Encouraging Lawlessness: Criminal Or Free Speech?

Encouraging someone to break the law is a crime in itself. In English criminal law, this is known as inchoate, meaning that although a substantial offence may not have been committed, the defendant has taken steps to commit it or encouraged others to do so. This falls under the Serious Crime Act of 2007, which states that an accessory (someone who assists or encourages a principal offender) may be punished in the same way as a principal. The act of encouragement can be considered similarly to the previous crime of incitement, and it does not matter if the encouragement has no effect. However, the prosecution must prove that the defendant had the intention to encourage the commission of a crime.

Encouraging or assisting a crime is a crime in English law

The Serious Crime Act 2007 states that an offence is committed if a person carries out an act capable of "encouraging or assisting" the commission of another offence. This means that even if the encouragement has no effect, the act of encouraging or assisting is still a crime. For example, in the case of *Invicta Plastics Ltd v Clare*, a company sold a device to detect radar traps used by the police, which is illegal. The company was found guilty of encouraging a crime, even though the device could also be used in a legal way.

There are three ways in which an offence can be committed under the Serious Crime Act 2007:

• Under Section 44, if a person carries out an act capable of "encouraging or assisting" with the intent to do so.
• Under Section 45, if a person carries out an act capable of "encouraging or assisting" believing that the offence will be committed and that the act will encourage or assist its commission.
• Under Section 46, where there are multiple possible offences being encouraged or assisted, and at least one is foreseen.

It is important to note that the defendant does not have to successfully communicate their thoughts to anyone else for an offence to be committed. Additionally, the encouragement does not have to be aimed at a specific person.

The term "encouraging" is not defined in the statute, but it can be considered similarly to the previous crime of incitement. "Assisting" is likely to be considered similar to "aiding" in accessorial liability and can be provided indirectly through a third person.

While there is no defence of later withdrawing from the act, there is a defence of "acting reasonably" under Section 50, which can take two forms: either the acts themselves were reasonable, or the defendant reasonably believed in circumstances that did not exist and acted reasonably under those circumstances.

The Serious Crime Act 2007 makes it an inchoate offence

The Act sets out several sections that outline what constitutes an offence.

Section 44 of the Act creates a new offence of "intentionally encouraging or assisting an offence". It states that a person commits an offence if they do an act capable of encouraging or assisting the commission of an offence, and they intend to encourage or assist its commission. It is important to note that foresight of consequences is not sufficient to establish intention.

Section 45 creates an offence of "encouraging or assisting an offence believing it will be committed". This means that a person commits an offence if they do an act capable of encouraging or assisting the commission of an offence, and they believe that the offence will be committed and that their act will encourage or assist its commission.

Section 46 creates an offence of "encouraging or assisting offences believing one or more will be committed". This section states that a person commits an offence if they do an act capable of encouraging or assisting the commission of one or more offences, believing that one or more offences will be committed, and that their act will encourage or assist the commission of one or more of them. It is not necessary for the person to have a belief as to which specific offence will be encouraged or assisted.

These offences are inchoate because they criminalize the act of encouraging or assisting another person to commit a crime, even if the substantive offence is never actually committed. The Serious Crime Act 2007 replaced the common-law crime of incitement with these new statutory offences, reflecting a significant change in English criminal law.

Intent to encourage must be proven

Encouraging or assisting a crime is itself a crime in English criminal law, as outlined in the Serious Crime Act 2007. This is the case even if the encouragement or assistance has no effect. However, for someone to be found guilty of encouraging or assisting a crime, the intent to encourage must be proven.

Proving intent is often one of the most important parts of a case. It must be proven beyond a reasonable doubt. This can be done through direct or circumstantial evidence. Direct evidence includes testimony from someone who heard the defendant express their intention, an eyewitness account of the defendant acting deliberately, or a confession from the defendant. Circumstantial evidence, on the other hand, requires an inference of presumption. For example, if the defendant was loitering in the area of a crime before it occurred, this does not prove intent, but it can be used to make reasonable inferences about their intentions.

In the case of encouraging a crime, the prosecution must show that the defendant intended or was reckless about the potential circumstances or consequences of their actions. For example, they must show that the defendant intended for their actions to result in a specific crime or that they were aware of the potential for their actions to encourage or assist in the commission of a crime.

It is important to note that the definition of "encouraging" is not explicitly defined in the statute and can be interpreted similarly to the previous crime of incitement. Additionally, there is no requirement for the incitement to be directed at a specific person. Addressing it to the world at large can still constitute incitement.

Encouragement can be indirect

Encouraging someone to break the law is a crime in itself. In English criminal law, the Serious Crime Act 2007 states that encouraging or assisting a crime is an offence. This is the case even if the person who encouraged the crime did not communicate their thoughts to anyone else. For example, if a letter containing encouragement is posted, the act of posting it is enough to constitute an offence.

Additionally, assistance can be provided indirectly, such as through a third person. In the case of R v Marlow, providing information on growing cannabis was found to be an offence.

It is important to note that the encouragement must be intentional. The prosecution must prove that the defendant intended to encourage the commission of a crime, and the defendant must have knowledge of the essential elements of the intended offence.

The act of encouragement is criminal, regardless of outcome

The act of encouragement is a criminal act in and of itself, regardless of the outcome. This is the case in English criminal law, by virtue of the Serious Crime Act 2007, which states that encouraging or assisting a crime is a crime. The act of encouragement is considered an inchoate offence, meaning that although a substantial offence may not have been committed, the defendant has taken steps to commit it or encouraged others to do so.

The actus reus requirement for an offence of encouragement is that the defendant carries out an act capable of "encouraging or assisting" the commission of another offence. This means that the defendant's actions must meet the criteria of encouragement or assistance, regardless of whether the person they encouraged or assisted went on to commit a crime.

The law also considers the mens rea, or intention, of the defendant. For an offence of encouragement to be committed, the defendant must have intended to encourage or assist the principal offender, or believed that their act would encourage or assist the commission of an offence. It is not enough that they might have done so.

The complexity of these provisions is demonstrated in the case of Ameen Hassan Jogee, who was convicted of murder under the principles of joint enterprise. Jogee and his friend Mohammed Adnam Hirsi spent the evening drinking and taking cocaine. They then went to the home of Fyfe, Fyfe's girlfriend's partner, where Jogee picked up a knife and threatened to stab another man. Jogee and Hirsi left but returned later, and Jogee was outside shouting and damaging Fyfe's car. He threatened to smash a bottle over Fyfe's head and was "egging" Hirsi to "do something" to Fyfe, who was then stabbed by Hirsi. Jogee was convicted on the basis that he had encouraged Hirsi to commit the murder, even though it was Hirsi who carried out the physical act.

Frequently asked questions