Is the statute right always?

Incietment is not a very much familiar chapter for us. So when i was reading this chapter i find there was a new Act coming .After effecting the satute regarding incietment (New Serious Crime Act 2007  ), i find the common law was much better regarding this topic.

To know about this we should look at :

n  Previous common law.

n  New Serious Crime Act 2007  part-2  sec 44-49.

n  Problem regarding the new Act

  

Previous Common Law:

n  In previous common law there was a draft Criminal  Code which does not describe the actus reus  & mens rea

n  It is describe by case laws.

n  And as there was a developing trend , and it  was sufficient to describe incitement

Some Important cases:

Actus Reus:

Marlow Case [1997] Crim LR 897

Giannetto Case [1996] Crim.L.R. 722 :

Race Relation Board v Appline [1973] QB 815

Mens Rea:

R v Curr (Patrick Vincent)  [1968] 2 Q.B. 944; [1967] 2 W.L.R. 595

R. v Shaw  [1994] Crim. L.R. 365

R. v C (David Alexander) [2005] EWCA Crim 2827; [2006] 1 Cr. App. R. 20; [2006] Crim. L.R. 345

NEW ACT:

n   Sec-44 :Intentionally encouraging or assisting an offence 

n  Sec-45: Encouraging or assisting an offence believing it will be committed 

          A person commits an offence .

n  Sec-46: encouraging or assisting offences believing one or more will be committed 

n  Sec-47: Proving an offence under this Part

PROBLEMS   with the New Act:

Sec-44:

n  It’s only extends liability beyond the old incitement offence to include doing an act capable of assisting, even if not actually encouraging, where the full offence is not committed.

n   For example-D will be liable under s.44 if he provided an imitation pistol to P with the purpose thereby to encourage or to assist the latter to carry out a bank robbery and the requirements of s.47(5) are satisfied .The fact that D did not intend to participate directly in the commission of the anticipated offence is immaterial. It is also immaterial whether the anticipated offence was committed, or not .

Sec-45:

n  It has boarded the mens rea, regarding this offence.

n   As an example of the operation of s.45, consider D who supplies a gun to P, believing that P will use it to commit a murder. Under s.45 D can now be convicted and liable to life imprisonment the instant he supplies the gun, provided he has the specified mens rea .

Sec-46:

n  This is the broadest, most complex and most controversial of the new offences. It is introduced to deal with the problem encountered in secondary liability .

n  For example- D drives P to a public house, being unsure whether D is going to commit robbery, murder, explosives offences or offences against the person . under s.46, D need only do acts capable of assisting or encouraging; they need not assist or encourage in fact. Secondly, P need not perform any act or commit any offence; D's liability is inchoate, not dependent on P and is complete as soon as D has performed his act. Thirdly, D's mens rea under s.46 must be merely a “ belief”  that one of the crimes will be committed.

Sec-47:

n  What does s.47(8)(c) do? We should begin by saying what it does not do. As argued by Rudi Fortson in his commentary on the Act, it does not create an offence of attempting to encourage or assist an offence.Although in ss.44 and 45 “ the doing of an act”  refers to the conduct of the encourager or assister, in section 47 it refers exclusively to the conduct of the perpetrator; and s.47(8) is relevant only to the interpretation of this section.Its effect therefore is limited to encouraging or assisting an attempt to commit an offence.

For more Details:

 Cases:

n  Marlow, [1997] Crim LR 897

n  Giannetto [1996] Crim.L.R. 722

n  Race Relation Board v Appline, [1973] QB 815

n  R v Curr (Patrick Vincent)  , [1968] 2 Q.B. 944; [1967] 2 W.L.R. 595

n  R. v Shaw,  [1994] Crim. L.R. 365

n  R. v C (David Alexander), [2005] EWCA Crim 2827; [2006] 1 Cr. App. R. 20; [2006] Crim. L.R. 345

Articles:

• Case Comment , Incitement , Criminal Law Review 1997, Dec,page 897-898

• Case Comment ,Incitement to incite - common law offence ,Apr , Criminal Law Review 1986. page 245-248

• Case Comment ,The mens rea of incitement, Alan Reed , Criminal Lawyer  2006, 162,  page  1-3

•  Encouraging or assisting an attempt ,David Ibbetson, Archbold News2009 ,3,page 8-9 :

       Serious Crime Act 2007: the Part 2 offences ,David Ormerod and Rudi Fortson , Criminal Law Review 2009, 6, page 389-414:

• Encouraging or assisting crime , L.H. Leigh , Archbold News 2008, 1,page 6-9:

       Encouraging and assisting crime: legislate in haste, repent at leisure, John Spencer and Graham Virgo , Archbold News 2008 , 9 ,page 7-9