Omar Scott v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford V.P.,Mrs Justice Farbey |
| Judgment Date | 19 January 2022 |
| Neutral Citation | [2022] EWHC 91 (Admin) |
| Docket Number | Case No: CO/2949/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 91 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Fulford
Vice-President Court of Appeal (Criminal Division)
and
Mrs Justice Farbey
Case No: CO/2949/2021
Adrian Waterman QC and Tim James-Matthews (instructed by Bindmans LLP) for the Appellant
Louis Mably QC (instructed by Crown Prosecution Service Appeals and Review Unit) for the Respondent
Hearing date: 25 November 2021
Approved Judgment
The appellant appeals by way of Case Stated against a decision of District Judge Ross Johnson (“the DJ”) sitting at Stratford Magistrates' Court on 27 April 2021. The appellant contends that the DJ misdirected himself in law when he found the appellant guilty of one charge of encouraging or assisting an offence believing it would be committed, contrary to section 45 of the Serious Crime Act 2007 (“the 2007 Act” or “the Act”). The offence which the appellant was found to have encouraged was the possession by a prisoner of an unauthorised mobile phone contrary to section 40D(3A) of the Prison Act 1952. The encouragement was that he had made and received phone calls, and sent and received text messages, to and from the prisoner's phone.
In the Case Stated the DJ asks the following questions:
“I. Can an offence of encouraging or assisting the commission of an either way offence contrary to s.45 of the Serious Crime Act 2007 apply in relation to the possession of a mobile phone in prison, when the phone was already in the possession of the principal offender before any conduct was carried out by the defendant?
II. Was I wrong to conclude that the conduct of the defendant was capable of encouraging or assisting the offence of possession of a mobile phone in prison on the facts of this case?”
We heard submissions from Mr Adrian Waterman QC with Mr Tim James-Matthews on behalf of the appellant and Mr Louis Mably QC on behalf of the respondent. We are grateful to counsel for their excellent submissions.
Background
The facts of the offence are set out in the Case Stated and were agreed at trial. On 30 November 2019, David Sika was remanded in custody at HMP Bristol. On 22 January 2020, following a search of his cell, Mr Sika was found to be in possession of a mobile phone. On 21 April 2020, police searched the appellant's home and found an iPhone. On the same day, the appellant was arrested on suspicion of encouraging or assisting an either way offence. He was taken to Islington Police Station where he answered “no comment” to all questions in interview.
The appellant was an acquaintance of Mr Sika and knew that he was on remand at HMP Bristol. He had visited him there on 21 January 2020 and was one of Mr Sika's approved telephone contacts. Investigations revealed that Mr Sika's telephone number had been stored in the appellant's phone since 16 December 2019. Between 10 December 2019 and 11 January 2020, the appellant's phone had contacted or attempted to contact Mr Sika's phone by calls and texts on 61 occasions (27 calls and 34 text messages). Between the same dates, Mr Sika's phone was used to contact or attempt to contact the appellant's phone on 71 occasions (35 calls and 36 text messages).
Following charge, the appellant appeared at Highbury Corner Magistrates' Court on 23 April 2020 and entered a not guilty plea. Owing to the COVID-19 pandemic, a number of hearings were adjourned but there was a hearing before the DJ on 27 January 2021 which concerned alternative charges. It is not necessary to deal with the outcome of that hearing which is not relevant to the questions we have to answer.
The trial took place before the DJ on 27 April 2021 when the appellant was convicted. As set out in the Case Stated, the DJ considered that the question under section 45 was whether the appellant's communications with Mr Sika's phone were “capable of encouraging or assisting” the ongoing possession of the prison phone. He found that Mr Sika had retained possession of the phone in order to communicate with parties outside the prison on an unmonitored device. If nobody had answered or returned any calls or messages from the phone, Mr Sika would have been discouraged from continuing with the possession of the phone. There would have been no purpose in taking the ongoing risk of possession and it would have been a simple matter for him to relinquish possession.
