Legal

Robert was Called to the Bar in 1991 at Inner Temple. He practised for seven years at Iscoed Chambers, Swansea, before moving to 30 Park Place, Cardiff, in 1999. He specialises in criminal law and confiscation of the proceeds of crime. In November 2007 he accepted an invitation to join the newly-formed Apex Chambers, at 33-35 Cathedral Road, Cardiff CF11 9HB. Apex is the first set of chambers in Wales to specialise solely in criminal work. Their telephone number is 02920232032.
Robert is a member of the Attorney General’s A List of Prosecutors on the Wales and Chester Circuit. He is a member of the Legal Services Commission’s Funding Review Panel for Wales.

Texts of some recent lectures will be posted on the website, and if that is not exciting enough, there will be discussions on recent developments in case law and statute. Should be a white knuckle ride…

21/01/07: My latest article has been published in the Solicitors’ Journal. It is a review of recent changes to the Police and Criminal Evidence Act 1984 Codes of Practice and a brief discussion of a case relevant to the interpretation of the new grounds of arrest. Please take a look at http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=9594&c=1I have written an article entitled “Reflections on the Constitution”, which I produce below:

BRITAIN’S CONSTITUTION - SOME REFLECTIONS

I may not yet be forty, but there is no doubt that the British political system that was the subject of one of my “A” level courses just over twenty years ago has changed almost beyond recognition since 1997 to the extent that many of my written examination answers would no longer do. New Labour has energetically done for the old order of things. Those who agitated for change in those years ought to be rather pleased with “progress”. Scotland and Wales now have their own forms of government; the European Convention on Human Rights has been incorporated into English Law; we have a Ministry of Justice and are approaching a real separation of powers between executive and judiciary. Everything in the garden of liberal rationalism is lovely. Or is it? The Tory view of constitutional affairs is naturally far more pessimistic.

British Conservatives have always believed in a constitution that stood entirely above and beyond the vagaries of everyday politics. It is embodied by the concept of constitutional Monarchy. Our system of government evolved from the days of conquest and absolute rule, tempered by the fear of God. It was refined by civil war and bloodless revolution. It has been enhanced by universal suffrage, the ballot and boundary re-distribution. In short, our system of government had matured organically, like a very good claret. Our party now brings together those of us with differing views about the quality of certain years, for example 1715, but there is a real understanding of the effectiveness of gradual change. Our constitution was unwritten, sometimes self-contradictory. It did not stand to reason, but that is why it worked. The freedom of the people had been enhanced and safeguarded, but the very best of or traditions had been preserved. That is how things used to be.

To Conservatives, developments since 1997 have been unwelcome, hurried and dangerous. They have seemed to be an end in themselves, with questions about practical consequences having been conveniently avoided. This wrong-headed rationalist approach is leading to more constitutional confusion and less real freedom. To Conservatives, the British constitution is in danger of looking rather like that of the USSR in the late nineteen thirties; looking rather good on paper but in reality, things being rather grim.

To the policymakers of New Labour and their allies in the Liberal Democrats, constitutional reform has been a straightforward matter. Their approach has been to deal with something looking anachronistic or odd by getting rid of it. This approach reached its stunning climax when Tony Blair’s press office blithely announced the abolition of the post of Lord Chancellor during a Cabinet re-shuffle. It was only when they realised that this position had been embedded within our system by statute and precedent that an undignified retreat was made. Why this attempt? Was it to do with New Labour’s dislike and distrust of full-bottomed wigs, woolsacks and braided gowns than anything else. Or was it something more profound?

The role of the Lord Chancellor has been at the heart of one of New Labour’s constitutional dreams, namely separation of powers. This is where they seem to have nodded to the United States, finally putting right the anomalies that were famously overlooked by Montesquieu and adopting the wise methods of our American cousins. As he was a member of all three branches of government, the Lord Chancellor was a constitutional embarrassment. His role was far too powerful, dangerous, even. They did not stop to ask themselves the obvious question: was there in fact an abuse of power? Bearing in mind the personalities of most modern Lords Chancellor (until Lord Irvine, of course), the answer is no. Far from it, the role has been emblematic of the system of checks and balances that has ensured the workings of the constitution.

