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Serious Crime Bill [HL]


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

26

 

42      

Proving an offence under this Part

(1)   

Sections 39, 40 and 41 are to be read in accordance with this section.

(2)   

If it is alleged under section 39(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

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of that offence.

(3)   

If it is alleged under section 40(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

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that offence; and

(b)   

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

(4)   

If it is alleged under section 41(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

15

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.

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(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, it must be proved that—

(i)   

D believed that, were the act to be done, it would be done with

that fault;

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(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

30

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 39

(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.

45

(8)   

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

(a)   

a failure to act;

 
 

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

27

 

(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—

5

(a)   

in relation to an offence under section 39, a reference to the offence

mentioned in subsection (2); and

(b)   

in relation to an offence under section 40, a reference to the offence

mentioned in subsection (3).

43      

Proving an offence under section 41

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(1)   

This section makes further provision about the application of section 42 to an

offence under section 41.

(2)   

It is sufficient to prove the matters mentioned in section 42(5) by reference to

one offence only.

(3)   

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

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one of the offences specified in the charge or 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

section 52.

(5)   

In this Part “charge” means a written charge under section 29 of the Criminal

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Justice Act 2003 (c. 44) and, accordingly, in the application of this Part to

Northern Ireland, references to a charge or indictment have effect as references

to an indictment.

44      

Supplemental provisions

(1)   

A person may commit an offence under this Part whether or not any offence

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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)   

section 39 applies separately in relation to each offence that he intends

to encourage or assist to be committed; and

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(b)   

section 40 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—

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(a)   

for the purposes of section 40, an act is capable of encouraging or

assisting the commission of an offence, or

(b)   

for the purposes of section 41, 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.

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(5)   

“Listed offence” means—

(a)   

in England and Wales, an offence listed in Part 1, 2 or 3 of Schedule 3;

and

 
 

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

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(b)   

in Northern Ireland, an offence listed in Part 1, 4 or 5 of that Schedule.

(6)   

For the purposes of sections 40(b)(i) and 41(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.

Defences

5

45      

Defence of acting to prevent commission of offence etc.

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

(a)   

he acted for the purpose of—

(i)   

preventing the commission of that offence or another offence; or

(ii)   

preventing, or limiting, the occurrence of harm; and

10

(b)   

it was reasonable for him to act as he did.

46      

Defence of acting reasonably

(1)   

A person is not guilty of an offence under section 40 or 41 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.

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(2)   

A person is not guilty of an offence under section 40 or 41 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.

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Limitation on liability

47      

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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48      

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 39, 40 or 41 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

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

section 39, 40 or 41 unless paragraph 1, 2 or 3 of Schedule 4 applies.

 
 

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

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(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 39 or 40, it refers to the act which

would amount to the commission of the anticipated offence;

(b)   

in relation to an offence under section 41, it refers to an act which would

5

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

or indictment.

(4)   

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

as if references to—

(a)   

England or Wales; and

10

(b)   

England and Wales;

   

were references to Northern Ireland.

49      

Prosecution of offences triable by reason of Schedule 4

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

may be instituted—

15

(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

General for Northern Ireland.

50      

Mode of trial

20

(1)   

An offence under section 39 or 40 is triable in the same way as the anticipated

offence.

(2)   

An offence under section 41 is triable on indictment.

51      

Persons who may be perpetrators or encouragers etc.

(1)   

In proceedings for an offence under this Part (“the inchoate offence”) the

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defendant may be convicted if—

(a)   

it is proved that he must have committed the inchoate offence or the

anticipated offence; but

(b)   

it is not proved which of those offences he committed.

(2)   

For the purposes of this section, a person is not to be treated as having

30

committed the anticipated offence merely because he aided, abetted,

counselled or procured its commission.

(3)   

In relation to an offence under section 41, a reference in this section to the

anticipated offence is to be read as a reference to an offence specified in the

charge or indictment.

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52      

Alternative verdicts

(1)   

In proceedings on indictment for an offence under section 39 or 40, a person

may be found guilty of the offence by reference to an alternative offence in

relation to that which it is alleged he intended or believed would be committed.

(2)   

If in proceedings for an offence under section 41 a person is not found guilty of

40

that offence by reference to any specified offence, he may be found guilty of

 
 

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

30

 

that offence by reference to one or more alternative offences in relation to any

of the specified offences.

(3)   

If in proceedings for an offence under section 41 a person is found guilty of the

offence by reference to one or more specified offences, he may also be found

guilty of it by reference to one or more other alternative offences.

5

(4)   

“Alternative offence”, in relation to an offence specified in an indictment as one

by reference to which an offence under this Part was committed, means an

offence of which, on a trial on indictment for the specified offence, an accused

could be found guilty.

(5)   

This section is without prejudice to—

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(a)   

section 6(3) of the Criminal Law Act 1967 (c. 58);

(b)   

section 6(2) of the Criminal Law Act (Northern Ireland) 1967 (c. 18).

53      

Penalties

(1)   

Subsections (2) and (3) apply if—

(a)   

a person is convicted of an offence under section 39 or 40; or

15

(b)   

a person is convicted of an offence under section 41 by reference to only

one offence (“the reference offence”).

(2)   

If the anticipated or reference offence is murder, he is liable to imprisonment

for life.

(3)   

In any other case he is liable to any penalty for which he would be liable on

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conviction of the anticipated or reference offence.

(4)   

Subsections (5) to (7) apply if a person is convicted of an offence under section

41 by reference to more than one offence (“the reference offences”).

(5)   

If one of the reference offences is murder, he is liable to life imprisonment.

(6)   

If none of the reference offences is murder but one or more of them is

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punishable with imprisonment, he is liable—

(a)   

to imprisonment for a term not exceeding the maximum term provided

for any one of those offences (taking the longer or the longest term as

the limit for the purposes of this paragraph where the terms provided

differ); or

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(b)   

to a fine.

(7)   

In any other case he is liable to a fine.

(8)   

Subsections (3), (6) and (7) are subject to any contrary provision made by or

under—

(a)   

an Act; or

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(b)   

Northern Ireland legislation.

(9)   

In the case of an offence triable either way, the reference in subsection (6) to the

maximum term provided for that offence is a reference to the maximum term

so provided on conviction on indictment.

 
 

 
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