REPORTING RESTRICTIONS APPLY TO THIS CASE
Trinity
Term
[2018] UKSC 36
On appeal from: [2017]
EWCA Crim 129
JUDGMENT
|
R v Sally Lane and John Letts (AB and CD) (Appellants)
|
|
before
Lady Hale, President
Lord Mance
Lord Hughes
Lord Hodge
Lord Burnett
|
|
JUDGMENT GIVEN ON
|
|
|
|
|
|
11 July 2018
|
|
|
|
|
|
Heard on 19 April 2018
|
|
Appellants
|
|
Respondent
|
|
Tim Moloney QC
|
|
Louis Mably QC
|
|
Richard Thomas
|
|
Alison Morgan
|
|
(Instructed by ITN Solicitors)
|
|
(Instructed by CPS
Appeals and Review Unit)
|
LORD HUGHES: (with whom
Lady Hale, Lord Mance, Lord Hodge and Lord Burnett agree)
1.
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.
2.
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.
3.
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.”
4.
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?
5.
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.
6.
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.
7.
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 as to mens rea
8.
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.
9.
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.
10.
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.
11.
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.
12.
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 Act. On the
contrary, that is the inevitable first port of call for any issue of
construction, as Lord Reid’s statement of the principle in Sweet v Parsley
expressly stated.
The language of the statute
13.
Mr Moloney QC, for the appellants, was characteristically realistic, and
correct, to recognise that the words of section 17(b) are such as, at first sight,
suggest an objective test. The section makes it an offence where the defendant
either “knows” or “has reasonable cause to suspect”. It does not say what one
would expect it to say if it meant that the defendant must be proved actually
to have suspected, that is:
“if … he knows or suspects …”
Nor, for that matter, does it say:
“if … he knows or reasonably
suspects …”
It is thus very difficult to see this statutory provision
as one of the kind which Lord Reid was describing in Sweet v Parsley,
that is to say one which is silent as to the state of mind required for
commission of the offence.
Saik and O’Hara
14.
The appellants nevertheless contend that, if not silent, the provision
is ambiguous, and thus that the presumption should operate to resolve the doubt
in favour of the construction which favours an accused by requiring a greater
degree of mens rea. This argument is founded largely upon the House of Lords
decision in R v Saik [2006] UKHL 18; [2007] 1 AC 18 and particularly on
some passages in the speech of Lord Hope in that case and in O’Hara v Chief
Constable of the Royal Ulster Constabulary [1997] AC 286.
15.
In Saik the substantive offence under consideration was one of
the now repealed offences of money-laundering contained in section 93A-C of the
Criminal Justice Act 1988. The relevant one was section 93C(2):
“(2) A person is guilty of an
offence if, knowing or having reasonable grounds to suspect that any property
is, or in whole or in part directly or indirectly represents, another person’s
proceeds of criminal conduct, he -
(a)
conceals or disguises that property; or
(b) converts or transfers
that property or removes it from the jurisdiction,
for the purpose of assisting any
person to avoid prosecution for an offence to which this Part of this Act
applies or the making or enforcement in his case of a confiscation order.”
16.
It is certainly true that in Saik the House of Lords concluded
that this section imported a requirement that the defendant actually suspect,
as well as that he did so on reasonable grounds. Whilst the section under
discussion in the present case speaks not of reasonable “grounds” but of
reasonable “cause” for suspicion, it is not necessary to contemplate any
distinction between the two for the purposes of the present argument. The
appellants rely particularly on what Lord Hope said at paras 51-53, where he
concluded that to stipulate for reasonable grounds for suspicion assumed the existence
of actual suspicion. Lord Hope drew an analogy with statutory powers of arrest,
including that considered in O’Hara which was section 12(1) of the
Prevention of Terrorism (Temporary Provisions) Act 1984. There a constable was
given powers to arrest without a warrant if he had reason to suspect the person
arrested was concerned in terrorism. As Lord Hope remarked in both cases, such
a power of arrest plainly assumes an actual suspicion and adds the
requirement that it be held on reasonable grounds. It plainly does not
contemplate a constable arresting someone whom he might have grounds to
suspect, but of whom he has no suspicion, still less someone about whom he has
not thought at all, but of whom it could be said that objectively there existed
reasonable grounds to suspect him.
