Any Excuse for Certainty: English Perspectives on the Defence of ‘Reasonable Excuse’
| Author | Christopher J. Newman,Ben Middleton |
| Published date | 01 October 2010 |
| Date | 01 October 2010 |
| DOI | http://doi.org/10.1350/jcla.2010.74.5.659 |
| Subject Matter | Article |
English Perspectives on the
Defence of ‘Reasonable Excuse’
Christopher J. Newman* and Ben Middleton†
Abstract
This article examines the operation of the defence of reasonable
excuse within the English legal system through the prism of two distinct
offences—Terrorism Act 2000, s. 58 and Public Order Act 1986, s. 5. It is
contended that legislative ambiguity in the drafting of these provisions has
given the English judiciary excessive latitude in determining the scope of
this defence, which has led to dangerous uncertainty in this area. The
discussion draws upon recent jurisprudence in order to establish areas of
commonality and highlight areas of inconsistency in judicial application.
The authors conclude that legislative action by the UK Parliament is
required, otherwise there will continue to be no clear understanding as to
what constitutes a reasonable excuse within English law.
Keywords
Criminal law; Defences; Terrorism offences; Public
order; Reasonableness
At first instance, an elderly lay preacher from Bournemouth and a
young schizophrenic Islamic convert may appear to have little in com-
mon. They were, however, accused, charged and convicted by English
courts of committing different criminal offences for which they believed
they had a reasonable excuse. In neither case did the court accept the
excuses proffered and equally in neither case did the statute that they
had contravened provide any explanation for the phrase ‘reasonable
excuse’. Determining the ambit of this defence was therefore left to
the finders of fact at their respective trials. There are relatively few
offences in English law that afford the defendant the luxury of absolving
his hitherto criminal conduct with an excuse that is deemed to be
arbitrarily reasonable. That is not to say that there are not a myriad of
statutes which have been passed by Parliament incorporating the words
‘. . . without reasonable excuse’, as part of the offence itself.1 The
discussion below focuses on two offences (Public Order Act 1986, s. 5
(Harassment, alarm or distress); Terrorism Act 200, s. 58 (Collection of
information)) which have a slightly different construction, but have
* Senior Lecturer in Law, University of Sunderland; e-mail:
chris.newman@sunderland.ac.uk.
† Senior Lecturer in Law, University of Sunderland; e-mail:
ben.middleton@sunderland.ac.uk.
1 Statutory offences as diverse as the Gaming Act 1968, s. 43(3)(c), the Reserve
Forces Act 1996, s. 95 and the Care Standards Act 2000, s. 113 all incorporate the
phrase ‘without reasonable excuse’ as part of the main ingredients of their
individual offences.
472
The Journal of Criminal Law (2010) 74 JCL 472–486
doi:10.1350/jcla.2010.74.5.659
Any Excuse for Certainty: English Perspectives on the Defence of ‘Reasonable Excuse’
attracted considerable notoriety, with specific reference to the defences
under s. 5(3) of the 1986 Act2 and s. 58(3) of the 2000 Act3. Both of
these defences operate as distinct statutory provisions rather than work-
ing within the actus reus of the offence. The reason for the construction
of these offences in this manner is largely historical and as a result of the
gestation of both of these provisions where it was felt that both offences,
by their very nature, were too broad ranging and there should be some
additional protection to mitigate their harshness.4 A. T. H. Smith, writing
in 1987 in relation to the Public Order Act 1986, provided a somewhat
portentous observation that the defence under s. 5(3)(c) of the 1986 Act
was ‘an extraordinary delegation (if not abdication) of legislative re-
sponsibility of which the courts may have some difficulty in making
sense’.5 It is one of the key contentions of, and rationale behind, this
discussion that this warning has proven prescient. Far from offering
additional protection, the scope of what constitutes a reasonable excuse
within English law is being so narrowly construed by the courts that the
mitigating effects hoped for by the framers of the legislation have not
materialised and the initial concerns that these offences were too widely
drawn appear to be ever more justified.
It is tempting, at this point, to indulge in a detailed examination of the
nature of excusatory defences and, indeed, consider the actual construc-
tion of criminal offences.6 The defences under consideration here, it can
be argued, are both separate and distinct enough from the body of the
main offences so as to allow for a separation of the actus reus, mens rea
and defence elements of each offence.7 This is, perhaps, the most appro-
priate way of conducting such an analysis, as this was the way in which
Parliament intended the defence to operate.8 Paradoxically, one of the
2 Section 5(3) states: ‘(3) It is a defence for the accused to prove—(a) that he had no
reason to believe that there was any person within hearing or sight who was likely
to be caused harassment, alarm or distress, or (b) that he was inside a dwelling and
had no reason to believe that the words or behaviour used, or the writing, sign or
other visible representation displayed, would be heard or seen by a person outside
that or any other dwelling, or (c) that his conduct was reasonable.’
