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Smith, Hogan, and Ormerod's Criminal Law

Smith, Hogan, and Ormerod's Criminal Law (16th edn)

David Ormerod CBE, QC (Hon) and Karl Laird
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date: 30 January 2023

p. 2487. Assistance after the offencefree

p. 2487. Assistance after the offencefree

  • David OrmerodDavid OrmerodProfessor of Criminal Justice, University College London, Barrister, Bencher of Middle Temple, Door Tenant at Red Lion Chambers
  •  and Karl LairdKarl LairdStipendiary Lecturer and Tutor in Law, St Edmund Hall, Oxford, Barrister, 6KBW College Hill

Abstract

This chapter examines the statutory offences under the Criminal Law Act 1967 of assisting an offender. Examples include hiding a principal offender, helping a principal offender to avoid arrest or to abscond from bail, lying to the police to protect the principal offender from investigation and prosecution, hiding the weapon used by the principal offender in committing the assault/robbery and washing clothes worn by the principal offender to obstruct any potential forensic examination. In addition to the fact that the offender must have committed a relevant offence, another element in the actus reus where an offender is charged with impeding the apprehension or prosecution of the offender is that the accused must have done ‘any act’ with the appropriate intent. An attempt to commit this offence does not amount to criminal liability.

7.1 Impeding the apprehension or prosecution of offenders

Someone who assists or encourages another to commit a crime may be liable as a secondary party under the common law and s 8 of the Accessories and Abettors Act 1861 as discussed in the previous chapter. Someone who does acts capable of assisting or encouraging a crime by another may be liable under Part 2 of the Serious Crime Act 2007 (as discussed in Ch 11). There are also specific statutory offences for assisting and encouraging in various contexts, including notably terrorism.1 In this chapter, we focus on the specific offences for those who offer assistance to an offender after the commission of his offence.2

The general offence is found in s 4 of the Criminal Law Act 1967:

(1)

Where a person has committed a relevant offence,[3] any other person who, knowing or believing him to be guilty of the offence or of some other relevant offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence.

(1A)

p. 249 In this section and section 5 below, ‘relevant offence’ means—

(a)

an offence for which the sentence is fixed by law,

(b)

an offence for which a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates’ Courts Act 1980).

(2)

If on the trial of an indictment for a relevant offence the jury are satisfied that the offence charged (or some other offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under subsection (1) above of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).

(3)

A person committing an offence under subsection (1) above with intent to impede another person’s apprehension or prosecution shall on conviction on indictment be liable to imprisonment according to the gravity of the other person’s offence, as follows:—

(a)

if that offence is one for which the sentence is fixed by law, he shall be liable to imprisonment for not more than ten years;

(b)

if it is one for which a person (not previously convicted) may be sentenced to imprisonment for a term of fourteen years, he shall be liable to imprisonment for not more than seven years;

(c)

if it is not one included above but is one for which a person (not previously convicted) may be sentenced to imprisonment for a term of ten years, he shall be liable to imprisonment for not more than five years;

(d)

in any other case, he shall be liable to imprisonment for not more than three years.

(4)

No proceedings shall be instituted for an offence under subsection (1) above except by or with the consent of the Director of Public Prosecutions.4

The effect of the decision in Courtie5 is that the section creates four offences, punishable with ten, seven, five and three years’ imprisonment respectively.

The CPS suggests that examples of the type of conduct appropriate for a charge of assisting an offender (the ‘principal offender’, ‘O’ in this chapter) include: hiding a principal offender; otherwise assisting a principal offender to avoid arrest; assisting a principal offender to abscond from bail; lying to the police to protect principal offenders from investigation and prosecution; hiding the weapon used in an assault/robbery; and washing clothes worn by a principal offender to obstruct any potential scientific examination.6 In some instances, those who have assisted offenders are charged with perverting the course of justice rather than s 4.7 Indeed, in Begum the Court of Appeal observed that assisting an offender to flee p. 250the country shares characteristics with perverting the course of justice as both strike at the heart of the justice system.8

