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One asks whether he believed that that would be the impact. Did what he did assist that person or encourage him so to act? You then do not have to
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Lord Thomas of Gresford: I am most grateful to the noble Baroness for her very careful explanation. I am glad that I am beyond the stage of having to sum up to a jury on offences of this kind. I shall study what she has said, fortified as she is by the detailed arguments that the Law Commission has set out in its latest report. I expect that I shall be able to accept her reasoning. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley moved Amendment No. 95:
The noble Lord said: I shall speak also to Amendment No. 96 and the Liberal Democrats’ Amendments Nos. 95B and 96B in this group. Clause 40 creates a new offence of encouraging or assisting an offence believing that it will be committed. It sets out what a person must do to commit the offence:
The Government have consulted on whether the offence in Clause 40 should be widened. The majority of responses to question 5 in the consultation paper—new powers against organised and financial crime—were from police forces, banks and building societies. The Government’s summary of responses reported that the majority of respondents thought it right to criminalise the behaviour covered by Clause 40. However, opinions differed on the exact behaviour that should be criminalised. Responses were split between those who felt that the offence should be restricted to people who believe that an offence will be committed, as suggested by the Law Commission, and those who thought that it should be widened as the Government have suggested. Indeed, it seems that slightly more respondents favoured the Government's position.
Strong arguments were put forward both by those in favour of restricting the offence and by those in favour of extending it. The main reason put forward in favour of widening the offence was a concern that belief would be difficult to prove. There was concern that this could be given a narrow interpretation by the courts. As a result, several respondents put forward alternative suggestions, including that which forms
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We agree with the Government’s approach set out in their response to the consultation that the clause should not cover any person who has only the slightest idea that what he does might encourage or assist another to commit that offence, but that it should ensure that a person who commits an act capable of encouraging or assisting cannot avoid prosecution on conviction for the offence by claiming that, although he had a strong suspicion that the other person would commit an offence, he did not believe that that person would. I beg to move.
Lord Burnett: Amendments Nos. 95B and 96B have been proposed to us by Liberty. They would remove the defence of acting reasonably and in its place require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under either Clause 40 or Clause 41. The need for a defence to cover the kinds of behaviour envisaged clearly demonstrates the extensive scope of the Clauses 40 and 41 offences.
The defence of acting reasonably in Clause 46 is designed to enable a defendant—whom I will call “D” to carry on the nomenclature of initials that we seem to have established in our debate this afternoon—to escape liability for the new offences in the following kinds of situations. These are minor but important examples. First, D, a motorist, changes motorway lanes to allow a forthcoming motorist, P, to overtake, even though D knows that P is speeding. Secondly, D—let us call him a reclusive householder—bars his front door to a man trying to get into his house to escape from a prospective assailant. The third example is that D is a member of a DIY shop’s checkout staff and believes that the man P purchasing spray paint will use it to cause criminal damage.
I believe that we would all agree that, in the examples that I have cited, the defendant should not be convicted of a criminal offence. The behaviour described is not criminally culpable. There can be little doubt that it would be entirely reasonable for some people to continue with an action even if they believed that it would encourage or assist the commission of an offence.
Nevertheless, under the Bill as presently drafted, a person would be committing an offence in such circumstances unless he could prove that he was acting reasonably. In our view, the offences in the Bill present an unjustifiably low evidential hurdle for the prosecution, given the very wide scope of the offences. Once that has been crossed, in order to escape unjustifiable criminal liability, the defendant is then required to jump a very high hurdle: he has to persuade the jury that his actions were reasonable and should not, therefore, carry criminal liability. That may well prove difficult given the inherently uncertain concept of “unreasonableness”. We believe that the burden of showing the reasonableness of the
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Lord Thomas of Gresford: I would like to add to the comments of my noble friend our opposition to the Conservative Amendments Nos. 95 and 96. We think that it should be at the very least necessary for the prosecution to prove that the person in the dock believed that an offence would be committed—in other words, has a subjective belief—and not that he had “reasonable grounds to believe”, which would introduce an objective test into this criminal offence. We think that that would widen the offences very considerably and would be highly undesirable. We will say more on whether the clauses should stand part in a few moments.
Baroness Scotland of Asthal: I bear in mind of course the internal tension between the two sets of amendments, but perhaps I can assist the Committee best by explaining why we think that the structure that we have in the Bill does what noble Lords want and why, although we have sympathy with some of the suggestions that have been made, we have chosen not to go along those lines.