3 Section 58(3) states: ‘(3) It is a defence for a person charged with an offence under
this section to prove that he had a reasonable excuse for his action or possession.’
4 For further discussion of the evolution of public order offences, see A. T. H. Smith,
Offences Against Public Order (Sweet & Maxwell: London, 1987) 26–8. For a detailed
analysis of the background to the Terrorism Act 2000, see C. Walker, Blackstone’s
Guide to the Anti-Terrorism Legislation (Oxford University Press: Oxford, 2002) 1–37.
5 Smith, above n. 4 at 123–4.
6 There has been significant debate as to whether justification or excuse is inherent
within the actus reus of the offence—a view propagated by Glanville Williams in
Textbook of Criminal Law, 2nd edn (Stevens & Sons: London, 1983). Lanham posed
the alternative view that a criminal offence has three essential elements: (1) the
actus reus, (2) mens rea and (3) the subsequent absence of a valid defence. For
further details on this view, see D. J. Lanham, ‘Larsonneur Revisited’ [1976] Crim
LR 276–81.
7 This style of analysis is very much along the lines suggested by Lanham (above
n. 6).
8 For further discussion of the evolution of the specific defences, see Walker, above
n. 4 at 207 in relation to s. 58 of the Terrorism Act 2000, and Smith, above n. 2 at
124.
473
The Journal of Criminal Law
key problems faced by those who seek to rely on the defence of reason-
able excuse is that Parliament declined to provide any statutory explana-
tion of what will, or indeed what will not, constitute a reasonable excuse
in respect of either offence. The notion of certainty within the criminal
law is an area of considerable breadth and detailed consideration of the
wider issues lay outside the purview of this article.9 It is true to say that
Article 7 of European Convention on Human Rights (ECHR) requires
the criminal law to be drafted in a way that makes the scope of a criminal
offence clear and the prohibited conduct to be explicit.10 It is also
accepted that certainty in the drafting of law does not preclude the
interpretive activities of the courts. The case of SW v United Kingdom11
shows that the ‘resultant development’ of an offence by the courts must
be ‘consistent with the essence of the offence’ and such development
must be reasonably foreseeable.12 The nature of the ‘reasonable excuse’
defence may, therefore, encompass many distinct permutations of
excuse that require interpretation by the court. It may be argued by the
defendant that the actus reus and mens rea have indeed been established,
but there was no criminal intent behind the activity; the defendant may
argue that there was an alternative criminal activity at play instead of
the one for which the defendant had been accused; the defendant may
believe he had a right in law to pursue the otherwise prohibited activity.
It is contended that the statutory ambiguity inherent in construction of
the ‘reasonable excuse’ defence places an undue interpretive burden
upon the courts. This has resulted in courts indulging in an ad hoc
limitation of acceptable excuses to the point where the essence of the
defence may well be being compromised.
Reasonable conduct and public order: a nexus of ad hoc
decisions
In relation to both offences, it should be noted that the incorporation of
the ‘reasonable conduct’ defence does create an unusual, but no less
significant, area of commonality. It can also be argued that there is a
distinct nexus linking the suppression of controversial protest by police
officers utilising s. 5 of the Public Order Act 1986 and opposition to the
war on terror.13 This nexus becomes more apparent when considering
9 See further P. Popelier, ‘Five Paradoxes on Legal Certainty and the Lawmaker’
(2008) 2 Legisprudence 47.
10 The fundamental principle nullum crimen sine lege can be found in Art. 7(1) ECHR.
This is given further effect in English law, specifically English courts, by virtue of
s. 6(2) of the Human Rights Act 1998. See also the judgment in Kokkinakis v Greece
(A/260-A) (1994) 17 EHRR 397 at para. 36 and the case of R v Misra [2004] EWCA
Crim 2375, [2005] 1 Cr App R 238.
11 (1995) 21 EHRR 363.
12 SW v United Kingdom (1995) 21 EHRR 363 at para. 35.
13 For further explanation of this link, see C. J. Newman, ‘A Chilling Consensus:
Political Protest in the...
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