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Assisting and Encouraging Crime a Consultation Paper The Law Commission Consultation Paper No. 131 Assisting and Encouraging Crime A Consultation Paper HMSO The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Mr Trevor M. Aldridge, Q.C. Mr Jack Beatson Mr Richard Buxton, Q.C. Professor Brenda Hoggett, Q.C. The Secretary of the Law Commission is Mr Michael Collon and its offices are at Conquest House, 37-38 J.ohn Street, Theobalds Road, London WC1 N 280. This consultation paper, completed on 27 July 1993, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments before 1 March 1994. All correspondence should be addressed to: The Secretary Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 071-41 1 1250 Fax: 071-41 1 1297). It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this consultation paper. Whilst any request to treat all, or part, of a response in confidence will, of course, be respected, if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No. 131 Assisting and Encouraging Crime A Consultation Paper HMSO 0 Crown copyright 1993 Applications for reproduction should be made to HMSO. ISBN 0 11 730214 7 Printed in the United Kingdom for HMSO. Dd.0294478, 9/93, C13, 339715, 5673, 258257. THE LAW COMMISSION ASSISTING AND ENCOURAGING CRIME A CONSULTATION PAPER CONTENTS Paragraphs Page INTRODUCTION TO THE PAPERS 1 PART I - THE SUBJECT AND ITS LIMITS 2 The problem 1.1-1.5 2 Previous consideration of the subject 1.6- 1.10 3 Main areas of law addressed in this paper 6 Aiding and abetting 1.11 6 Incitement 1.12 6 c Joint enterprise 1.13-1.14 7 Liability for the acts of an innocent agent 1.15-1.18 7 Other related areas of law 1.19 9 Conspiracy to commit a crime 1.20-1.22 9 Possession offences 1.23-1.24 10 Vicarious liability 1.25-1.26 11 Accessories after the fact 1.27 12 PART II - THE PRESENT LAW 13 INTRODUCTION 2.1-2.2 13 AIDING AND ABETTING 13 The physical element in aiding and abetting 13 Paragraphs Page Principals and accessories distinguished 2.3-2.6 13 Accessories: historical background 2.7-2.9 15 Conduct constituting aiding and abetting 2.10-2.14 16 The role of causation 2.15-2.22 18 Omissions and neglect 2.23-2.24 21 Mere presence 2.25 22 Failure to exercise "control" 2.26-2.30 23 Assisting crime by performing a legal duty 2.3 1-2.34 24 I The commission of the offence by the principal 2.35-2.38 26 The guilty accessory and the innocent principal 2.39-2.46 28 I The mental element in aiding and abetting 31 I I I Preliminary 2.47-2.54 31 Mental element: the basic requirements 2.55-2.58 34 Good motive 2.59-2.62 36 Purpose 2.63-2.69 38 The accessory's knowledge of the principal crime 2.70-2.79 43 I Exceptions from, and defences to, accessory liability 47 Introduction 2.80-2.82 47 Exemption for protected persons 2.83-2.88 47 I Law enforcement 2.89-2.9 1 50 Purpose of limiting harmful consequences 2.92-2.94 51 Withdrawal 2.95-2.101 53 ~ Offences that can be aided and abetted 2.102-2.103 55 .. 11 Paragraphs Page Secondary participation in aiding and abetting 56 Preliminary 2.104-2.106 56 Inchoate offences applied to aiding and abetting 2.107 57 Joint enterprise 57 Status and development 2.108-2.110 57 The modem law 2.11 1-2.118 58 Relationship with complicity 2.119-2.120 62 Application to murder 2.121-2.123 63 Liability for unforeseen consequences 2.124 64 The future of the doctrine 2.125 64 C. INCITEMENT 64 Introduction 2.126 64 Elements of the offence 2.127 65 The knowledge and purpose of the inciter 2.128-2.131 65 Advice, encouragement and persuasion 2.132-2.136 67 Exemption for protected persons 2.137 70 Crimes that may be incited 2.138-2.141 71 PART III - THE NEED FOR REFORM 73 Introduction 3.1 73 Uncertainty and complexity 3.2 73 How is the physical element in complicity defined? 3.3 73 What is the required mental element in complicity? 3.4 74 What knowledge must the accessory have of the principal crime? 3.5 74 ... 111 Paragraphs Page What defences are available to a charge of complicity? 