Encouraging the Continuation of a Pre-Existing Offence Under the Serious Crime Act 2007
| Author | Tony Storey |
| DOI | http://doi.org/10.1177/00220183221138441 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Case Notes |
Encouraging the Continuation
of a Pre-Existing Offence Under
the Serious Crime Act 2007
Divisional Court
Keywords
Encouraging or assisting, possession of unauthorised phone, prison
Between December 2019 and January 2020, Omar Scott (OS) made and received calls, and sent and
received text messages, to and from a mobile phone that was in the possession of David Sika (DS), a
prisoner in HMP Bristol. OS was charged with doing an act capable of encouraging or assisting the pos-
session of an unauthorised phone in prison (an offence under s40D of the Prison Act 1952, as amended),
contrary to s45 of the Serious Crime Act 2007 (the Act). The Crown case was that by making and receiv-
ing calls, and by sending and receiving texts, to and from DS’s phone, OS was encouraging DS to possess
the phone. OS appeared before District Judge Ross Johnson (the DJ) at Stratford Magistrates’Court in
April 2021. He was convicted and appealed, arguing that the DJ had misdirected himself by finding that
there was an act ‘capable’of encouraging the possession of a phone in prison, given that DS already had it
before any of the calls or texts were made, sent or received.
Held, dismissing the appeal, that the word ‘capable’had a prospective meaning. The question was
whether an act might at some future point encourage or assist the commission of an offence (at [33]).
However, as a matter of logic, there was nothing to prevent the application of s 45 of theAct to offending
that had already commenced (at [34]). Moreover, it was ‘plain’that Parliament intended s 45 to apply in
circumstances such as those in the present case. Section 47(8) of theAct provides that the doing of an act
includes ‘the continuation of an act that has already begun’(at [35]).
Commentary
When theAct was passed, academic reaction to Part 2 (which contains the provisions on encouraging or
assisting crime, ss 44–67) was less than enthusiastic. For example, David Ormerod and Rudy Fortson,
‘ SeriousCrime Act 2007: the Part 2 offences’[2009] Crim LR 389, described the legislation as
‘complex’,‘convoluted’,‘tortuously difficult’and containing ‘some of the worst criminal provisions
to fall from Parliament in recent years …. These are offences of breathtaking scope and complexity.
They constitute both an interpretative nightmare and a prosecutor’s dream’. Similarly, John Spencer
and Graham Virgo described the provisions as ‘complicated and unintelligible …over-detailed, convo-
luted and unreadable’(‘Encouraging and assisting crime: legislate in haste, repent at leisure’(2008) 9
Arch News 7).
However, in the years that followed, there have been relatively few cases that have reached the appel-
late courts exploring the interpretation of Part 2 of theAct. Most of the Court of Appeal cases on Part 2 of
theAct have been sentencing appeals. What these cases reveal is that the Part 2 offences (ss 44–46) have
Case Note
The Journal of Criminal Law
2022, Vol. 86(6) 496–498
© The Author(s) 2022
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DOI: 10.1177/00220183221138441
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