Consultation Paper on Inchoate Offences - Law Reform Commission

orderline case into a general “assist or encourage” category than it is tohave to put it in either “assist” or “encourage”. Add to this the inchoatenature of the offences – currently assisting someone in crime is only criminalif the crime is completed. The idea that there is a gap in need of pluggingcan be questioned. Not all behaviour that might be criminalised should becriminalised. A hypothetical case mentioned 72 is where a taxi driverbecomes convinced he is driving his passengers to a destination where theywill commit a robbery. From the point of view of his own safety heprudently carries them to their destination without protest. The taxi driverhas assisted crime and under the new scheme he may be guilty regardless ofwhether the crime is carried out or whether it truly was planned to be carriedout by the passengers.4.45 The Law Commission for England and Wales‟s proposed schemeincludes a defence of reasonableness to the belief offence. Two reasons castdoubt on how successful this defence would be in preventing conviction ofthose who ought not to be convicted, or indeed the prosecution of those whoought not even to be prosecuted in the first place. One reason is thevagueness and uncertainty of the defence – reasonableness is undefined –different officials at different stages of the criminal process may have adifferent idea of the circumstances in which the defence operates. Thesecond reason is that the defendant bears the burden of proving the defence.As such it is a departure from the presumption of innocence, which isfounded among other things on the very real concern about the difficultiesthat the ordinary accused faces in proving things in court against the betterequipped State. 734.46 On balance the Commission is not convinced of the need toreplace incitement with a new offence of assisting or encouraging crime.The Commission is particularly concerned that the new offence would castthe net of criminal liability too wide.4.47 The Commission provisionally recommends that the common lawoffence of incitement should not be replaced with a new relational inchoateoffence of assisting or encouraging crime.(2) Free speech4.48 The act of incitement is essentially a speech act; criminalisingincitement restricts speech. As such, incitement interferes with freedom ofexpression rights contained in the Constitution 74 and the European727374See Sullivan “Inchoate Liability for Assisting and Encouraging Crime – The LawCommission Report” [2006] Crim LR 1047, at 1054 for a variant.See Roberts “Taking the Burden of Proof Seriously” [1995] Crim LR 783.Article 40.6.1°(i).118