Encouraging the Continuation of a Pre-Existing Offence Under the Serious Crime Act 2007: Scott v DPP [2022] EWHC 91; [2022] 1 WLR 2231, Divisional Court

Between December 2019 and January 2020, Omar Scott (OS) made and received calls, and sent and received text messages, to and from a mobile phone that was in the possession of David Sika (DS), a prisoner in HMP Bristol. OS was charged with doing an act capable of encouraging or assisting the possession of an unauthorised phone in prison (an offence under s 40D of the Prison Act 1952, as amended), contrary to s 45 of the Serious Crime Act 2007 (the Act). The Crown case was that by making and receiving calls, and by sending and receiving texts, to and from DS's phone, OS was encouraging DS to possess the phone. OS appeared before District Judge Ross Johnson (the DJ) at Stratford Magistrates’ Court in April 2021. He was convicted and appealed, arguing that the DJ had misdirected himself by finding that there was an act ‘capable’ of encouraging the possession of a phone in prison, given that DS already had it before any of the calls or texts were made, sent or received.