7.1.1 Actus reus

There are two elements in the actus reus where D is charged with impeding the apprehension or prosecution of an offender, O: (a) a relevant offence must have been committed by the offender; and (b) D must have done ‘any act’ with the appropriate intent. No one may be convicted of an attempt to commit this offence.9

7.1.1.1 Proof of a relevant offence

The relevant offence alleged to have been committed by O must be specified in the indictment.10 If, however, it turns out that O was not guilty of the specified offence, D may still be convicted if O was guilty of another relevant offence for which O might have been convicted on an indictment for the original specified offence.11 So, for example, if it is alleged that O committed murder and it transpires at D’s trial for an offence under s 4 that O was not guilty of murder but was guilty of manslaughter, because O could, at his trial for murder, have been convicted of that offence, D may be convicted of assisting under s 4. It is not necessary to direct the jury to find what offence D thought O had committed, though this may be a material factor in the imposition of sentence.12

It is only necessary to prove that the offence was committed, not that O was guilty.13 If O is tried first, it is immaterial that O is acquitted if it can be proved at D’s later trial that O was guilty. Even where O and D are tried together, O’s acquittal should not, in principle, be conclusive if it can be proved, as against D, that O committed the offence.14 However, O’s conviction is presumptive evidence that he did commit the offence: PACE 1984, s 74. If D is tried first, it is not necessary to prove O’s guilt, merely that the offence was committed. In Zaman,15 D pleaded guilty before O was even tried. O was subsequently acquitted. D appealed claiming that there could be no offence under s 4. The Court of Appeal rightly rejected that argument. The court held that it was immaterial whether D ‘knew’ or merely ‘believed’ O had committed the offence. With respect, it is submitted that a distinction may need to be drawn in practice between cases of belief and knowledge. In a case where D merely believes O has committed the offence, D’s plea does not establish that O has committed the offence. Whereas, in a case where D knows16 that O has committed the offence, the plea can fulfil the prosecution’s obligation to establish that the offence was committed. Perhaps D ought not to have pleaded at all unless he knew (and not merely believed) that O had committed the offence.

7.1.1.2p. 251 An act of assistance

Once O’s relevant offence has been proved, the remaining element in D’s actus reus—‘any act’—is almost unlimited.17 There must be an act—an omission will not suffice18—but it need not be an act having a natural tendency to impede the apprehension or prosecution of an offender. Where the act does not have such a tendency, however, it will be difficult to prove the intent, in the absence of an admission. Common examples of sufficient ‘acts’ will be concealing the offender, providing him with transport, food or money to enable him to escape, or destroying evidence against him. The mere making of an oral offer of accommodation may be a sufficient act for these purposes.19 It does not matter that D regrets his acts and persuades O to turn himself in; the offence is committed.20

When drafting this offence, the Criminal Law Revision Committee (CLRC),21 observed that, ‘The requirement that there should be an attempt to “impede” a prosecution will exclude mere persuasion not to prosecute.’ However, there is no doubt that words can be a sufficient act; so that the offence would be committed by intentionally misdirecting police who were pursuing an offender, or by making a false statement to the police.22

An act done through an agent would be sufficient. Indeed, when done with intent to impede, the mere authorization of the agent would be a sufficient act to constitute the offence, though the agent never acted on it.

7.1.1.3 Relationship to the offence of escape

It is clearly not an offence under s 4 to enable a convicted offender (as opposed to one awaiting trial) to escape from gaol; but this is not important as such acts will amount to other offences.23 Whether it is an offence to assist an offender who has escaped to remain at large depends on the interpretation of ‘apprehension’ in s 4. Does it extend beyond its obvious meaning of apprehension with a view to prosecution and include the re-arrest of the escaped convicted prisoner? There seems to be no reason why it should not be so interpreted.

7.1.2 Mens rea

There are two elements in the mens rea: (a) D must know or believe the offender to be guilty of the relevant offence which he had actually committed, or some other relevant offence; and (b) D must intend to impede the apprehension or prosecution of the offender.