The DJ found that, as the appellant was one of Mr Sika's contacts who had actively engaged in communication with the phone, the appellant's actions were capable of encouraging Mr Sika to continue to possess the phone in prison in order to carry on contact with the outside world. The DJ disagreed with the defence submission that there was no causal link or connection between the appellant's actions and the ongoing possession of the phone. It mattered not whether Mr Sika would have continued to possess the phone regardless of the appellant's actions. The DJ held that the same would apply to each and every one of Mr Sika's contacts who actively engaged in communication with the prison phone. Each of the contacts was capable of encouraging the ongoing possession of the phone. Whether or not they did encourage the continued possession of the phone was not the issue under section 45.
The DJ went on to consider the mental elements of the section 45 offence and found that they were satisfied. As he was sure that all elements of the offence were satisfied, he found the appellant guilty.
On 22 June 2021, at Thames Magistrates' Court, the DJ sentenced the appellant to four months' imprisonment. The application to the DJ to state a case for the High Court was served on that day; he granted unconditional bail to the appellant pending the outcome of this appeal.
Legal framework
Section 45 of the 2007 Act provides as follows:
“ Encouraging or assisting an offence believing it will be committed
A person commits an offence if–
(a) he does an act capable of encouraging or assisting the commission of an offence; and
(b) he believes–
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission.”
This was one of three offences created by Part 2 of the Act. Section 44 created the offence of intentionally encouraging or assisting an offender. Section 46 criminalised the encouragement or assisting of offences believing one or more will be committed. Part 2 of the Act expressly abolished the common law, inchoate offence of inciting the commission of another offence (see section 59). It was not in dispute before us that the three Part 2 offences together were intended to replace the offence of incitement.
It was also not in dispute that, by introducing Part 2 of the Act, Parliament intended to remedy an anomaly. The offence of incitement could be committed where a person encouraged a principal to commit an offence that was not in the event committed. By contrast, where a person assisted a principal to commit an offence, there was no criminal liability if the offence was not ultimately carried out. The Law Commission, in its Report on Inchoate Liability for Assisting and Encouraging Crime (July 2006) (Law Com No 300) (Cm 6878), had described this distinction as a “major defect of the common law” (see para 1.3).
The new offences in Part 2 of the Act removed the distinction. A person may commit a Part 2 offence “whether or not any offence capable of being encouraged or assisted… is committed” (section 49(1)). The Act therefore treats encouraging and assisting in the same way: there is no need in either case for the Crown to prove that any other offence materialised. A section 45 offence may be committed at the point when a person does an act that is “capable of encouraging or assisting” an offence without the need for any other offence to eventuate (section 45(1)(a)).
Although sections 44–46 refer to encouraging or assisting an offence or offences, there is nothing in the language of the 2007 Act to suggest that Parliament intended to effect any other change or modification to the common law principles of secondary liability such as the notion of aiding and abetting. Nor does it affect anything in section 8 of the Accessories and Abettors Act 1861 by which a person who aids or abets the commission of any indictable offence is liable to be indicted as a principal offender. The Part 2 offences are discrete statutory offences. They have a different function from the principles of secondary liability. A key distinction is that secondary liability may only be established when the commission of the principal offence has been proved ( R v Robert Millar (Contractors Ltd) [1970] 2 QB 54, 72F–73D and authorities cited there). As I have already set out, an offence under section 45 does not depend on the commission of any other offence.
As regards the mens rea of a section 45 offence, a person must believe that the offence that is capable of being encouraged or assisted (which I shall for convenience hereafter call the principal offence) will be committed and that his or her act will encourage or assist its commission (section 45(b)). In addition, section 47(5) of the Act provides:
“In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence–
(a) if the offence is one requiring proof of fault, it must be proved that–
(i) D believed that, were the act to be done, it would be done with that fault;
(ii) D was reckless as to whether or...
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