Amendments Nos. 95 and 96, in the names of the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, would replace the requirement that D himself believes that an offence will be committed and that his act will encourage or assist with a requirement that there are “reasonable grounds to believe” that an offence will be committed and that his act will encourage or assist its commission. That would incorporate an objective element into the offences, so that if a jury considered that any reasonable person in D’s position would have believed that an offence would be committed and that his act would encourage or assist it, D could be guilty of the offences in Clauses 40 and 41 even if he did not believe that himself.
I am sympathetic to those amendments. Indeed, the level of fault required for the offences, and the use of the word “believes” in particular, was one of the issues on which we consulted in the Green Paper that preceded the Bill and which we have thought about very carefully. We considered whether to include those who had reasonable grounds to believe that an offence would be committed, and we also considered other variants, such as covering those who suspected that an offence would be committed or those who believed that an offence might be committed. Views were divided on the issue.
We considered the issue in conjunction with prosecutors and discussed it with certain members of the judiciary and concluded that, as these are inchoate offences and therefore apply regardless of whether any harm has resulted, liability should be restricted to those who have a high degree of awareness that an offence will take place. In addition, we do not think that setting out that a person would be guilty where they had reasonable grounds to believe that an offence would take place would make
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That wording would probably cover D who claims not to have believed that an offence would be committed and that his or her act would encourage or assist its commission, despite the fact that the evidence is strong enough to suggest that any reasonable person would have done so. If that is the case, we would expect the jury to conclude that D is in fact not telling the truth and did believe that an offence would be committed.
I shall give the Committee an example that may assist. D lends P a knife. The prosecution alleges that D believed that P would use the knife to commit an act of grievous bodily harm on X. D denies this. In order to prove that there were reasonable grounds for belief that grievous bodily harm would be committed and that D’s act would encourage or assist grievous bodily harm, the prosecution would have to show some evidence. For example, D knew that P is a member of a gang that has used violence in the past, or that P has a history of convictions for violent offences, or that P has in some way indicated that he will commit grievous bodily harm. Our view is that, if the evidence is sufficient to show this, it would be sufficient for a jury to take the view that D is simply not telling the truth about his lack of belief in order to avoid conviction for the offence in Clause 40. I hope that I have been able to reassure the Committee that we have considered this issue very carefully. Although I sympathise with the sentiment behind the amendments, I must resist them and ask for them not to be pursued.
4.30 pm
Amendments Nos. 95B and 96B would, of course, add to Clauses 40 and 41 a new subsection that would exempt conduct by D that is considered reasonable. I agree entirely with the proposal that these offences should not cover conduct that is considered reasonable. This was recommended by the Law Commission, and we have taken forward that recommendation in the defence of acting reasonably in Clause 46. I know that we are going to discuss that defence shortly, but I reassure the noble Lord that the Bill provides that, if a jury considers that the defendant had been acting reasonably, he will have a defence to the offences in Clauses 40 and 41.
Amendments Nos. 95B and 96B would require the prosecution in each case to prove beyond reasonable doubt that the defendant’s behaviour was unreasonable. The prosecution will already have proved that the defendant has done something to encourage and assist an offence, believing that it will be committed. In those circumstances, it is surely for the defendant to establish that his or her behaviour was none the less reasonable. Only the defendant will be in a position to explain why he or she acted as they did. The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities.
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Lord Henley: I do not know whether the noble Lord, Lord Burnett, wants to intervene before I withdraw the amendment, but perhaps I shall say a few words first. I assure the noble Lord, Lord Thomas, that our amendments were tabled so that we could ask the Minister to put on record the Government’s reasoning behind their rejection of the wider interpretation of the offence. Having said that, I must say how grateful my noble friend and I are for the Minister’s detailed explanation, which I will certainly study with care. I think that it dealt with all the problems.
I was interested in the Minister’s response to the amendments in the names of the Liberal Democrat Peers. As one who likes things to be explained in very simple terms, I was rather hoping that she might respond to the three examples that the noble Lord, Lord Burnett, gave. One thinks particularly of the motorist changing lanes on the motorway to allow someone who is speeding to go past. That is something that we have all done on many occasions, and we would be greatly interested to know whether we would be committing an offence if we did so.
Lord Burnett: I, too, am grateful to the Minister for what she has said. I must not make too many confessions at this stage, but I do not often give way to people, although sometimes people very kindly give way to me. We will debate this again when we discuss Clause 46. Nevertheless, we will probably want to consider the Minister’s response and return to the matter on Report.
Lord Henley: Is the Minister going to respond?
Baroness Scotland of Asthal: I thought that I had. We think that the defence of reasonableness in Clause 46 enables the defendant to raise issues of the kind given in the examples. Certainly good courtesy on the road is always a delight, though rarely seen.
Lord Henley: I am sorry that I missed the Minister’s explanation of Clause 46. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 95A and 95B not moved.]