7.1.2.1p. 252 Know or believe

‘Know’ presumably means hold a true belief.24 Belief is, presumably, to be construed as elsewhere, for example as in handling stolen goods; if so it adds little to ‘knowing’.25 If the mens rea was limited to knowledge alone, it would be difficult to prove. Is wilful blindness sufficient? If D has a mere suspicion that O is an offender and, shutting his eyes to an obvious means of knowledge, assists O, he can hardly be said to ‘believe’ in O’s guilt. Arguably, the subsection is unduly narrow in this respect.26 In Sherif,27 dealing with the offence under the Terrorism Act 2000, S was held, under s 38B, to have known or believed that the London bombings of 21 July 2005 were to take place and failed to give information. The judge was entitled in his direction to make it plain ‘that it was not sufficient for the prosecution to establish that a defendant had closed his eyes, but that the jury was entitled to conclude, if satisfied that he had deliberately closed his eyes to the obvious because he did not wish to be told the truth, that that fact was capable of being evidence to support a conclusion that that defendant either knew or believed the fact in question’.

Where the allegation is that D knew or believed of ‘… the offence’—the relevant offence which has actually been committed—the mens rea is probably governed both by ‘knowing’ and ‘believing’. Where the allegation is that the knowledge or belief relates to some ‘other relevant offence’, the issue must be governed only by ‘believing’ since, ex hypothesi, the offence has not been committed and, therefore, D cannot ‘know’ it has.

7.1.2.2 Knowledge or belief as to what?

In order to know or believe that a relevant offence has been committed, D need not know the law. It will be enough that he believes in the existence of facts which, whether D knows it or not, amount in law to a relevant offence.28 His ignorance of the law cannot afford a defence.

It is immaterial that D is unaware of O’s identity.29 What if he makes a mistake of identity? If D thinks he sees R committing a relevant offence and acts, intending to impede his apprehension or prosecution, is D guilty under s 4 if he was in fact witnessing O commit the crime?

Perhaps the question should be answered by making a distinction. If D does an act which he intends to assist the person whom he in fact observed, his mistake of identity should be immaterial. For example, D sends a police officer, who is pursuing the offender, in the wrong direction. Here D knows that the person he is assisting has committed a relevant offence, and that person has in fact done so. Suppose, on the other hand, that D fabricates evidence the following day so as to provide an alibi for R and this evidence could not, and was of course not, intended to assist O, of whom D has never heard. Here he does not intend to assist the person whom he in fact observed. An indictment in these circumstances charging D with doing an act, knowing O to be guilty of a relevant offence and with intent to impede his prosecution, is plainly bad. If R has never committed a relevant offence, it would seem that D is not guilty under the section;30 if R once did commit a relevant offence, then D is guilty unless the limitation tentatively suggested in the previous paragraph be imposed.

7.1.2.3p. 253 Some other relevant offence

‘Some other relevant offence’ must refer to an offence which O has not committed, for otherwise the words are redundant.31 If D sees O running from a bank brandishing a gun and thinks O committed a robbery and D acts with intent to conceal this, D will be guilty, though O had in fact committed a murder and not a robbery. This is obviously correct, where, as in this example, D’s belief relates to the transaction which constituted the actual offence. Suppose, however, that unknown to D, O committed murder last week. D believes, wrongly, that O committed bigamy two years ago. If D does an act with intent to impede O’s prosecution for bigamy—such as burning O’s letters—it would seem very odd indeed that D should be liable only because O committed murder last week—the murder has nothing to do with the case. This suggests that the offence D supposes O to have committed must arise from the same transaction as the actual offence (and, undoubtedly, this will normally be the case) but to so hold would require the imposition of some limitation on the express words of the section.32

7.1.2.4 With intent

D’s act must be done with intent to impede the offender’s apprehension or prosecution. It does not matter that D’s act done with intent proves to be of no assistance to O whatsoever. It must be proved that D’s purpose was to impede; it is not enough that D knew his act would certainly impede if that was not his object or one of his objects; that is, a ‘direct’ and not merely an ‘oblique’ intention is required.33 This, at least, seems to be the CLRC’s view of the clause which became s 4. Discussing the case of harbouring, the CLRC wrote:

If the harbouring is done with the object of impeding apprehension or prosecution … it will be within the offence; if it is done merely by way of providing or continuing to provide the criminal with accommodation in the ordinary way, it will not; and juries will be able to tell the difference.34

If this is the correct interpretation of the section, then a handler of stolen goods will not be guilty of an offence under s 4, even where he knows that his conduct has the effect of impeding the apprehension or prosecution of the thief, if that is not his object or purpose.35 Nor is D guilty under s 4 if, by acts done with the object of avoiding his own arrest or prosecution, he knowingly impedes the arrest or prosecution of another.36 Where there is prima facie evidence of the necessary intent, it is for D to lay a foundation for a defence by introducing evidence that his sole purpose was of a different character. In the absence of such evidence, there is no duty to direct a jury to consider whether D might have had a different intent.37 If D has the dual object of saving himself and the other from arrest or prosecution then, no doubt, he is guilty.

7.1.2.5 Lawful authority

Even though the act is done with intent to impede, it is not an offence if there is ‘lawful authority or reasonable excuse’ for it. According to the CLRC:38

The exception for ‘lawful authority’ will cover an executive decision against a prosecution, and that for ‘reasonable excuse’ will avoid extending the offence to acts such as destroying the evidence of an offence (for example a worthless cheque) in pursuance of a legitimate agreement to refrain from prosecuting in consideration of the making good of loss caused by that offence.

p. 254It is possible that the exception may have some application outside this situation.39 As with the Prevention of Crime Act 1953,40 it enables the courts to afford a defence in circumstances in which they think it reasonable to do so.

7.1.3 The sentence

Section 4(3)41 provides for a sliding scale of sentences which is related to the relevant offence which has actually been committed. Where D believes that some other relevant offence has been committed, the punishment to which he is liable is fixed according to the actus reus, not according to the mens rea. If D acts with intent to impede the apprehension of O whom he believes to have committed malicious wounding42 (maximum, five years), he is liable to three years’ imprisonment if his belief is correct; but if O has in fact committed murder, he is liable to ten years.

It is clear that the relevant offence by O which fixes the maximum sentence for D under s 4 must have been committed when the act of impeding by D takes place. So, for example, if D rightly believes O to be guilty of malicious wounding, and D acts to impede his arrest, D is liable to only three years. If, subsequently, O’s victim, V, dies, and O becomes guilty of murder, D remains liable to three not ten years’ imprisonment.

7.2 Compounding an offence

Section 5(1) of the Criminal Law Act 1967 enacts an offence, triable either way, as follows:

Where a person has committed a relevant offence,[43] any other person who, knowing or believing that the offence or some other relevant offence has been committed, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss or injury caused by the offence, or the making of reasonable compensation for that loss or injury, shall be liable on conviction on indictment to imprisonment for not more than two years.

Proceedings may not be instituted without the consent of the DPP.44

Historically, there were two much wider common law misdemeanours: ‘compounding a felony’45 and ‘misprision of felony’.46 The former consisted in an agreement for consideration not to prosecute, or to impede a prosecution for, a felony. The latter consisted simply in an omission to report a felony to the police. Section 5 replaces both. Section 5 is narrower than misprision in that the offence is committed only if D accepts or agrees to accept consideration for not disclosing the information relating to the relevant offence. It is narrower than compounding in that it is not now criminal to accept or agree to accept consideration for not disclosing information relating to the relevant offence, if the consideration is no more than the making good of the loss or injury caused by the offence or the making of reasonable compensation for that loss or injury. No one may be convicted of attempting to commit an offence under s 5(1).47

7.2.1p. 255 Actus reus

There are two elements in the actus reus: (a) a relevant offence must actually have been committed; and (b) D must accept or agree to accept consideration for not disclosing information which he knows or believes to be material.

The offence extends to all relevant offences. The limit on the scope of s 5 is provided by s 5(5): ‘The compounding of an offence other than treason shall not be an offence otherwise than under this section.’ D commits no offence by agreeing to accept any consideration for not prosecuting a non-relevant offence, though whether as a matter of public policy the resulting contract is enforceable is another matter.

