purposes of preventing fraud. Schedule 3 to that Act sets out additional conditions, one of which must be satisfied where the personal data that is being processed is sensitive personal data (as defined by section 2 of that Act). That expression includes information as to the commission or alleged commission of an offence by the data subject. Sub-paragraph (2) defines "anti-fraud organisation" for the purposes of this paragraph. The new paragraph is not limited to sensitive personal data that is processed pursuant to clause 63 and includes disclosure of information under common law or other powers. The anti-fraud organisation does not need to be specified under that clause.
Clause 67: Data matching and Schedule 7: Data matching
208. This clause provides for Schedule 7. Schedule 7 is divided into three Parts dealing with England, Wales and Northern Ireland. Paragraph 1 of Part 1 inserts a new Part 2A into the Audit Commission Act 1998.
209. Subsection (1) of new section 32A (as so inserted) provides for the Audit Commission to carry out data matching exercises or to arrange for another organisation to do this on their behalf. Subsection (2) defines what a data matching exercise is. It involves the comparison of sets of data. For example, taking two local authority payroll databases and matching them. Matches should not occur but if they do, fraudulent activity may be highlighted. Subsection (3) defines the purposes for which the powers in subsection (1) can be exercised. These purposes are assisting in the prevention and detection of fraud. Subsection (4) provides that such assistance may, but need not, form part of an audit. Subsection (5) provides that data matching may not be used to identify patterns and trends in an individual's characteristics or behaviour which suggest nothing more than his potential to commit fraud in future. This is designed to prevent the Audit Commission from creating individual "profiles" of future fraudsters. Subsection (6) provides that in succeeding provisions of Part 2A, reference to a data matching exercise is to an exercise conducted or arranged to be conducted under section 32A.
210. Subsection (1) of new section 32B sets out the bodies who may be required to provide information to the Commission in order to conduct a data matching exercise. Paragraph (a) provides for any body as mentioned in subsection (2). Paragraph (b) provides for any officer or member of that body. Subsection (2) sets out which bodies may be required to provide data under subsection (1). They are (a) those bodies subject to audit, (b) English best value authorities (not subject to audit). Subsection (3) creates an offence and accompanying penalty for non-compliance with subsection (1)(b). Subsection (4) provides for the Audit Commission to recover any expenses they incur in connection with proceedings for an offence under subsection (3) from the body concerned. Subsection (5) explains which bodies are covered by the term 'English best value authority'.
211. Subsection (1) of new section 32C provides that where the Audit Commission think it appropriate, they may conduct a data matching exercise using data held by or on behalf of bodies not subject to new section 32B. It also provides that such a body may disclose data to the Commission for those purposes. This could include central government departments and some private sector bodies such as mortgage providers. There is no compulsion on any of these bodies to take part in a data matching exercise. Subsection (2) provides that the disclosure of information does not breach (a) any obligation of confidence owed by a person making the disclosure or (b) any other restriction on the disclosure of information however imposed. Subsection (3) provides that nothing relating to voluntary provision of data authorises any disclosure which (a) contravenes the Data Protection Act 1998 or (b) is prohibited by Part 1 of RIPA 2000. Subsection (4) restricts disclosure under subsection (1) if the data comprise or include patient data. Subsection (5) provides a definition of patient data. Subsection (6) provides that this section does not limit the circumstances in which data may be disclosed apart from this section. Subsection (7) provides that data matching exercises may include data provided by a body or person outside England and Wales.
212. Subsection (1) of new section 32D explains which information this section applies to. That is, information obtained for a data matching exercise and the result of any such exercise. Subsections (2)-(4) provide the circumstances in which information may be disclosed by or on behalf of the Commission. Subsection (5) imposes restrictions on the disclosure of information if it includes patient data (as defined in subsection (6)). Subsection (7) places restrictions on the further disclosure of information disclosed under subsection (2). Subsection (8) creates an offence of disclosing information to which this section applies except as authorised by subsections (2) and (7) and sets out the penalty. Subsection (9) disapplies section 49 from information to which this section applies. Subsection (10) makes it clear that "body" will include office-holders for the purposes of section 32D.
213. Subsection (1) of new section 32E makes clear that the Audit Commission will be able to publish a report on its data matching exercises, notwithstanding the limits on disclosure under section 32D. Subsection (2) provides that a report that is published under section 32E may not include information relating to a particular body or person if (a) the body or person is the subject of any data included in the data matching exercise; and (b) the body or person can be identified from the information; and (c) the information is not otherwise in the public domain. Subsection (3) provides that the Audit Commission may publish a report in such a manner as the Audit Commission considers appropriate for bringing it to the attention of those members of the public who may be interested. Subsection (4) disapplies section 51 of the Audit Commission Act 1998 (which contains general powers for the Audit Commission to publish information). Subsection (5) preserves the existing powers of the appointed auditor to publish information under Part 2.
214. Subsection (1) of new section 32F sets out the duty on the Commission to prescribe a scale (or scales) of fees in respect of the data matching exercises it conducts. Subsection (2) provides that bodies referred to in new section 32B(1) must pay the Commission according to the scales in subsection (1). Subsection (3) provides for circumstances where the work involved in a data matching exercise is substantially more or less than the Commission originally envisaged. The Commission can charge the body a fee which can be larger or smaller than that referred to in subsection (2). Subsection (4) sets out requirements on the Audit Commission before they prescribe a scale of fees. This includes the Commission consulting bodies mentioned in new section 32B(2). It also includes the Commission consulting other bodies or persons as they think appropriate. Subsections (5) and (6) set out powers of the Secretary of State in relation to fee scales. Subsection (7) provides that the Audit Commission may charge a fee to other bodies providing information or receiving results for data matching (in addition to the power under subsection (2)) and the terms under which such a fee are payable. The Audit Commission will collect these fees to recover the costs of carrying out data matching exercises.
215. Subsection (1) of new section 32G provides that the Commission must prepare and keep under review a code of data matching practice. Subsection (2) sets out that all those bodies and other persons involved in this process must have regard to the code of data matching practice. Subsection (3) requires the Commission to consult all bodies identified in new section 32B(2), the Information Commissioner, and such other bodies as the Audit Commission thinks appropriate before preparing or altering the code of data matching. Subsection (4) places a duty on the Audit Commission: (a) to send a copy of the code (and any alterations made to it) to the Secretary of State, who must lay it before Parliament; and (b) to publish the code from time to time.
216. Subsection (1) of new section 32H provides for the Secretary of State to extend by order the purposes of data matching exercises (as set out in new section 32A(3)) beyond fraud and to modify the application of this Part accordingly. Subsection (2) defines those purposes. Subsection (3) provides for the Secretary of State to add public bodies to those listed in new section 32B(2) by order. The Secretary of State may also modify the application of Part 2A to any body so added, and may remove bodies from section 32B(2). Subsection (4) provides that any order made under section 32H can include any incidental, consequential, supplemental or transitional provision the Secretary of State may see fit. Subsection (5) defines the meaning of public body.
217. Paragraph 3 of Schedule 7 inserts new subsection (1A) into section 52 of the Audit Commission Act 1998. This provides that any orders made under section 32H must be approved by affirmative resolution of both Houses of Parliament.
218. Paragraph 4 of Schedule 7 inserts a new Part 3A into the Public Audit (Wales) Act 2004. This gives the Auditor General for Wales data matching functions corresponding to the functions given to the Audit Commission under new Part 2A of the Audit Commission Act 1998. The data matching functions of the Auditor General for Wales will apply in or with respect to Wales. The Secretary of State will have similar order-making powers to extend the purposes for which data matching may be carried out in Wales, and to add to the list of bodies which may be required to participate in data matching in Wales, subject to prior consultation with the Auditor General for Wales.
219. Paragraph 5 of Schedule 7 amends paragraph 9 of Schedule 8 to the Government of Wales Act 2006 to allow the Auditor General for Wales to retain income from data matching fees, rather than paying it into the Welsh Consolidated Fund. The income covered by the amendment is confined to fees charged to local government bodies in Wales.
220. Paragraph 6 of Schedule 7 inserts new articles into the Audit and Accountability (Northern Ireland) Order 2003. The new articles give the Comptroller and Auditor General for Northern Ireland data matching functions corresponding to the data matching functions of the Audit Commission and the Auditor General for Wales. The functions may be used, among other things, to assist the Comptroller and Auditor General for Northern Ireland and local government auditors in the exercise of their respective audit functions. The power to extend the purposes for which data matching may be carried out in Northern Ireland, and to add to the list of bodies which may be required to participate, will rest with the Department of Finance and Personnel in Northern Ireland.
221. Paragraph 7 of Schedule 7 inserts a reference to data matching in Article 6(5) of the Audit (Northern Ireland) Order 1987. This will ensure that any liability incurred by the Comptroller and Auditor General for Northern Ireland in relation to his data matching functions is charged on the Consolidated Fund of Northern Ireland.
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