Encouraging Lawbreaking: Criminal Influence And Complicity

Encouraging someone to break the law is a crime in itself. In English criminal law, this is classified as an inchoate offence, meaning that although a substantial offence has not been committed, the defendant has taken steps to commit it or encouraged others to do so. This is outlined in the Serious Crime Act 2007, which states that an offence is committed if a defendant carries out an act capable of encouraging or assisting the commission of another offence. This act can be considered as solicitation to commit a crime or aiding and abetting, and it is not necessary for the incitement to be aimed at a specific person. The prosecution must prove that the defendant intended to encourage the commission of a crime, and the defendant cannot use the defence of later withdrawing from the act.

Solicitation to commit a crime

Encouraging someone to break the law is a crime in itself. In English criminal law, this is covered by the Serious Crime Act 2007, which deems it 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.

In the United States, solicitation to commit a crime is a federal offence. It involves seeking out someone else to engage in a criminal act. Defendants can be charged with solicitation if they ask another person to commit a felony. The primary factors of solicitation are the intent to have someone else commit a crime and an actual act committed to convince them to do so.

To convict someone of solicitation, a prosecutor must prove that the defendant affirmatively intended to have another commit a crime and that they encouraged or convinced the other person in some manner to commit the crime, such as through a command or suggestion. The other person does not need to have committed or attempted the crime for a solicitation charge to be brought.

Solicitation is considered an inchoate crime, meaning that it involves the planning and preparation to commit another crime, known as a "target offence". The planning itself is illegal, and a conviction can be made even if the target offence is never committed.

According to US law, those convicted of federal solicitation face exactly half the punishment they would face for committing the target offence itself. The exception to this rule is crimes that carry life sentences, such as first-degree murder, which carry a maximum sentence of 20 years for the solicitation.

Aiding and abetting

Encouraging someone to break the law is a crime in itself. In English criminal law, for example, this is covered by the Serious Crime Act 2007, which makes encouraging or assisting a crime an inchoate offence. Inchoate means "just begun" or "undeveloped" and refers to situations where a substantial offence has not been committed but the defendant has taken steps to commit it or encouraged others to do so.

In the US, the federal statute for aiders and abettors is considered incredibly broad and can be implied in every charge for a federal substantive offence. Under this statute, anyone who aids or abets a crime may be charged directly with the crime, as if they had carried out the act themselves. To convict someone of aiding and abetting, the prosecution must prove that:

• The accused had specific intent to facilitate the commission of a crime by another;
• The accused had the requisite intent of the underlying substantive offence;
• The accused assisted or participated in the commission of the underlying substantive offence; and
• That someone committed the underlying offence.

In Canada, a person who aids or abets in the commission of a crime is treated the same as a principal offender under the criminal law. The Crown must show that the accused had prior knowledge that "an offence of the type committed was planned", but it is not necessary to prove that the accused desired the result or had the motive of assisting the crime. Intention to assist the crime is sufficient.

Inchoate offences

Encouraging someone to break the law is considered a crime in itself in English criminal law, under the Serious Crime Act 2007. It is classified as an inchoate offence, which refers to situations where a substantial offence has not been committed, but the defendant has taken steps to commit it or encouraged others to do so. Inchoate means "just begun" or "undeveloped".

An attempt occurs when an individual takes a substantial step towards committing a crime but ultimately fails to complete the act. For example, if someone tries to break into a house but is unsuccessful, they have committed the inchoate offence of attempted burglary.

Solicitation is the act of asking, directing, or inciting someone to commit an offence, intending for them to engage in criminal conduct. For example, if someone asks a friend to steal something for them, they could be charged with solicitation even if the friend refuses.

Conspiracy involves an agreement between two or more people to commit a crime, along with an overt act taken by at least one of the conspirators to further the criminal objective. For instance, if two people plan a burglary and one of them buys tools for the job, they have committed the inchoate offence of conspiracy.

It is important to note that inchoate offences merge into the target offence, except for conspiracy. This means that a suspect cannot be charged with both the attempt and solicitation of a crime, only the crime itself. However, conspiracy and the target offence can be charged together.

Mens rea

Encouraging or assisting a crime is itself a crime in English criminal law, as per the Serious Crime Act 2007. This is an example of an inchoate offence, where a substantial offence has not been committed but the defendant has taken steps to commit it or encouraged others to do so.

The prosecution must prove that the accused committed the actus reus for a person to be found guilty of a crime. However, the act of committing a crime alone does not always establish criminal responsibility. The mental component of a crime, or mens rea, must also be proven by the prosecution. Mens rea describes the criminal's state of mind at the moment of the crime, involving the intent to commit a crime or the knowledge that they will. For example, if someone intentionally shoots and kills someone, they have the necessary mens rea for murder.

In the context of encouraging or assisting a crime, the mens rea requirement under Section 44 of the Serious Crime Act 2007 is that the defendant carries out an act capable of "encouraging or assisting" the commission of another offence with the intent to do the same. Under Section 45, the act must be done "believing that the offence will be committed and that the act will encourage or assist its commission". Under Section 46, there must be multiple possible offences being encouraged or assisted, and at least one is foreseen.

The specific actus reus required to establish criminal liability varies depending on the offence. For example, in a murder case, the actus reus would be the physical act of killing another person, while in a drug possession case, it would be the possession of an illegal substance.

To summarise, for someone to be judged guilty of a crime, both mens rea and actus reus requirements must be met. In the case of encouraging someone to break the law, the mens rea requirement involves the defendant's intent or belief that their actions will encourage or assist the commission of a crime.

Accessorial liability

In English criminal law, encouraging someone to break the law is itself a crime, as outlined in the Serious Crime Act 2007. This is known as an 'inchoate' offence, where the defendant has taken steps to commit a crime or encouraged others to do so, even if a substantial offence has not been committed.

Now, onto accessorial liability.

Being involved in a contravention means the person or company:

• Assisted, recommended, or caused the contravention
• Influenced the contravention (e.g., by making threats or promises)
• Was knowingly concerned in or was a party to the contravention
• Conspired with others, resulting in the contravention

The Fair Work Act 2009 (FWA) includes civil penalty provisions, meaning the court can order entities that contravene these provisions to pay large sums as fines or to those injured by the contraventions. Individuals involved in the contravention of a civil penalty provision can be held liable as if they committed the act themselves. This is accessorial liability.

Section 550 of the FWA defines the parameters of accessorial liability. A person is involved in a contravention if they:

• Aided, abetted, counselled, or procured the contravention
• Induced the contravention, whether by threats, promises, or otherwise
• Were in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention
• Conspired with others to effect the contravention

To be 'involved in' the contravention, a person must have intentionally participated in it, requiring actual knowledge of the essential matters of the contravention at the time. This can be inferred through wilful blindness, but it is unnecessary to prove the person knew their participation was a breach. It is also not sufficient to establish liability if the person only acquired that awareness after the fact.

Lessons for Company Directors, HR, and Managerial Staff

Make sure you know all the facts about how employees are being treated. If you suspect something, speak up, and don't assume you will escape liability for just following orders.

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