The offence is committed only where D ‘accepts or agrees to accept’ the consideration. The section envisages an offer being made to D; if the offer comes from D, then he might also be guilty of the more serious offence of blackmail.48 Consideration presumably bears much the same meaning as in the law of contract and extends to money, goods, services or any act or forbearance.

7.2.2 Mens rea

There are two elements in the mens rea. It must be proved that: (a) D knew or believed that a relevant offence had been committed; and (b) D intended to accept or to agree to accept consideration other than the making good of loss or the making of reasonable compensation.

7.2.2.1 Knowledge or belief

These terms should be construed in the same manner as in s 4.

7.2.2.2 Knowledge or belief as to what?

Where D’s knowledge or belief relates to the relevant offence (A) which has actually been committed, the application of the section seems quite straightforward. But D’s belief may relate to some other relevant offence (B) which, ex hypothesi, has not been committed. Here D’s acceptance, or agreement to accept consideration, must relate to the offence B which D believes to have been committed and thus not to the offence which has actually been committed since they are different. Under this section, D’s belief need not be—as, under s 4, it probably must49—that a relevant offence has been committed by the same person who has in fact committed such an offence. If D wrongly supposes that he has seen a relevant offence committed by R and accepts consideration for not disclosing what he saw, he will be guilty if, in fact, he saw O committing a relevant offence.

The argument advanced in connection with s 4, that D’s belief must relate to the transaction which resulted in the actual offence, is much stronger in relation to s 5. If D wrongly supposes that R has committed a relevant offence and accepts consideration for not disclosing that fact, his guilt can hardly be established by proving that some time, somewhere, someone committed a relevant offence—for example, that Harold Shipman committed murder. The offence which D supposes to have been committed must have something to do with the offence which has actually been committed. The most obvious point of connection is that the real and the supposed offence must both arise out of the same transaction. An alternative view might be that it is sufficient if either (a) the two offences arise out of the same transaction or (b) they both relate to the same person. Unknown to D, O committed murder last week. D believes, wrongly, that O committed bigamy two years ago. O offers money to D ‘to keep his mouth shut’. D, believing that O is talking about the bigamy, p. 256accepts. According to the first view put above, D is not guilty; according to the alternative view, he is. It is submitted that the first view is better; according to the second, D’s liability depends entirely on chance.

If D’s acceptance of consideration relates to the transaction in question, then it seems that it will be immaterial that he is mistaken as to both (a) the nature of the relevant offence and (b) the identity of the perpetrator. He supposes he saw R perpetrating a robbery. Actually, he saw O committing murder. If he accepts consideration for not disclosing what he saw he should be guilty.

The CLRC stated:50

the offence will not apply to a person who refrains from giving information because he does not think it right that the offender should be prosecuted or because of a promise of reparation by the offender. It would be difficult to justify making the offence apply to those cases.

It is difficult to see, however, how it can be a defence for D simply to say that he did not ‘think it right that the offender should be prosecuted’, if he has accepted consideration for not disclosing information. Even if the court believes D’s views as to the impropriety of the contemplated prosecution, he still falls within the express words of the section. He could be acquitted only if the section were interpreted so as to require that D’s object or motive be the acquisition of the consideration. As we have seen,51 on a charge under s 4 it is probable that a purpose of impeding must be proved, but this may be justified by giving a narrow meaning to the ulterior intent specified in that section. No ulterior intent is specified in s 5 and, consequently, it is difficult to see how the section can be limited in the same way.

7.2.2.3 Relationship with advertising for return of stolen goods

It may seem a little surprising that a specific offence of advertising rewards for the return of goods stolen or lost has been retained.52 Section 23 of the Theft Act provides:

Where any public advertisement of a reward for the return of any goods which have been stolen or lost uses any words to the effect that no questions will be asked, or that the person producing the goods will be safe from apprehension or inquiry, or that any money paid for the purchase of the goods or advanced by way of loan on them will be repaid, the person advertising the reward and any person who prints or publishes the advertisement shall on summary conviction be liable to a fine not exceeding level 3 on the standard scale.

