R v Craig Simpson

An offence under section 46 of the Serious Crime Act 2007 concerns conduct capable of encouraging or assisting one or more offences where the defendant believes that one or more offences will be committed and that his act will assist or encourage them. The prosecution need not identify which offence the defendant believed would be committed. Where several offences are involved, the maximum penalty may reflect the most serious reference offence. Sentencing may consider guidelines for that offence and for other possible offences, while allowing for uncertainty in the defendant’s belief. An acquittal on a substantive offence limits the facts available to assess culpability but does not prevent consideration of a relevant sentencing guideline.

The appellant was acquitted at the Crown Court at Manchester of knowingly being concerned in the importation of cocaine. He was convicted under section 46 of the Serious Crime Act 2007 of encouraging or assisting offences involving prohibited or dutiable goods and was sentenced to eight years’ imprisonment.

He appealed against sentence, arguing that the jury might have convicted him only on the basis of assisting revenue offences. The central issue was whether the sentencing judge could consider the drug-offence guideline despite the acquittal on the substantive cocaine-importation count.

Appeal dismissed.

1. Section 46 of the Serious Crime Act 2007 creates a distinct offence directed at conduct intended to encourage or assist one or more offences. It is unnecessary to identify which offence, among the possible offences, the defendant believed would be committed. Section 47(4) permits proof by reference to acts which would amount to one or more of those offences. The court noted that this construction was recognised in R v Sadique [2013] 2 Cr.App.R 31.
2. Where a section 46 conviction is based on more than one reference offence, section 58 permits the maximum penalty applicable to the most serious offence. The sentencing court may therefore consider the guideline for the most serious possible offence and the guidelines for other offences which the defendant might have assisted. As explained and applied in R v Rowlands [2020] 1 Cr.App.R (S) 31, uncertainty about which offence would be committed may reduce culpability but does not confine the sentencing exercise to the least serious possibility.
3. The appellant’s conviction covered assistance in either the importation of prohibited goods, including drugs, or the importation of goods subject to duty. His acquittal on the cocaine-importation count meant that the judge had to recognise that he did not believe the offences concerned cocaine. It did not establish that he believed he was assisting only revenue offences. The judge was therefore entitled to consider both the drug and revenue guidelines.
4. In light of the scale and duration of the operation, the appellant’s significant role, previous convictions and limited mitigation, eight years’ imprisonment was not manifestly excessive. The court doubted that the sentence should be fixed within the revenue guideline’s Category 4 because the operation was in fact drug smuggling. Even on a revenue-offence approach, an upward adjustment would have been required.

1. Court of Appeal (Criminal Division): The sentence appeal was dismissed: [2023] EWCA Crim 734.
2. Crown Court at Manchester: The appellant was convicted on the encouraging-or-assisting count and sentenced to eight years’ imprisonment. He was acquitted of knowingly being concerned in the importation of cocaine.