There was another affront to separation of powers that concerned Tony‘s friends. The Judicial Committee of the House of Lords (operating at an annual cost of £400,000) was the most senior level of the judiciary, yet there they were, sitting in the legislature’s Upper House and even taking part in debates! Upon the basis of Lord Falconer’s frankly bizarre contention that the Law Lords should not be part of the lawmaking process, a new Supreme Court (estimated annual cost £50 million) is on its way. No longer will we enjoy the mature and helpful contributions of law lords, which have so often served to improve Bills before Parliament. Most importantly, however, the contention that the Law Lords should not be part of the lawmaking process is, of course, incorrect. House of Lords cases set precedents that were, in the main, binding upon other courts. Their Lordships, quite literally, make law. In the ill-considered rush to Utopia, the Government are making sure that legislature and judiciary, embedded in their respective bunkers, will speak increasingly different languages from now on. Most fundamentally, the notion of the Judiciary actually being a part of the concept of Parliamentary Sovereignty is something that seems to have passed New Labour by. The concept of “The Queen in Parliament”, whereby the three limbs of the constitution were brought together, is being quietly buried.

What is equally worrying is the use of these “reforms” to cover up serious erosions to our freedoms perpetrated by this Government. The right to trial by jury is being eroded, with Judge-only courts proposed for fraud trials. Recent anti-terrorism legislation has paid scant regard to the obvious need to strike a careful balance between national security and individual freedoms. The proposed National Identity Card and Register Scheme bring the “surveillance state” ever nearer. It is as if the Government ask us to marvel at a splendid neo-classical façade whilst constructing a nasty concrete bunker within its new constitutional home.

The current Lord Chancellor now calls himself the Minister of Justice as well. Apart from its Orwellian overtones, the position and the new Ministry are quite simply, a botched job. It took about six weeks to put it together, which is why prison administration is now in the same department as the judiciary, sentencing and criminal justice. The warnings of senior judges from the Lord Chief Justice downwards have all been ignored. It would seem that Mr. Blair is more interested in currying favour with grey-bearded academics who spent much of the 1970s writing essays calling for such a thing. Mr. Brown will no doubt see to it that the title of Lord Chancellor ends up on the shelf, rather like the President of the Board of Trade. Let us hope at the very least that a Tory politician will dust it down and use it in future, rather like Michael Heseltine did when he went to the DTI. More than that, let us hope that a future Tory Government will repair some of the damage.

A good Tory, however, will properly observe that once changes like these are made, it is difficult to repair the damage. Nowhere is this adage more true than in the field of Scottish and Welsh devolution. The creation of these bodies has fuelled the understandable resentment of many English residents to the extent that many advocate an English Parliament. Any proposal which involves more politicians should not be attractive to Conservatives, it must be said. I believe that it is the question of finance and subsidy that lies at the heart of the tensions between England, Scotland and Wales. Scots and Welsh politicians must understand that political autonomy will come at an eventual price, namely a wholly legitimate expectation by the English that increasingly, Scotland and Wales will stand on their own two feet financially. English politicians should have the wisdom to realise that their large country will be better governed by strong city and county government, rather than by “Commons-lite”.

Perhaps the strangest development of all was the Human Rights Act of 1998. It is a fairly short and unremarkable-looking Act. At a stroke, it incorporated notions of law and freedom that were dramatically different from those in English Law. Freedoms and rights were now defined for the first time. English liberty had been defined only by its boundaries, that is, by what we couldn’t do, as opposed to what we could do. Here was a piece of legislation that was a rationalist’s dream. What better way of preserving our freedoms than by writing them down, they thought. What better way of conferring more power upon un-elected judges! With no Lord Chancellor to act as a check upon the judiciary, is there any way of stopping them from directly challenging and overriding Parliament’s authority? Already, the Human Rights Convention has been used to dramatically alter the effect of important legislation (eg Section 41 of the Youth Justice and Criminal Evidence Act 1999). Parliamentary Sovereignty is no longer what it used to be.

It is against this background that today’s Conservative Party is considering the creation of a British Bill of Rights, amongst other constitutional safeguards. New Labour’s new order (or should it be new chaos) forces us to consider concepts that would have seemed wholly alien only a dozen years ago. It may well be that we will have to adopt the sort of approach to constitutional affairs that would have made Disraeli smile.