Insofar as an advertisement states that ‘no questions will be asked’ this is only proposing what is perfectly lawful under s 5(1) of the Criminal Law Act.53 It is not clear why this should be an offence because it is done through a public advertisement. Nor is it clear why it should be an offence to offer a reward for the return of stolen goods, even their return by the thief. The promise to pay the reward might be unenforceable for lack of consideration but, if it were actually paid, there would be nothing unlawful about that. Possibly the theory is that, if such advertisements were common, theft might be encouraged in that thieves would have an easy and safe way of disposing of the stolen goods for reward. This cannot apply to an advertisement addressed to the bona fide purchaser offering to recompense him if he will return the stolen goods; this seems quite a reasonable thing to do, especially since the bona fide purchaser commits no offence by retaining the goods for himself.54

p. 257The section creates what the courts sometimes call a ‘quasi-criminal’ offence, not requiring mens rea. So, the advertising manager of a company was liable for the publication of an advertisement which he had not read.55

‘Stolen’ bears the wide meaning given to that word by s 24(4) of the Theft Act so the bona fide purchaser may indeed have become the absolute owner of the goods where, for example, they have been obtained by fraud and the property in the goods passed.

7.3 Refusal to aid a constable

It is a common law offence for D to refuse to go to the aid of a constable who, on seeing a breach of the peace, calls on D to assist him in restoring the peace.56 A ticket collector was held to be guilty of the offence when he failed to come to the assistance of a police officer struggling with a thief. His defence that he had obeyed instructions not to leave his post was not accepted.57 There must be a reasonable necessity for the constable to request assistance. It is no defence that D’s aid would have been ineffective. So where a constable requested D to assist him in suppressing a breach of the peace among four or five hundred people at a prize-fight, Alderson B directed that D’s refusal was an offence.58 It seems that it was no answer that he had his horses to take care of. Alderson B59 recognized that physical impossibility or a lawful excuse would be an answer; but it is not clear what would constitute ‘lawful excuse’. Is the citizen required to act where there would be a grave risk of death or serious injury? Surely the State cannot criminalize D for a failure to put his life on the line?

By s 65(3) of the Serious Crime Act 2007 a person does not perform an act capable of assisting or encouraging crime by the offender merely because he fails to respond to a constable’s request for assistance in preventing a breach of the peace.

7.4 Reform

In the wake of scandals involving the failure by schools and other public bodies to report systemic child abuse, there were calls from a number of quarters to introduce into English law a duty to report child abuse and criminal offences for failing to do so.60 Sir Keir Starmer QC, the former DPP, stated: ‘If you’re in a position of authority or responsibility in relation to children, and you have cause to believe that a child has been abused, or is about to be abused, you really ought to do something about it.’61 Such an offence exists in all the jurisdictions in the United States and applies to those who may come into professional contact with children.62 In his analysis of such offences,63 Andrew Ashworth states that their justification is to improve the protection afforded to victims. As Ashworth also points out, however, the problem with offences such as these is that, at least in the familial context, it p. 258may be the case that the individual who has failed to discharge the duty is herself a victim of abuse. Ashworth states that this does not necessarily militate against enacting offences such as these, but does serve to emphasize the importance of sensitivity in the familial context, especially given the possibility for potential gendered unfairness.

The most intractable problem with offences of failure to report generally, according to Ashworth, is definition. How far should the duty extend? This difficulty would, however, be overcome if the duty to report was limited to sexual abuse against children and, perhaps, only extended to those who occupy a duty of care. It remains to be seen whether such offences will be enacted more widely in England and Wales. Note that s 5B of the Female Genital Mutilation Act 2003 imposes duties on health-care professionals and teachers (and social workers in Wales) to notify the police of acts of female genital mutilation that they discover to have been carried out.64 Failure to make the required notification is not, however, an offence.

Further reading

  • A Ashworth, Positive Obligations in Criminal Law
  • KJM Smith, A Modern Treatise on the Law of Criminal Complicity
  • Notes

    • 1 Similar offences are provided for in specific contexts, including the wide offences of failing to disclose information related to terrorism: s 38B(1)(B) and s 38B(2) of the Terrorism Act 2000. See C Walker, ‘Conscripting the Public in Terrorism Policing: Towards Safer Communities or a Police State?’ [2010] Crim LR 441, and on the relationship with s 4 see Girma [2009] EWCA Crim 912; Sherif [2008] EWCA Crim 2653. A defendant can be charged with both offences, see Abdurahman [2019] EWCA Crim 2239.

    • 2 G Williams, ‘Evading Justice’ [1975] Crim LR 430; KJM Smith, A Modern Treatise on Complicity (1991) Ch 1.

    • 3 The Serious Organised Crime and Police Act 2005 abolished the concept of ‘arrestable offence’; and in this context replaced it with the term ‘relevant offence’.

    • 4 Consent may be granted after charge but must be before proceedings commence. Consent must be obtained before proceedings are started by way of summons. In Walker [2016] EWCA Crim 751, Treacy LJ concluded that as matter of statutory construction, if the DPP institutes the proceedings the requirements of the subsection are satisfied and there is no need for a separate consent to be given. Consent is only required if some person other than the DPP, such as the police, institutes the criminal proceedings.

    • 5 See p 32. That is, if the maximum sentence differs depending on how the crime is committed, each form of offence with a different maximum is a separate offence.

    • 6 Charging Standard for Public Justice Offences: www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard/.

    • 7 On which see SM Edwards, ‘Perjury and Perverting the Course of Justice Considered’ [2003] Crim LR 525. The CPS suggests that perverting the course of justice should be considered when: the assisting is aimed at preventing or hindering the trial process (as opposed to the arrest or apprehension of an accused); the facts are so serious that the court’s sentencing powers for the statutory offence are considered inadequate; admissible evidence of the principal offence is lacking: Charging Standard for Public Justice Offences. Cf T [2011] EWCA Crim 729.

    • 8 [2019] EWCA Crim 323, [27].

    • 9 Criminal Attempts Act 1981, s 1(4)(c).

    • 10 Presumably this can include O’s liability for secondary or inchoate offences.

    • 11 Criminal Law Act 1967, s 6(3); Morgan [1972] 1 QB 436. It is unclear whether the same principle is applicable to other provisions allowing conviction of offences other than that charged. NB: n 5.

    • 12 ibid.

    • 13 In Saunders [2011] EWCA Crim 1571, D’s conviction was quashed because the judge had failed to direct the jury as to the elements of the relevant offences.

    • 14 cf Shannon [1975] AC 717; Donald (1986) 83 Cr App R 49; G Williams [1975] Crim LR 430 at 432. On the use of an offender’s incriminating statements at a joint trial, see Hayter [2005] UKHL 6 and for their use by the Crown in a subsequent trial, see Y [2008] EWCA Crim 10; cf Girma, n 1.

    • 15 [2010] EWCA Crim 209, citing with approval this paragraph in the 12th edn. See further commentary at [2010] Crim LR 574; see also Saunders [2011] EWCA Crim 1571.

    • 16 ie had belief of a true fact: Saik [2006] UKHL 18.

    • 17 For discussion of the broader question of when citizens should have a duty to report offences, see A Ashworth, Positive Obligations in Criminal Law (2013) 60–5 and A Ashworth and L Zedner, Preventative Justice (2014) 100–1. For discussion of a citizen’s general duty to disclose, see S Wallerstein, ‘On the Legitimacy of Imposing Direct and Indirect Obligations to Disclose Information on Non-Suspects’ in GR Sullivan and IH Dennis (eds), Seeking Security, Pre-Empting the Commission of Criminal Harms (2012) 37.

    • 18 cf the offence under s 38B of the Terrorism Act 2000 whereby a person may commit the offence through total inactivity, eg by not answering police questions or by not volunteering information.

    • 19 Sherif [2008] EWCA Crim 2693.

