Exploring the mens rea requirements of the Serious Crime Act 2007 assisting and encouraging offences

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Child, J J (2012)

This article examines the mens rea requirements of the new assisting and encouraging offences set out in Part 2 of the Serious Crime Act 2007. Analysing the case of Rv.S&H [2011] EWCA Crim 2872, a case in which the Court of Appeal attempted to clarify this complex and troublesome area, it is demonstrated how and why the court (as well as other academic commentators) have erred in their interpretations of the statute. Moving to clarify these areas of uncertainty, the article then seeks to cast light on concerns about the future operation of these offences, concerns previously hidden by that uncertainty.
  • References (18)
    18 references, page 1 of 2

    1 [2011] EWCA Crim 2872, [2012] 1 Cr App R 19.

    2 Introducing the inchoate offences of encouraging or assisting a criminal offence. Section 59 of the Serious Crime Act 2007 (hereafter 'SCA') abolishes the common law offence of incitement.

    3 See R v Sadique and Hussain [2011] EWCA Crim 2872, [2012] 1 Cr App R 19 at [33], Hooper LJ. For examples of academic comment, see J. Spencer and G. Virgo, 'Encouraging and Assisting Crime: Legislate in Haste, Repent at Leisure' [2008] Archbold News 7; D. Ormerod and R. Fortson, 'Serious Crime Act 2007: The Part 2 Offences' [2009] Crim LR 389; R. Fortson, Blackstone's Guide to the Serious Crime Act 2007 (Oxford University Press: Oxford, 2008).

    4 The principal ground of appeal contended that SCA, s. 46 was incompatible with Art. 7 of the European Convention on Human Rights.

    5 See, in particular, R v Sadique and Hussain [2011] EWCA Crim 2872, [2012] 1 Cr App R 19 at [81]-[90].

    6 Ormerod and Fortson, above n. 3 at 389.

    7 For example, unlike attempt and conspiracy, to be liable for assisting and encouraging under the SCA, D need only be reckless as to the circumstances, consequences (s. 47(5)(b)(ii)) and mens rea (s. 47(5)(a)(ii)) of the future principal offence.

    8 For work of this kind, see Ormerod and Fortson, above n. 3; Fortson, above n. 3.

    220 The Journal of Criminal Law (2012) 76 JCL 220-231

    15 This was first recognised in R v Khan [1990] 1 WLR 813.

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