05/06/07

My latest article has been published in the Solicitor’s Journal of 11th February 2008. It is reproduced below:

SERIOUS CRIME ACT 2007- Part One – A NEW COUSIN FOR THE ASBO
Another Parliamentary year, another piece of legislation. By recent standards, this Act, running as it does to one hundred and fifty-one pages, is a relatively small fish. Fifty-nine pages of sections in four parts are supplemented by ninety-two pages of Schedules. Its title does not do it full justice. This is an Act that is not only concerned with serious crime, but also is one that makes a major change to the law of criminal incitement. It contains provisions relevant to all parts of the United Kingdom, but in this article I shall deal purely with the main features of Part One and its application to the law of England and Wales.
Part One (Sections 1 to 43) creates the framework for the operation of a new kind of civil order: a Serious Crime Prevention Order (SCPO) against anyone over the age of eighteen (Sections 1 and 6). Such Orders can be made against individuals, bodies corporate, partnerships or unincorporated associations, unless specifically excluded by Order (Section 7). Only the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office may make applications for SCPOs-see Section 8. The ASBO has a new cousin.

Who makes/varies/discharges SCPOs and how?
Both the High Court (Section 1) and the Crown Court (Section 19) can make SCPOs. What, then, is the test to be applied by these Courts before making a SCPO?

  1. It must be satisfied that the subject of the order has been involved in serious crime, whether in England or Wales or elsewhere [S1(1)(a)]. In other words, the Court must look to past conduct.
  2. It must have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales [S1(1)(b)]. In other words, the Court must look to future potential conduct.

For the purposes of S1(1)(a), “involved in serious crime” means that

  1. the person has committed a serious offence in England and Wales. A conviction that has not been quashed on appeal or pardoned will drive the court to the this conclusion [Section 4(1)(a)(i) & (ii)];
  2. has facilitated the commission by another person of a serious offence in England and Wales. In deciding this issue, the court must ignore any act that the alleged facilitator can show to be reasonable in the circumstances and must also ignore his intentions or any other aspect of his mental state at the time [Section 4(2)(a) & (b)], or
  3. has conducted himself in a way that was likely to facilitate the commission of a serious offence in England and Wales by himself or another, whether or not that offence was committed [Section 2(1)]. Section 4(3)(a) & (b) sets out identical provisions to those in Section 4(2) for the Court to follow.

Section 2(4) extends the same test to serious offences elsewhere. Section 2(5) defines a “serious offence in a country outside England and Wales” as an offence which is:

  1. an offence [however described by that law – see Section 2(7)] under the law of a country outside England and Wales that;
  2. at the time of the application would be an offence under the law of England and Wales if committed in England and Wales and would:
  3. either be an offence specified in Part 1 of Schedule 1 of the Act or would be conduct that the Court considers sufficiently serious to be treated as if it fell within the Schedule.