    • 20 That is a matter of mitigation in sentence: Roberts [2008] EWCA Crim 59; Robinson [2007] EWCA Crim 3120, [2008] 2 Cr App R (S) 201.

    • 21 Cmnd 2659, para 28.

    • 22 This would amount to other offences as well. See Law Commission, Offences Relating to Interference with the Course of Justice (1979), Law Com No 96, HC Paper No 213 (Session 1979/80) Pt III.

    • 23 Prison breaking, escape and rescue are offences at common law. See the 6th edn of this book, at Ch 19.3.

    • 24 Saik [2006] UKHL 18.

    • 25 Ismail [1977] Crim LR 557; Grainge [1974] 1 All ER 928; Griffiths (1974) 60 Cr App R 14; see p 1089.

    • 26 See p 253.

    • 27 [2008] EWCA Crim 2653, [27].

    • 28 cf Sykes v DPP [1962] AC 528 at 563.

    • 29 Brindley [1971] 2 QB 300.

    • 30 Nor could D be convicted of an attempt to commit the offence. See Criminal Attempts Act 1981, s 1(4)(c), n 9; for discussion of the offence as a specific form of preparatory offence, see Duff, Answering for Crime, 160.

    • 31 NB: p 252.

    • 32 cf the discussion of s 5, p 254.

    • 33 See pp 93–100.

    • 34 Cmnd 2659, para 30.

    • 35 Andrews and Craig [1962] 3 All ER 961n.

    • 36 Jones [1949] 1 KB 194.

    • 37 Brindley [1971] 2 QB 300 at 304.

    • 38 Cmnd 2659, para 28.

    • 39 Would a spouse have a reasonable excuse for assisting their spouse? See PJ Pace, ‘“Impeding Arrest”: A Wife’s Right as a Spouse?’ [1978] Crim LR 82. According to Lee Shek Ching v R [1986] LRC (Crim) 718 (Hong Kong, CA), 1985, No 53, being O’s wife is not, as such, a reasonable excuse. See T [2011] EWCA Crim 729.

    • 40 See Ch 34.

    • 41 See p 249.

    • 42 See p 724.

    • 43 The Serious Organised Crime and Police Act 2005, Sch 7, replaced ‘arrestable offence’ with ‘relevant offence’.

    • 44 Section 5(3).

    • 45 G Williams [1975] Crim LR 430.

    • 46 See the 1st edn of this book, at pp 539–44.

    • 47 Criminal Attempts Act 1981, s 1(4)(c), n 9.

    • 48 See Ch 24.

    • 49 See p 252.

    • 50 Cmnd 2659, para 41.

    • 51 See p 253.

    • 52 The section replaced the Larceny Act 1861, s 102 which provided for a penalty of £50 recoverable by a common informer. The fine was increased to £100 by the Common Informers Act 1951. The CLRC hesitantly recommended retention ‘as advertisements of this kind may encourage dishonesty’: Eighth Report, para 144.

    • 53 See p 254.

    • 54 See p 1087.

    • 55 Denham v Scott (1983) 77 Cr App R 210.

    • 56 See the valuable article by D Nicholson, ‘The Citizen’s Duty to Assist the Police’ [1992] Crim LR 611.

    • 57 Waugh (1976) The Times, 1 Oct (Knightsbridge Crown Court).

    • 58 Brown (1841) Car & M 314. Cf Sherlock (1866) LR 1 CCR 20.

    • 59 In Brown, ibid.

    • 60 See the editorial at [2014] Crim LR 1. As Ashworth points out, if such an offence were to be created, it would need to be widely publicized so that citizens were aware they were under such a duty.

    • 61 www.bbc.co.uk/news/uk-24772777.

    • 62 SG Thompson, ‘The White-Collar Police Force: “Duty to Report” Statutes in Criminal Law Theory’ (2002) 11 William and Mary Bill of Rights Journal 3.

    • 63 A Ashworth, Positive Obligations in Criminal Law (2nd edn, 2015) 62–6.

    • 64 For further discussion, see K Cook, ‘Female Genital Mutilation in the UK Population: A Serious Crime’ (2016) 80 J Crim L 88.

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