Prevention of Harm—Legislative Strategies for Law Reform

Date01 June 2008
DOI10.1350/jcla.2008.72.3.500
Published date01 June 2008
Subject MatterArticle
Prevention of Harm—Legislative
Strategies for Law Reform
Clare Wade*
Abstract This article looks at the development of preventative civil
measures with criminal sanctions and the ways in which they are inf‌lu-
encing criminal law. It argues that serious crime prevention orders in Part
1 of the Serious Crime Act 2007 are a part of this trend and further, that
they undermine traditional notions of due process. The provisions of Part
1 of the Serious Crime Act 2007 are contrasted with Part 2 of the Act. The
article also argues that the new inchoate offence of encouraging and
assisting crime and the Law Commission proposals for conspiracy will
provide suff‌icient measures against future harm therefore obviating the
need for civil preventative orders.
Keywords Serious Crime Act 2007; Serious crime prevention
orders; Due process; Conspiracy; Harm
This article examines some of the Law Commission’s proposals for a
reformed law of conspiracy1which build on its previous recommenda-
tions for another inchoate offence2of assisting and encouraging crime.3
Two aspects of its Consultation Paper No. 183, Conspiracy and Attempts,
namely, the proposed test for mens rea and double inchoate liability are
examined against the backdrop of the Serious Crime Act 2007,4which,
as well as implementing the recommendations for assisting and encour-
aging crime, seeks to introduce a new form of civil order to prevent
serious crime ‘Serious Crime Prevention Orders’(SCPOs). The order,
which is arguably punitive, in effect circumvents the usual requirements
of due process. It is suggested that the protection of the public by
prevention of crime should be achieved by reform of the wider sub-
stantive criminal law rather than by the introduction of a draconian
system of civil orders. The recommendations and proposals regarding
the inchoate offences of assisting and encouraging and conspiracy are
one example of how such criminal law reform is a preferable means to
target potentially harmful activity.
* Barrister at Tooks Chambers and Criminal Lawyer at the Law Commission; e-mail
Clare.Wade@LAWCOMMISSION.GSI.GOV.UK. This article ref‌lects my own views
and not necessarily those of the Law Commission. I am grateful to Professor
Jeremy Horder and David Hughes for their comments on earlier drafts of this
article.
1 Law Commission, Conspiracy and Attempts, Law Com. Consultation Paper No. 183
(2007) Parts 1–11. This article is not concerned with the proposals on attempt in
Parts 12–17.
2 An inchoate offence is one where the substantive (or principal) offence has not
been committed. It aims to prevent harm from occurring. Examples are
conspiracy, attempt and the recently recommended offence of assisting and
encouraging crime (see Law Commission, Inchoate Liability for Assisting and
Encouraging Crime, Law Com. Report No. 300 (2006) and the Serious Crime Act
2007, Part 2).
3 Law Commission, above n. 2.
4 Part 2 not yet in force.
236 The Journal of Criminal Law (2008) 72 JCL 236–250
doi:1350/jcla.2008.72.3.500

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT