R v AB and Another
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Hodge,Lord Mance,Lord Burnett,Lady Hale |
| Judgment Date | 11 July 2018 |
| Neutral Citation | [2018] UKSC 36 |
| Court | Supreme Court |
| Date | 11 July 2018 |
[2018] UKSC 36
Lady Hale, President
Lord Mance
Lord Hughes
Lord Hodge
Lord Burnett
Appellants
Tim Moloney QC
Richard Thomas
(Instructed by ITN Solicitors)
Respondent
Louis Mably QC
Alison Morgan
(Instructed by CPS Appeals and Review Unit)
Heard on 19 April 2018
(with whom Lady Hale, Lord Mance, Lord HodgeandLord Burnettagree)
The ruling under challenge in this case was made by the Crown Court judge at a preparatory hearing, held in anticipation of a criminal trial. That means that as yet no evidence has been heard and it cannot be known what the facts of the case may turn out to be. Such rulings are occasionally necessary in order to establish the basis on which the trial will be conducted. But it needs to be remembered that a point raised at that early stage may turn out to be at the centre of the trial, or to be merely peripheral, or indeed sometimes not to arise at all, depending on what evidence emerges, and which parts of it are in dispute. For this reason, reporting restrictions apply to this hearing: see para 26 below.
The two appellants are charged with the offence of entering into funding arrangements connected with terrorism, contrary to section 17 of the Terrorism Act 2000 (“the Act”). Because it is not yet known what course the trial will take, as little as possible should be said now about the allegations, which may or may not be proved. It is enough to say that the appellants are charged with sending money overseas, or arranging to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism.
The section of the Act which creates this offence says as follows:
“ 17. Funding arrangements.
A person commits an offence if —
(a) he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and
(b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.”
The question which arises on this appeal concerns the correct meaning of the expression “has reasonable cause to suspect” in section 17(b). Does it mean that the accused must actually suspect, and for reasonable cause, that the money may be used for the purposes of terrorism? Or is it sufficient that on the information known to him there exists, assessed objectively, reasonable cause to suspect that that may be the use to which it is put?
Of course, it may well be that at any trial under this section it will be the Crown case that a defendant actually did suspect, and for reasonable cause, that the money might be used in this way, and it may well be that an important issue at the trial will be whether that allegation is proved or not. But the judge in the present case addressed the question posed in the previous paragraph in case it were to arise at the trial.
The question posed above has been addressed by counsel on both sides with commendable accuracy and lucidity. Both the trial judge and the Court of Appeal (Criminal Division) concluded that the correct answer was that the words used in the statute plainly mean that it is sufficient that on the information known to the accused, there exists, assessed objectively, reasonable cause to suspect that the money may be used for the purposes of terrorism.
The appellants contend that this conclusion is wrong. They say that:
(i) the words used are capable of either meaning;
(ii) given that, the well-established presumption that an offence-creating provision ought to be construed as requiring an element of a guilty mind (“mens rea”) operates to accord to the section the meaning that an accused must actually suspect that the money may be put to terrorist use;
(iii) this is particularly so since the offence here created is a serious one, to be contrasted with the kind of regulatory contexts where a legislative intention to create an offence of strict liability may more easily be divined;
(iv) the Court of Appeal erred in starting by asking the natural meaning of the words, and then whether that meaning had been displaced; it is said that it ought to have begun with the presumption of mens rea and asked whether that presumption had been displaced by the words of the section; and
(v) the Court of Appeal erred in giving too much emphasis to the fact that the statute was designed to protect the public against the grave threat of terrorism; whilst this is so, it is not a reason to dilute the presumption.
The presumption on which the appellants rely is indeed well-established and has often been applied to the construction of statutes creating offences where the meaning is in doubt. The conventionally authoritative statement of the presumption is found in the speech of Lord Reid in Sweet v Parsley [1970] AC 132, 148, 149:
“our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.
…
… it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.
It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’ is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say ‘must have been’ because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”
This statement of the principle was described by Lord Nicholls in B (A minor) v Director of Public Prosecutions [2000] 2 AC 428, 460 as “magisterial”. It has often been applied, and it is unnecessary to multiply examples. They include recent cases in this court, such as R v Brown (Richard) [2013] UKSC 43; [2013] 4 All ER 860, R v Hughes (Michael) [2013] UKSC 56; [2013] 1 WLR 2461, and R v Taylor (Jack) [2016] UKSC 5; [2016] 1 WLR 500.
Whilst the principle is not in doubt, and is of great importance in the approach to the construction of criminal statutes, it remains a principle of statutory construction. Its importance lies in ensuring that a need for mens rea is not inadvertently, silently, or ambiguously removed from the ingredients of a statutory offence. But it is not a power in the court to substitute for the plain words used by Parliament a different provision, on the grounds that it would, if itself drafting the definition of the offence, have done so differently by providing for an element, or a greater element, of mens rea. The principle of Parliamentary sovereignty demands no less. Lord Reid was at pains to observe that the presumption applies where the statute is silent as to mens rea, and that the first duty of the court is to consider the words of the statute.
Hughes (Michael) and Taylor (Jack), mentioned above, concerned offences of causing death by driving. They were cases where the language of the statutes was ambiguous and the presumption assisted the court to reach the conclusion that they imported an element of fault (although not necessarily of subjective mens rea rather than of error of driving). The words used by Parliament were words of causation of death. This court construed those words as importing an element of fault, principally because there were ample unambiguous alternative expressions which could and would have been used if the intention had been to create an offence of homicide which could be committed simply by being present on the road to be run into by someone else.
By contrast, Brown (Richard) was a case in which this court had no doubt that the statutory offence of unlawful carnal knowledge of a girl under 14 did not contain a requirement that the accused know that the girl was under age. This conclusion was mandated despite the fact that the offence-creating section was silent as to whether such knowledge was required or not. It was a conclusion compelled by the prior common law and statutory context, against which the offence had been created, by other provisions in the legislation, which had to be construed as a whole, and by the social mischief which the Act had been passed to meet.
Thus these three recent cases are good illustrations of the truism that the presumption on which the appellants here rely is a principle of statutory construction, which must give way to either the plain meaning of the words, or to other relevant pointers to meaning which clearly demonstrate what was intended. It follows that the Court of Appeal in the present case did not fall into the error suggested, of wrongly starting with the words of the...
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