Commentary on Sections Part 2: Encouraging or Assisting Crime.Inchoate offences Section 47: Proving an offence under this Part
152.This section sets out what needs to be proved to establish guilt for each of the offences in clauses 44, 45 and 46.
153.Subsections (2) to (4) set out that in order to establish that a person did an act capable of encouraging or assisting an offence under Part 2, it is sufficient to demonstrate that he did an act intending to encourage or assist an act which would amount to the commission of an offence, or believing that an act would be done which would amount to the commission of an offence.
154.Subsection (5) sets out what must be proved under sections 44, 45 and 46 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of fault, circumstances or consequences. In such cases, it must be proved that the person who provided encouragement or assistance either believed that, were another person to do the act, that person would have the necessary fault (subsection (5)(a)(i)) or he was reckless as to whether or not another person would have the necessary fault (subsection (5)(a)(ii)) or he himself would have the necessary fault (if he were to do the act himself) (subsection (5)(a)(iii)).
155.Subsection (5)(b) sets out what must be proved under sections 44, 45 and 46 if the offence that it is alleged a person intended or believed would be encouraged or assisted requires proof of particular circumstances or consequences. In such cases, it will also be necessary to demonstrate that a person who provides encouragement or assistance either believed, or was reckless as to whether, were another person to do the act, that person would do so in those circumstances or with those consequences.
156.Requiring some degree of belief in relation to circumstances ensures that a person would not be guilty of an offence of encouraging or assisting a strict liability offence unless he believes or is reckless as to whether those circumstances exist. For example, D asks P to drive him home from the pub as he has had too much to drink. P is insured to drive D’s car but unknown to D and P, P was disqualified from driving the day before. P is committing the principal offence of driving whilst disqualified, despite the fact he is not aware that he is disqualified, as this is an offence of strict liability. However it would not be fair to hold D liable in such circumstances.
157.Requiring some degree of belief in relation to consequences ensures that a person would not be guilty of an offence that requires certain consequences to arise for it to be committed, unless he believes or is reckless as to whether those consequences should arise. For example, D gives P a baseball bat and intends P to use it to inflict minor bodily harm on V. P however uses the bat to attack V and intentionally kills V. It would not be fair to hold D liable for encouraging and assisting murder, unless he also believes that, or is reckless as to whether, V will be killed.
158.Subsection (6) makes it clear that where subsection (5)(a)(iii) is relied upon (i.e. where fault required for conviction for offences is established because the person who has done an act capable of providing encouragement or assistance has the necessary fault element for commission of the offence himself), a person cannot escape liability purely because it is impossible for him/her to commit the offence.
159.For example, D (a woman) encourages P to penetrate V with his penis (rape) and believes that if P were to do so, it would be without V’s consent. P reasonably believes that V does consent so does not have the mental element required for conviction of rape. Therefore, D’s fault is determined under section 47(5)(a)(iii) in that if she were to commit the act, she would do it with the fault required. However it is not possible for a woman to commit the act of penetration with a penis so were it not for this subsection, D would escape liability.
160.Subsection (7)(a) makes it clear that, in relation to section 44 a reference to circumstances or consequences that a person believes includes circumstances or consequences that a person intends. Subsection (7)(b) clarifies what is meant by the word ‘intent’ in this regard.
161.Subsection (8) provides further definition as to what is meant by the phrase ‘doing an act’.
162.Subsection (9) provides further definition as to what is meant by the phrase ‘anticipated offence’ in relation to sections 44 and 45.