Criminal offences of encouraging and assisting crimes are too ‘complex and difficult’ for lawyers to understand, according to a high-profile committee of MPs.
In a report published today on the post-legislative scrutiny of part 2 of the Serious Crime Act 2007, the cross-party justice committee criticised as ’tortuous’ the provisions, which were intended to fill a gap in the law to penalise those who encourage or assist others to commit criminal offences.
The report says the sections are ‘complex and difficult to understand for lawyers, let alone for defendants, jurors and lay-people working in the criminal justice system.’
Part 2 of the act abolished the common law offence of incitement, and replaced it with three separate offences of encouraging or assisting offences.
The committee agreed with evidence from eminent academics that the drafting of the provisions, and the decision to structure the legislation on the basis of three offences, rather than the two recommended by the Law Commission, had introduced ‘additional and unnecessary convolution’.
In written evidence, academics, practitioners and judges criticised the provisions as ‘unintelligible’ and ‘difficult to interpret’. The committee acknowledged the ‘inherent complexity’ in setting out in statute so-called ‘inchoate’ offences, where the liability of a defendant does not depend upon the principal committing or attempting to commit the substantive offence that has been encouraged or assisted.
An article by Queen Mary University of London professors David Ormerod and Rudi Fortson in the Criminal Law Review, cited by the committee, said part 2 creates ‘some of the most convoluted offences in decades’, introducing ‘excessive complexity’. They said the resulting offences were ‘too broad’ and created ‘unwarranted incoherence and overlap with secondary liability’.
In his evidence, Cambridge University professor John Spencer asked: ‘Can you imagine the task of the duty solicitor explaining these provisions to their client?’
The committee pointed to the case of Sadique [2011 EWCA crim 2872], which has twice been to the Court of Appeal in relation to the sections, to demonstrate the uncertainty about the construction of the provisions.
The committee’s chairman, Liberal Democrat Alan Beith MP, said: ‘The issues raised by the committee may be relatively technical questions of drafting, but they concern criminal offences for which charges are increasingly being brought - for example they were used in a substantial number of cases after the 2011 summer riots.’
If no settled interpretation of these provisions is reached in the courts, the committee recommended that the government consider bringing forward proposals to revise or replace part 2 of the act.
The committee also criticised the Ministry of Justice for providing a ‘poor and misleading’ analysis of legal commentary and case law in its original post-legislative memorandum on the Serious Crime Act 2007, submitted last November.
It said that, what the ministry described as ‘interest’ in the provisions from legal commentators, turned out to be ‘trenchant criticism’ of them.
Beith said: ‘If select committees are to carry out effective post-legislative scrutiny, examining how well legislation is working once it has been passed, then they must have confidence that the government is providing them with a fair and objective assessment in their memoranda.’