The scheduled offences are ones of drug, people and arms trafficking, prostitution and child sex, armed robbery/assault with intent to rob, money laundering, fraud, revenue offences, corruption and bribery, counterfeiting, blackmail, plus certain intellectual property and environmental offences.
For the purposes of S1(1)(b), “involvement in serious crime in England and Wales” means any one of the following: the commission of a serious offence; conduct which facilitates the commission by another person of a serious offence or conduct which is likely to facilitate the commission by this person or another of a serious offence, whether or not such an offence is committed. This test is the one to be applied by the Crown Court when considering SCPOs [Section 19(2)].
Standard of proof and admissibility of evidence: Sections 35 and 36 make it clear that SCPO proceedings in both the High Court and Crown Court are civil proceedings and that the balance of probabilities is the test to be applied. In the Explanatory Notes to the Act, it is anticipated that as with ASBOs,, the standard of proof will be a flexible one, varying according to the seriousness of the issue to be proved. It follows that hearsay evidence will be admissible in these proceedings.
The High Court has the power to vary or discharge SCPOs (Sections 17 and 18), upon application from the relevant authority, the SCPO’s subject or any other person who is significantly adversely affected by the order. The Court must not deal with an application from the order’s subject unless it considers that there has been a change of circumstances. The Court must not deal with an application from any other person unless they were significantly adversely affected by the SCPO and that they had intervened as a third party in the original proceedings. If they had not so intervened, they can only now make an application if it is considered reasonable in all the circumstances that they did not intervene earlier. Finally, there also must be a change of circumstances.
SCPOs may be made by the Crown Court only when a person has been convicted of a serious criminal offence (Section 19). This can arise either upon conviction after Crown Court trial or upon committal for sentence from the Magistrates Court. The Crown Court may make a SCPO upon the same grounds as those set out in Section 1(1)(b) (see S19[2]). A SCPO must not be made by the Crown Court unless it is in addition to a sentence or conditional discharge order [Section 19(7)(a) & (b)]. The Crown Court will be able to vary the terms of an SCPO if a person subject to one appears before it for a further offence (Section 20). Similarly, where a Defendant has been convicted of breaching a SCPO, the Crown Court on sentence can vary the terms of the SCPO (Section 21). Rules relating to SCPO applications in the Crown Court will be set out in the Criminal Procedure Rules.
Section 22 makes provision for a degree of harmony (it is to be hoped) between the High Court and Crown Court when it comes to SCPOs. The Crown Court has the power to vary a High Court SCPO and vice versa. A decision by the Crown Court not to make or vary a SCPO does not prevent the High Court from making or varying a SCPO in consequence of the same offence.
The ambit and effect of SCPOs
Section 5 sets out examples of the types of provisions that may be contained within a SCPO. Subsection 1 makes it clear that the examples do not limit the type of provisions that may be made by a Court. Provided that the provision prevents, restricts or disrupts involvement by the respondent in serious crime in England and Wales, a SCPO can require that the respondent is to do or not to do something outside the jurisdiction. In S5(3), a list of examples is set out affecting individuals, namely travel, financial dealings or associations. S5(4) deals with examples relating to companies, partnerships and unincorporated associations. Section 5(5) makes provision for requirements on persons to answer questions, to provide information or to produce documents. Such requirements may specify the timing, frequency, location and form in which this requirement is to be discharged, plus the identity or type of law enforcement officer to which the answers, information or documents are to be provided.
The person or type of person to which answers, documents or information is to be provided will be known as an “authorised monitor” as defined by Section 39. The subject of an order can be ordered to pay the costs of the monitor, but not if the subject is an individual person. The Court can only include a term in the SCPO requiring the payment of costs after having regard to the means of the subject of the order, the expected amount of the costs and the effect upon the ability of the subject company or other body to carry on its business.
Section 5(6) makes it clear that a SCPO can apply to a person’s private dwelling house; for example, a provision relating to where that person may live.
Section 16 deals with the length of SCPOs. A SCPO must be clear as to when it is to come into force and when it is to cease. Differing provisions can come into force and cease to be of effect at differing times, but the SCPO cannot be in force for more than five years after the coming into force of the first of its provisions. A new order may be made before the expiry of an earlier SCPO or provision.
Failing to comply with the terms of an SCPO without reasonable excuse will be a criminal offence under Section 25. It is an either-way offence. The maximum penalty on summary conviction is twelve months or a fine whilst on indictment, imprisonment for up to five years. Section 26 confers powers of forfeiture of any item in the Defendant’s possession at the time of the breach offence that the Court considers to have been involved in the offence, provided that any person who claims to be the owner of the item or to have an interest in it has been permitted to make representations to the Court.
Sections 27 and 29 confer powers upon applicant authorities to petition the High Court to wind up a company, partnership or relevant body (eg a building society or limited liability partnership) that has been convicted of a Section 25 offence. The principle to be applied is whether it is just and equitable for the Company to be wound up. Such applications are to apply as if they were applications to wind up in the public interest pursuant to Section 124A of the Insolvency Act 1986.
Other Limitations
What about the rights of third parties? Section 9 deals with both High Court and Crown Court applications. If a third party makes application, the Court must give them an opportunity to make representations about the making, variation or discharge of a SCPO if the Court considers that its making, variation (or non-variation) or discharge (or non-discharge) would be likely to have a “significant adverse affect” on that person (see S9(1), (2), (3) and (4). If the third party had been given an opportunity to make representations in proceedings subject to appeal, the Court considering the appeal must give that third party the further opportunity to make representations if they make an application. It is difficult to imagine a third party intervening to object to the making of a SCPO, but there are plenty of scenarios in which third parties would seek to object to variation or discharge.
A SCPO or a varied SCPO only binds its subject if either that person is represented (in person or otherwise) at the proceedings in which the SCPO or variation was made, or that a notice setting out the terms of the SCPO has been served upon him. This can be done either to him in person or via recorded delivery to his last-known address. In order to deliver such a notice in person, a police constable or person authorised by the DPP, Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office may, by force if necessary, enter and search any premises where he has reasonable grounds for believing that the person is present [Section 10(3) & (4)].
Turning to the operation of an Order, Section 11 states that a SCPO may not require a person to answer questions or to provide information orally. This means that any statements made by persons in connection with an SCPO can be written only.
Section 12(1) states that a SCPO cannot require its subject to provide an answer, provide information or produce any document that is privileged. However, subsection (5) states that the order may require a lawyer to provide the name and address of one of his clients. Similarly, Section 13 excludes certain types of material from the ambit of a SCPO. “Excluded material” in England and Wales is defined by Section 11 of PACE, and covers the following items of material held in confidence:

a. personal records acquired or created in the course of a trade, business, profession or other occupation or with regard to a paid or unpaid office;

b. human tissue or tissue fluid taken for the purposes of diagnosis or medical treatment;

c. journalistic material.
Section 13(2) covers banking material held under a duty of confidence, unless the person to whom the duty is owed consents or that the SCPO contains a requirement to disclose banking material of this kind or a specific banking document.
Section 14 makes it clear that any SCPO cannot require a person to answer questions and provide information or documents if he is prevented from doing so by any other enactment, which includes Scottish and Northern Irish primary and subordinate legislation.
What about the interaction between these proceedings and criminal proceedings? Section 15 states that a written statement provided by a person as a result of a SCPO requirement cannot be used against him in criminal proceedings unless either:
a. the criminal proceedings relate to the offence of failing to comply with the SCPO itself or
b. in relation to other criminal proceedings, the person gives evidence inconsistent with the contents of the written statement and that evidence relating to that written statement is adduced or a question is asked about it by or on behalf of that person.
It is clear that the obtaining of documents relating to prior SCPOs is going to be an important consideration for disclosure officers and for defence lawyers when preparing for trial.
These provisions provide a further example of the strange contrast between the use of the civil standard of proof to make an order that upon breach attracts criminal sanctions. The ASBO’s new cousin is set to ruffle many more feathers in the years ahead.

SERIOUS CRIME ACT 2007 – PART TWO

Whereas Part One of the new Act dealt with a new type of civil order, Part Two turns to an entirely different topic, namely incitement. We will look in detail at the changes to be brought about in this area and also consider one or two of the more important provisions in the rest of the Act.

The draft Bill to reform the law of incitement that was published by the Law Commission in its 2006 Report entitled “Incohate Liability for Assisting and Encouraging Crime” forms the basis of Sections 44 to 67 of the new Act. The Law Commission identified several problems with the offence of incitement at common law. Most notably, the distinction between encouraging and assisting caused real problems when there was no attempt to commit or commission of the offence itself. In those circumstances, a Defendant may be criminally liable for encouraging another to commit an offence, but was not criminally liable for assisting another. The example given by the Law Commission was of D lending his van to P in the belief that P will use it in order to commit a robbery. The robbery is not committed. D is not criminally liable, but if he had uttered words encouraging P to commit a robbery, then he would be liable. This unsatisfactory state of affairs needed reform.

The Serious Crime Act abolishes the common law of incitement (Section 59). It creates three new offences of encouraging or assisting the commission of an offence in Sections 44, 45 and 46.

Section 44 creates the offence of doing an act capable of encouraging or assisting the commission of an offence with the intention so to do [Section 44(1)(a) & (b)] – in other words, encouraging or assisting with intent. The mere fact that encouragement or assistance was a foreseeable consequence of the defendant’s acts is not sufficient to establish an intention here. [Section 44(2)]. This is the first of the statutory inchoate offences recommended by the Law Commission. It will be sufficient for the Prosecution to prove that the Defendant intended to encourage or assist the doing of an act which would amount to the commission of the offence [S47(2)]. “Doing an act” for the purposes of these three sections is defined by Section 47(8) as including a failure to act, a continuation of an act that has already begun and an attempt to do an act, save for an act amounting to an attempt to commit another offence.

Section 45 creates the offence of doing an act capable of encouraging or assisting the commission of an offence where that person believes that the offence will be committed and that his act will encourage or assist its commission. This is the second of the statutory inchoate offences recommended by the Law Commission. The Prosecution must prove that the Defendant believed that an act would be done which would amount to the commission of that offence and that his act would encourage or assist the doing of that act [S47(3)].

Section 46 creates the offence of doing an act capable of encouraging or assisting the commission of one or more of a number of offences where the person believes that one or more of those offences will be committed and that his act will encourage or assist in the commission of one or more of them [S46(1)(a) &(b)(i)&(ii)]. It is not necessary for the person doing the act to have a belief as to which of the offences will be encouraged or assisted [S46(2)]. In charging a person with a Section 46(1) offence, the indictment must specify the offences alleged to be the “number of offences” but it is not necessary for all the offences potentially included in that number to be listed in the particulars of the indictment [S46(3)]. It is sufficient for the Prosecution to prove that the Defendant believed 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 that his act would encourage or assist the doing of one or more of those acts.

Section 47(5) sets out what has to be proved under Sections 44 to 46 in three types of contemplated criminal offence: those requiring proof of fault (eg rape); those requiring proof of circumstances (eg driving whilst disqualified) and those requiring proof of consequences (eg murder). Section 47(5)(a) states that if an offence requires proof of fault, then it must be proved that

  1. the Defendant believed that, were the act to be done, it would be done with that fault, and;
  2. the Defendant was reckless as to whether or not it would be done with that fault or;
  3. the Defendant’s state of mind was such that, were he to do it, it would be done with that fault. A Defendant is presumed to be able to do the act; in other words, he cannot escape liability because it is impossible for him to commit the contemplated offence [S47(6)]. For example, D, who is a female, encourages P to rape V. P does not have the requisite intent. Although D is not physically able to rape V herself, she is still guilty of encouraging P.

Where the offence requires proof of circumstances or proof of consequences (or both), Section 47(5)(b) states that the Prosecution has to prove that:

i. the Defendant believed (or intended, if it is a Section 44 offence) that, were the act to be done, it would be done in those circumstances or with those consequences, or;

ii. the Defendant was reckless as to whether or not it would be done in those circumstances or with those consequences. When a Section 44 offence is alleged, reasonable foresight of circumstances or consequences shall not be taken to prove intent.

These provisions are particularly important when dealing with allegations of encouraging or assisting in the commission of strict liability offences, where certain circumstances have to be proved. For example, if the D asks P, who he knows to be insured, to drive him home from a pub because D has drunk too much, but unbeknown to D, P is disqualified from driving, D will not be liable for encouraging or assisting the offence of disqualified driving by P.

When dealing with cases where consequences have to be proved (eg really serious injury or death), then intent, belief or recklessness as to the consequences will have to be proved. For example, if D gives P a baseball bat intending P to use it to inflict minor injury, but then P then intentionally kills V, D is not liable for encouraging or assisting murder unless D also believes V will be killed or is reckless as to whether or not V will be killed.

With regard to Section 46, it will be sufficient to prove belief or recklessness as to fault, circumstances or consequences in relation to just one of the offences listed [S48(2)]. Section 48(3) states that the offence must be referred to in the indictment, but it can be an offence not listed provided that it is an option via an alternative verdict (eg murder listed in the indictment, but manslaughter available as an alternative verdict). Can a person commit the offence of encouraging or assisting the commission of an offence if the offence itself is not committed? Yes, says Section 49(1).

If a person believes that an offence or offences will be committed if a certain condition or conditions were met, then he will be liable. For example, it will be a criminal act by D if he gives P money and tells him to give it to X to persuade X to lend them his car and further tells P that if X refuses to lend the car, P should take it anyway [Section 49(7)].

Acts committed wholly or partially outside the jurisdiction: Section 52(1) states that a person may be guilty of an offence of encouraging or assisting an offence regardless of his own location if he knew or believed that the act which would amount to an offence would take place at least in part in England and Wales. Section 52(2) states that if it is not proved that the Defendant knows or believes that what he anticipates might take place wholly or partly in England and Wales, he will be not guilty unless one of the three scenarios set out in Schedule 4 of the Act applies. I will describe them by reference to three examples.