3.6 75 The co-existence of incitement and of counselling 3.7 75 Joint enterprise 3.8 75 Defects in the present law 3.9-3.28 76 The breadth of the law 3.10-3.14 76 Defences to accessory liability 3.15-3.16 78 The narrowness of the law 3.17-3.28 79 PART IV - OPTIONS FOR REFORM 84 INTRODUCTION 4.1-4.7 84 GENERAL ISSUES 85 The future structure of the law 4.8 85 Types of accessory conduct 4.9-4.11 85 Aiding and abetting and incitement 4.12 86 Assisting and encouraging 4.13-4.17 87 ASSISTING CRIME 88 An inchoate offence of assisting? 4.18-4.28 88 Objections to an inchoate offence of assisting 91 Preliminary: the broad characteristics of the offence 4.29-4.33 91 Non-intervention by the criminal law 4.34-4.37 93 Comparison with the unconvicted principal 4.38-4.42 94 Excessive width and vagueness 4.43-4.46 96 ASSISTING CRIME 96 The physical element of the offence 4.47-4.5 1 96 iv Paragraphs Page Advice as assistance 4.52-4.56 98 The offence assisted 4.57-4.63 99 A de minimis principle for assistance? 4.64-4.68 102 Omissions as "assistance" 4.69-4.75 103 The mental element of the offence 106 Purpose or awareness? 4.76-4.79 106 Should indifference to the commission of crime excuse? 4.80 107 Special cases to be excluded? 4.81 108 The test of knowledge or belief 4.82-4.84 108 The practical effect of the "belief' test 4.85-4.86 109 The "shopping-list" case 4.87-4.88 110 The principal's mens rea: a special rule for crimes of strict liability? 4.89-4.91 110 The alternative: "purpose" as the mens rea of assisting crime 4.92-4.98 111 Our provisional definition of the offence of assisting crime 4.99 113 Defences to an offence of assisting crime 4.100-4.142 114 Persons involved in statutory offences 4.101-4.105 114 Employees 4.106-4.112 116 Supply in the ordinary course of business 4.113-4.116 118 "Social" assistance 4.117-4.120 119 Defences associated with "good motive" 4.121-4.122 120 Law enforcement 4.123-4.128 120 Acts with the purpose of limiting harmful consequences 4.129-4.131 122 Withdrawal 4.132-4.137 123 V Paragraphs Page Cases where it is the defendant’s purpose that the principal offence should be committed 4.138-4.140 125 Other possible defences 4.141-4.142 126 ENCOURAGING CRIME 126 Introduction 4.143 126 An inchoate offence 4.144-4.145 127 The conduct constituting the offence 4.146-4.152 127 The mental element of the offence 4.153-4.156 129 Omissions as encouragement 4.157-4.158 131 Our provisional definition of the offence of encouraging crime 4.159-4.164 13 1 Defences to an offence of encouraging crime 134 Introduction 4.165-4.166 134 Persons involved in statutory offences 4.167 134 Withdrawal 4.168-4.169 135 ISSUES COMMON TO ASSISTING AND TO ENCOURAGING CRIME 135 Introduction 4.170 135 Complicity in summary offences 4.171-4.173 136 Impossibility 4.174-4.179 137 Complicity in the commission of inchoate and preliminary offences 4.180-4.184 139 Assisting or encouraging crime as the subject of other inchoate offences 4.185-4.187 140 Punishment 4.188-4.190 141 vi Paragraphs Page OTHER ISSUES ARISING FROM OUR REVIEW OF THE LAW OF COMPLICITY 142 Introduction 4.191 142 Procurement 4.192-4.197 143 Joint enterprise 4.198-4.201 145 The guilty accessory and the innocent principal 4.202-4.2 10 146 The effect of our proposals on the present law of conspiracy 4.21 1-4.215 149 The effect of our proposals on possession offences 4.216 150 Aiding and abetting a contempt of court 4.217 15 1 Statutory offences of assistance or incitement 4.2 18-4.220 151 The accomplice rule in the law of corroboration 4.221 152 PART V - ISSUES FOR COMMENT 5.1-5.2.17 153 APPENDIX OF FOREIGN JURISDICTIONS 155 Part 1: Australia 156 Part 2: Canada 179 Part 3: New Zealand 192 Part 4: The United States of America 199 vii ABBREVIATIONS In this Paper we use the following abbreviations: PWP No 43: Law Commission Published Working Paper No 43, Liability for Acts of Another (1972) WP No 50: Law Commission Working Paper No 50, Inchoate Oflences: Conspiracy, Attempt and Incitement (1973) Code Report: Law Commission Report Law Com No 177 (1989): A Criminal Code for England and Wales.
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