On Question, Whether Clause 40 shall stand part of the Bill?
Lord Henley: We have given notice of our intention to oppose Clause 40, but again this is a probing action. We have just discussed the issue covered in Clause 40 which sets out what a person would do in order to commit the offence of:
Similarly, Clause 41 creates the new offence of:
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The similarity between the two offences becomes even more obvious when one notes that the headings are identical except that Clause 40 refers to one offence and Clause 41 to “one or more”. I appreciate that Clause 41 goes on to provide for more than that, but it would appear that one should include the other. Our question for the Minister is simple: if Clause 41 covers one or more offences, does it not cover exactly the same ground as Clause 40? Surely this is in effect the duplication of an offence, which could lead to confusion. Will a person who encourages or offers assistance under the provisions of Clause 41 believing that an offence will be committed also fall under Clause 40? Which clause will be used by those trying to enforce these proposals?
Perhaps the inclusion of these two clauses will give the impression that the Government are being tough on crime, or tough on this type of crime, but is Clause 40 necessary at all? I hope that the noble Baroness can give us an explanation for why we need both Clauses 40 and 41.
Lord Dholakia: We sympathise with what the noble Lord, Lord Henley, has said on these clauses. We have added our names to the Questions of whether Clauses 40 and 41 should stand part of the Bill. I know that the clauses are not grouped together, but I shall set out my arguments relating to them both in order not to repeat myself.
My noble friends Lord Thomas of Gresford and Lord Burnett have spoken at length on the amendments tabled to Clause 40, so I shall explain what we hope to achieve by opposing the Question of whether Clauses 40 and 41 should be part of the Bill. As the noble Lord, Lord Henley, has just pointed out, the amendments to these clauses would remove the offences of:
Therefore the only new offence created in Part 2 would be that of:
We agree that when a person acts with the intention of encouraging or assisting the commission of an offence, his state of mind is sufficiently fault-worthy to justify a criminal conviction. But in this context we would expect “intention” to mean, in effect, that the purpose of the person’s action is to make the commission of an offence more likely by encouraging or assisting it. It is understandable that society would wish to prohibit and punish such behaviour in the hope of deterring actions which, while otherwise lawful, are designed to increase the likelihood of criminal behaviour by others. However, we are not convinced that the belief that one’s action will encourage or assist the commission of an offence by someone else is sufficiently fault-worthy to justify criminalisation. The effect of the belief offence in the Bill would be to criminalise behaviour that is
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The argument in relation to both these clauses is that while we do not dispute the fact that the Human Rights Act 1998 should apply to prevent an unjustified charge or prosecution in some cases, we consider that a better safeguard against inappropriate prosecution would be a more appropriately drafted offence. We are also concerned that the Human Rights Act 1998 would not apply where the otherwise lawful action of the defendant does not engage any human right.
I do not intend to speak again on Clause 41, and it would be very helpful if the Minister could give us an explanation for both these clauses.
Baroness Carnegy of Lour: When the Minister answers my noble friend on whether Clause 40 is necessary when you have Clause 41, could she tell us whether it has something to do with the fact that in Clause 41,
“A person commits an offence if ... he believes ... that one or more of those offences will be committed, (but has no belief as to which)”?
That means he is vague about what might happen; it might be one of a number of offences. Below, however, we read that,
I do not understand how those two provisions fit together. I am sorry if I seem confused.
Baroness Scotland of Asthal: The noble Baroness should not apologise at all in relation to these issues, because they are not easy. We need to go through them slowly to see how they fit in. I hope I will be able to help. I do not know if there is a suggestion that we should merge the two stand-part debates, but I shall give the short answer, and then if the Committee feels that more explanation over and above the discussions we have already had about the specific issues would be helpful, I will be happy to provide it.
The difference between Clauses 40 and 41, to come to the point of the noble Lords, Lord Henley and Lord Dholakia, is answered by the noble Baroness, Lady Carnegy of Lour, in her normal insightful way. Clause 40 deals with a person who believes that a specific offence will be committed, while Clause 41 deals with a person who believes that an offence will be committed but is not sure which. As such, the latter clause operates in a different way and needs to be dealt with separately.
For instance, you could have a situation where an individual believes that the offence of murder is likely to be committed, and that is the only reasonable offence within contemplation. The evidence therefore points towards a Clause 40 offence. However, there could be a situation where the belief is that one of a number of offences might be committed by an individual. For example, it may be that someone who rents out a property to an individual whom they know or believe to be a paedophile believes that an act of abuse may occur in those premises with a child of tender years, but they do not know which act it may be; it may a sexual assault, a physical assault, an
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