Exploring the Mens Rea Requirements of the Serious Crime Act 2007 Assisting and Encouraging Offences
| Author | J. J. Child |
| DOI | 10.1350/jcla.2012.76.3.770 |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| Subject Matter | Comment |
COMMENT
Exploring the Mens Rea Requirements of the
Serious Crime Act 2007 Assisting and
Encouraging Offences
J. J. Child*
Keywords Assisting; Encouraging; Inchoate; Serious Crime Act 2007; R
v Sadique and Hussain (2011)
With the judgment in R vSadique and Hussain,1the Court of Appeal can
now be added to the chorus of academic voices lamenting the im-
penetrably complex drafting of Part 2 of the Serious Crime Act 20072in
general, and the mens rea provisions in particular.3With this in mind, it
is therefore understandable that despite the rather weak ground for
appeal in R vSadique and Hussain,4the court took some considerable
time working towards and setting out a simplified overview of the
relevant offence.5Such an enterprise is clearly in great need. After all,
although the SCA’s assisting and encouraging provisions may be ‘the
most convoluted . . . in decades’,6their extreme breadth of application,
even in comparison to the other general inchoate offences with which
they overlap considerably,7will surely make them increasingly irresist-
ible to prosecutors.
This comment does not seek to provide an overview of the Part 2
offences as a whole.8Rather, its focus will be narrowed to arguably only
the most complex and troublesome elements of the offences, those
relating to mens rea. The advantage of this narrowed focus is that rather
* Senior Lecturer in Law, Oxford Brookes University: e-mail: jchild@brookes.ac.uk.
I would like to thank Dr Adrian Hunt and Phoebe Child for reading an earlier draft
of this comment. The usual disclaimer applies.
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 vSadique 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 vSadique 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
doi:10.1350/jcla.2012.76.3.770
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