Legislation introduced in 2007 to fill a gap in the law against those who encourage or assist others to commit criminal offences has been criticised by the Justice Committee as "tortuous" in a post-legislative scrutiny report, echoing the wording of the Court of Appeal in its 2013 judgment in the case of Sadique. The Committee is also critical of 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.
Sir Alan Beith MP, Chair of the Justice Select Committee, 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. On this occasion, what the Ministry of Justice described in its memorandum as "interest" in these provisions from legal commentators turned out to be trenchant criticism of them. The Government needs to take this criticism more seriously.”
Following recommendations from the Law Commission, Part 2 of the Serious Crime Act abolished the common law offence of incitement and replaced it with three separate statutory offences of encouraging or assisting offences, set out in sections 44, 45 and 46 of the Act.
The Committee recognizes that there is an 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 which has been encouraged or assisted. A particular complexity is introduced in terms of the mental element, or the mens rea, of the offence, where the defendant must have mens rea in relation to his or her own acts, as well as certain mens rea in relation to the mens rea of the principal.
Notwithstanding this inherent complexity, the Committee agrees with evidence it received 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. Case law, in particular the case of Sadique which has twice been to the Court of Appeal, demonstrates that there is uncertainty about construction of the provisions. The Committee accepts that the latest Sadique judgment may allow the legislation to settle into accepted use and interpretation, but recommends that the Ministry conduct another post-legislative assessment of Part 2 in 2016.
The Committee takes issue with the Ministry’s conclusion that some of the issues raised are solely matters for the courts in their interpretation of the legislation, pointing out that if experience demonstrates that the drafting of legislation has been defective it is a matter for the Government and Parliament to amend that legislation.
Sir Alan Beith MP added:
“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
It is essential that Parliament, as the legislature, is made aware of difficulties being experienced in the courts in interpretation of legislation, especially where it bears directly on criminal liability. This must be an important part of the post-legislative scrutiny process.
If no settled interpretation of these provisions is reached in the courts we say that the Government should consider bringing forward proposals for revising or even replacing Part 2 of the Act.”