Assisting Possession of Mobile Phone in Prison
On an appeal by way of Case Stated against the decision of a District Judge, the Court of Appeal was asked the following questions:
(i) Can an offence of encouraging or assisting the commission of an either way offence contrary to s45 Serious Crime Act 2007 apply in relation to the possession of a mobile phone in prison, when the phone was already in the possession of the principal offender before any conduct was carried out by the defendant? (ii) Was the District Judge wrong to conclude that the conduct of the defendant was capable of encouraging or assisting the offence of possession of a mobile phone in prison on the facts of the case? Omar Scott v Director of Public Prosecutions [2022] EWHC 91 (Admin) Fulford LJ, VP, Farbey J
Whilst remanded in custody at HMP Bristol from 30 November 2019, S was found to be in possession of a mobile phone on 22 January 2020 following a search of his cell.
On 21 April 2020 the police searched the appellant’s home and found an iPhone. He was arrested on suspicion of encouraging or assisting an either way offence. He answered “no comment” to all questions in interview.
S was an acquaintance of the appellant and knew he was on remand at HMP Bristol. He visited him there and was one of the appellant’s approved telephone contacts.
S’s telephone number had been stored in the appellant’s phone since 16 December 2019. Between 10 December 2019 and 11 January 2020, the appellant’s phone had contacted, or attempted to contact, S’s phone by calls and texts on 61 occasions.
Between the same dates S’s phone was used to contact or attempt to contact the appellant’s phone on 71 occasions.
The District Judge considered that the question under section 45 was whether the appellant’s communications with S’s phone were “capable of encouraging or assisting” the ongoing possession of the prison phone.
He found that S had retained possession of the phone in order to communicate with parties outside the prison on an unmonitored device. If nobody had answered or returned any calls or messages from the phone, S would have been discouraged from continuing with the possession of the phone.
There would have been no purpose in taking the ongoing risk of possession and it would have been a simple matter for him to relinquish possession.
The DJ found that, as the appellant was one of S’s contacts who had actively engaged in communication with the phone, the appellant’s actions were capable of encouraging S to continue to possess the phone in prison in order to carry on contact with the outside world.
The same would apply to each and every one of S’s contacts who actively engaged in communication with the prison phone. Each of the contacts was capable of encouraging the ongoing possession of the phone.
The appellant was sentenced to four months’ imprisonment but released on bail pending the outcome of the appeal.
Section 45 of the 2007 Act provided as follows: “Encouraging or assisting an offence believing it will be committed A person commits an offence if (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he believes (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission.”
Offences created by Part 2 of the Act expressly abolished the common law inchoate offence of inciting the commission of another offence and it was Parliament’s intention to remove an anomaly.
The offence of incitement could be committed where a person encouraged a principal to commit an offence that was not in the event committed.
By contrast, where a person assisted a principal to commit an offence, there was no criminal liability if the offence was not ultimately carried out.
New offences in Part 2 of the Act removed the distinction. A person may commit a Part 2 offence “whether or not any offence capable of being encouraged or assisted … is committed”.
As regards the mens rea of a section 45 offence, a person must believe that the offence that was capable of being encouraged or assisted would be committed and that his or her act would encourage or assist its commission.
Section 40D of the Prison Act 1952 provided (in so far as relevant): “(3A) A person who, without authorisation, is in possession of any of the items specified in subsection (3B) inside a prison is guilty of an offence. (3B) The items referred to in subsection (3A) are (a) a device capable of transmitting or receiving images, sounds or information by electronic communications (including a mobile telephone) …”
The concept of unlawful possession as part of the actus reus of a crime extended to an ongoing course of conduct.
A person who took and kept hold of a firearm (for instance) did not cease to possess it because time passed: the possession of the firearm was an ongoing act which may give rise to criminal liability at any time that was within the timeframe of the indictment.[1] The same applied to the possession of a phone under section 40D of the Prison Act.
The actus reus in section 45(a) was doing an act “capable” of encouraging or assisting. The word “capable” had a prospective meaning. The question was whether the act may at some future point encourage or assist the commission of an offence, rather than whether the act was already providing encouragement or assistance.
It did not follow that section 45 could not apply after the commencement of the principal’s offending. That would not operate even as a matter of logic and free from any consideration of Part 2.
However, it was plain from Part 2 that Parliament intended no such limitation.
Section 47(8) was to be read as referring – even on a narrow interpretation – to the continuation of an act of the principal. That reading was consistent with the view of the court in Sadique[2] which held that section 47(8) was limited to the act of the principal.
It followed that, reading section 45 in accordance with section 47(8), the “commission of an offence” in section 45(a) included not only the doing of an act but also the continuation of an act by the principal.
In short, section 47(8) extended the actus reus in section 45(a) to encouraging or assisting the continuation of a criminal act that had already begun. By parity of reasoning, section 67 extended the actus reus in section 45 to encouraging or assisting a course of conduct by the principal.
For those reasons, section 45 was apt to cover the encouragement or assistance of the principal’s ongoing criminality.
The offence of possession of a prison phone was a continuing offence. The concept of possession did not relate only to the initial act or circumstances in which the person first came into possession of a phone. It extended to the continued knowing control of the phone and involved continuing conduct on the part of the person in possession.
The District Judge considered with care the provisions of section 45. He was sure on the evidence before him that the appellant’s actions were capable of encouraging the ongoing possession of the phone. He distinguished between acts capable of encouraging or assisting an offence and actual encouragement or assistance, taking only the former into consideration.
He was sure that the appellant’s actions were capable of encouraging S to continue to possess the phone in prison in order to maintain contact with the outside world. On the facts of the case he was entitled to reach that conclusion.
A person who did not believe that an offence would be committed or who did not believe that his or her phone contact would encourage or assist its commission would be not guilty.
The Crown’s burden of proving the requisite beliefs, together with the additional burden of proving the mental elements in section 47(5) represented an adequate touchstone for culpability.
It may mean, for instance, that a worried mother who was unaware of prison life but wanted to pass urgent news to her son may avoid being criminalised for a single phone call.
In the present case it was open to the DJ to find on the evidence that the appellant’s communications were capable of encouraging the commission of a criminal offence and that he satisfied the requisite mental element.
There was no reason to interfere and the appeal was dismissed.
You can listen to this case summary on the Baines Law Podcast Omar Scott v Director of Public Prosecutions [2022] EWHC 91 which can be accessed on the Podcast Page of this Website at Podcast – Barry Baines
[1] R v Styles [2015] EWCA Crim 161, para 32 ; see also Blackstone’s Criminal Practice 2022, para A1.8
[2] R v Sadique [2011] EWCA Crim 2872, [2012] 1 WLR 1700