Omar Scott v Director of Public Prosecutions

An offence under section 45 of the Serious Crime Act 2007 may be committed by an act capable of encouraging or assisting the continuation of a principal offence that has already begun. The offence is not overtaken by the principal offender’s initial conduct. Unauthorised possession of a mobile phone in prison is a continuing offence, involving continuing knowing control. The actus reus is prospective: the act must be capable of encouraging or assisting future continuation, but actual encouragement or assistance need not be proved. Liability remains controlled by the statutory mens rea requirements, including belief that the offence will be committed and that the defendant’s act will encourage or assist it.

The appellant was convicted by a District Judge sitting at Stratford Magistrates’ Court of encouraging or assisting an offence believing it would be committed, contrary to section 45 of the Serious Crime Act 2007. The alleged principal offence was possession by a prisoner of an unauthorised mobile phone, contrary to section 40D(3A) of the Prison Act 1952.

The appellant had communicated repeatedly with the prisoner’s phone after the prisoner had acquired it. The Case Stated raised whether section 45 could apply where the phone was already possessed before the defendant’s conduct, and whether the communications were capable of encouraging or assisting the possession offence.

1. Appeal dismissed. The court answered the first question in the affirmative and the second in the negative. The District Judge had not erred in law.
2. The word capable in section 45(a) has a prospective meaning. The relevant question is whether the defendant’s act may at a future point encourage or assist the commission of the offence. Section 45 does not, however, require the principal offence to begin only after the defendant’s act.
3. Section 47(8) provides that doing an act includes continuing an act that has already begun. Read with section 45, it extends the statutory actus reus to encouraging or assisting the continuation of a principal criminal act. Section 67 likewise extends the provision to a principal’s course of conduct.
4. Unauthorised possession of a prison mobile phone is a continuing offence. Possession includes continuing knowing control, rather than only the moment when the phone first comes into the prisoner’s possession. An act capable of encouraging that continuing conduct may therefore support liability under section 45.
5. The District Judge was entitled to find that the appellant’s communications were capable of encouraging the prisoner to continue possessing the phone to maintain contact with the outside world. The issue was capability, not proof that the communications actually encouraged possession or that possession would otherwise have ceased.
6. The interpretation does not criminalise every person who contacts an unauthorised prison phone. The prosecution must prove the beliefs required by section 45(b), together with the additional mental elements in section 47(5). Those requirements provide the necessary culpability threshold.

• Stratford Magistrates’ Court: The District Judge convicted the appellant on 27 April 2021 and later sentenced him to four months’ imprisonment.
• High Court (Queen’s Bench Division), Divisional Court: The appeal by Case Stated was dismissed. Questions 1 and 2 were answered affirmatively and negatively respectively.