The first scenario would be where D (a UK citizen) in Wales sends a parcel of poison to P (also British) in Spain, encouraging him to use it murder V (also in Spain). D can be tried in England and Wales for encouraging or assisting a murder because as a British citizen, he could be tried for the murder itself here because its actual location does not affect the Court’s jurisdiction.

The second scenario applies where D in England sends an e-mail to P in Spain with details of how to disable a bank alarm system. Theft is an offence in both countries, so D can be tried in England and Wales for encouraging and assisting in the bank theft.

The third scenario is where D (a UK citizen) in Canada sends poison to P (in France) encouraging him to use it to murder V (also in France). The Defendant could be tried in England and Wales for encouraging or assisting, upon the basis that as a British citizen and that if D committed the principal offence of murder himself he could be tried in England and Wales because of his British nationality.

Limitations: Any “Schedule 4” offence cannot be instituted without the consent of the Attorney-General (Section 53). Section 49(4) and (5) provide that a person cannot be liable under Section 45 or 46 if the contemplated offence is itself a Section 44, 45 or 46 offence or one of a number of offences listed in Schedule 3 of the Act (for example, solicitation of murder, encouraging terrorism, incitement to Perjury, assisting an escape, conspiracy). Further, Section 51 makes it impossible for a person who is in a protected category to be liable for encouraging and assisting an offence that exists in order to protect that protected category; for example, a twelve year old girl cannot be guilty of encouraging or assisting an adult to have sexual activity with her, a child under thirteen.

Defence of reasonableness: Section 50 allows the Defendant to assert that in the circumstances of which he was aware or in the circumstances that he reasonably believed existed, it was reasonable for him to act as he did. In determining reasonableness, the factors to be considered include: the seriousness of the anticipated offence or offences; any purpose for which the Defendant claims to have been acting and any authority by which he claims to have been acting [S50(3)]. This list is not exhaustive.

Mode of trial and penalty: Section 55 states that Section 44 and 45 offences are triable in the same way as the anticipated offence. Section 46 offences are triable upon indictment only. Section 58 states that the maximum penalty for Section 44, 45 or 46 offences will be the same as the maximum available upon conviction of the relevant anticipated or completed offence. The penalty for encouraging or assisting murder is life imprisonment.

Definitions: If the anticipated offence had been committed and it cannot be proved whether the Defendant has either encouraged or assisted the offence on one hand or has committed it as a principal on the other, he can be convicted of an offence under Section 44, 45 or 46 of this Act [Section 56]. Section 65 states that “encouraging or assisting” will include omissions to act where the omission is a failure to take reasonable steps to discharge a duty. Section 66 is designed to extend liability to individuals who arrange for another to do the encouraging or assisting; for example, a gang leader who orders a gang member to encourage C to kill someone will be regarded as having encouraged or assisted C. An act includes a course of conduct (Section 67).

This important change to the law of incitement is not yet in force; a statutory instrument bringing Part Two and its provisions into force has yet to be created.

Other changes: Amongst the “highlights” of Part Three of the Act is the abolition of the Assets Recovery Agency and the transfer of its operating functions to the Serious Organised Crime Agency, which came into force on 1st March 2008 (Section 74, Schedules 8 & 9). The extension of investigatory powers to all officers of HM Revenue and Customs, as opposed to just Customs Officers, provided under Section 88 and Schedule 12, came into force on 15th February 2008.

Section 87 extends police powers of stop and search by inserting new paragraph (aa) into Section 60(1) of the Criminal Justice and Public Order Act 1994. This will allow for the police to orally authorise a stop and search when an incident involving serious violence has taken place, that a dangerous instrument or offensive weapon used in this incident is being carried in any locality in the police area by a person and that it is expedient to give an authorisation to find the instrument or weapon. This oral authorisation is to be followed in writing as soon as practicable. This power can be used whether or not the police have a reasonable belief that a person is carrying a dangerous instrument or offensive weapon. The position under Section 60 has been that where serious violent incidents are anticipated and its is expedient to authorise a prevention of their occurrence, or where the police suspect that persons are carrying dangerous instruments or offensive weapons in the locality without good reason, then the authorisation of an officer of at least the rank of Inspector is required. This new paragraph is a departure from that procedure.

As we all get to grips with the consequences of this Act, I must report that this year’s Parliamentary session involves the passage of yet another Criminal Justice Bill. Practitioners are to be forgiven for asking “when will this ever end?”.