Serious offences

In England and Wales, a serious offence is one of those specified in Part 1 of Schedule 1, or one which "the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified." A similar definition exists for Northern Ireland (Sch.2/ Pt. 2). For crimes committed abroad, the test is whether they would be crimes in England and Wales, or Northern Ireland, or whether they are serious enough to be so treated (s.2).

Serious offences include (Sch. 1):

• Drug trafficking
• Human trafficking
• Arms trafficking
• Prostitution and Child sex
• Armed robbery
• Money laundering
• Fraud
• Tax evasion and revenue offences
• Corruption and bribery
• Blackmail
• Intellectual property offences
• Environmental crimes
• Attempting, conspiring, encouraging or assisting, or aiding or abetting such an offence.

Procedure

For an order to be valid, the subject must be represented at the hearing or served with notice (s.10). Third parties may make representations to the hearing if they would be affected by the order (s.9).

In England and Wales, where a person is convicted of a serious offence in the Crown Court, or committed for sentencing from the Magistrates' Court, the Crown Court can make an order (s.19).

The courts have wide powers to vary or discharge orders (ss.18-19, 20–22) and there is also a route of appeal from the Crown Court or High Court to the Court of Appeal by any party involved (ss.23-24).

A law enforcement agency may appoint authorised monitors to supervise compliance with the order and the court may order that the subject of an order pay the costs of the monitoring (ss.39-40).

Intentionally encouraging or assisting an offence

Section 44 creates the crime of:

• Doing an act capable of encouraging or assisting the commission of an offence; and
• Intending to encourage or assist its commission.

A person is not taken to have intended to encourage or assist an offence merely because such encouragement or assistance was a foreseeable consequence of his act. The offence is triable in the same manner, summarily or on indictment, as the anticipated offence (s.55(1)) and, on conviction, a person can be sentenced to the same penalty as applies to the anticipated offence (s.58).

Encouraging or assisting an offence believing it will be committed

Section 45 creates the crime of:

• Doing an act capable of encouraging or assisting the commission of an offence; and
• Believing that:
  • The offence will be committed; and
  • His act will encourage or assist its commission.

The offence is triable in the same manner, summarily or on indictment, as the anticipated offence (s.55(1)) and, on conviction, a person can be sentenced to the same penalty as applies to the anticipated offence (s.58). Professor Dennis J. Baker provides the most detailed analysis of these provisions. See Dennis J. Baker, Glanville Williams: Textbook of Criminal Law, (London: Sweet & Maxwell, 2015) at Chapter 20. In a recent article, Baker "tries to identify the limits of derivative liability and its alternatives. In this article, I provide a doctrinal and theoretical analysis of the new independent direct liability offenses found in section 44-46 of Britain’s Serious Crime Act 2007 to highlight how independent offenses punishing acts of assistance and encouragement are fairer than making accessories and perpetrators equally liable under the law of complicity. I also examine the conduct element for these offenses to determine whether it is apt for catching the sort of reckless encouragement that is often present in the joint enterprise (common purpose) complicity cases and conclude that it is. The main shortfall of the offenses found in the Serious Crime Act 2007 is that they do not cover reckless participation. I conclude that section 44 covers only intentional (inchoate) participation and that section 45 covers only oblique intentional (inchoate) participation. It is submitted that section 45 of the Act of 2007 should be supplemented with a section 45A offense criminalizing reckless (inchoate) participation. Section 45 is an independent offense that criminalizes personal wrongdoing and as it is not a form of derivative liability, but rather personal liability, it allows for fair labeling and proportionate punishment for the independent wrong involved in encouraging and assisting another to perpetrate a crime. Therefore, a variant of the section 45 offense with recklessness as its mental element would also allow for fair labeling and proportionate punishment." See Dennis J. Baker, "Conceptualizing Inchoate Complicity: The Normative and Doctrinal Case for Lessor Offenses as an Alternative to Complicity Liability," (2016) Southern California Interdisciplinary Law Journal, Vol. 25, No. 1.Available at SSRN: http://ssrn.com/abstract=2687398

Encouraging or assisting offences believing one or more will be committed

Section 46 creates the crime of:

• Doing an act capable of encouraging or assisting the commission of one or more of a number of offences; and
• Believing that:
  • One or more of those offences will be committed, but having no belief as to which; and
  • His act will encourage or assist the commission of one or more of them.

The offence is triable on indictment (s.55(2)) and, on conviction, a person can be sentenced to the maximum penalty of those applying to the anticipated offences (s.58).

Defences

It is a defence that a person acted reasonably, based on his knowledge or belief, considering the seriousness of the anticipated offence and the purpose and authority with which he acted (s.50). The burden of proof of such facts is on the defendant on the balance of probabilities.^[6]

Where an offence exists to protect a certain class of persons, such a person does not commit an offence under ss.44-46 if the anticipated offence would have been committed against him (s.51).