17.
The existence or otherwise of reasonable grounds for suspicion was not
an issue in Saik. The defendant there concerned had made no bones about
admitting that he suspected that the property which he had dealt with was the
proceeds of crime; his contention was that he suspected but did not know. The
charge he faced was not brought under section 93C(2). It was a charge of
conspiracy to commit that statutory offence, and the point at issue related to
the terms of section 1(2) of the Criminal Law Act 1977 which mandates proof of
knowledge or intent when conspiracy is charged, even if the substantive offence
is one which can be committed without such a state of mind. Accordingly, the
construction of section 93C(2) arose only en route to the real question, which
was the meaning of the requirement for knowledge if the charge is conspiracy. As
all their Lordships, including Lord Hope at para 51, made clear, section 93C(2)
contained within its own terms the answer to any issue about its construction. Since
the statutory offence which it created could be committed only if the defendant
acted with the purpose of assisting someone else to avoid either prosecution or
a confiscation order, the section necessarily meant, or assumed, that the
defendant had actual suspicion. As Lady Hale succinctly put it at para 102:
“Without that actual suspicion, he
cannot act with the purpose required.”
For these reasons it is not possible to read either Saik
or O’Hara as laying down a universal proposition that if a statute
speaks of a person having “reasonable cause to suspect”, that will always
assume that he has to have actual suspicion.
The statutory context
18.
An offence of providing funding towards terrorism first appeared in the
Prevention of Terrorism (Temporary Provisions) Act 1976. Section 10(2) of that
Act provided:
“If any person gives, lends or
otherwise makes available to any other person, whether for consideration or
not, any money or other property, knowing or suspecting that the money
or other property will or may be applied or used for or in connection with the
commission, preparation or institution of acts of terrorism to which this
section applies, he shall be guilty of an offence.” [Emphasis supplied]
That subsection was re-enacted in essentially identical
form in section 10(2) of the replacement statute, the Prevention of Terrorism
(Temporary Provisions) Act 1984. These sections thus provided for an offence
which required proof either of knowledge or of actual suspicion.
19.
However, when the 1984 Act was in turn replaced by the Prevention of Terrorism
Act 1989 a change was made. Section 9(2) said:
“(2) A person is guilty of an
offence if he -
(a) gives, lends or
otherwise makes available to any other person,
(b) whether for
consideration or not, any money or other property; or
enters into or is otherwise
concerned in an arrangement whereby money or other property is or is to be made
available to another person, knowing or having reasonable cause to suspect
that it will or maybe applied or used as mentioned in subsection (1) above.” [Emphasis
supplied]
A similar formulation (“intending … or having reasonable
cause to suspect”) was applied by the 1989 Act to the related offence contrary
to section 9(1) of soliciting or receiving contributions; this offence had, in
previous statutes, required proof of intention rather than of any form of
suspicion. These changes can only have been deliberate. They are inexplicable
unless it was the Parliamentary intention to widen the scope of the offences to
include those who had, objectively assessed, reasonable cause to suspect that
the money might be put to terrorist use, as well as those who intended that it
should be, or knew that it would be. In particular, the change in the
definition of the offence which is now section 17 of the Terrorism Act 2000,
and here under question, is a change from “knows or suspects” to “knows or has
reasonable cause to suspect”. That change can only have been intended to remove
the requirement for proof of actual suspicion. It is not open to the court to
ignore this kind of clear Parliamentary decision.
20.
That inevitable conclusion is reinforced by the presence in the 2000 Act
of section 19. This creates an offence for specified groups of people of
failing to disclose to a police officer a belief or suspicion, which has come
to their attention in the course of their work, that another person has
committed one of a number of specified terrorist offences. The offence is
committed, according to section 19, where a person
“believes or suspects …”
Thus the 2000 Act, here in question, demonstrates the
currency, in the context of terrorist offences, of a reference to actual
suspicion, at the same time as turning its back on such a reference section 17,
with which this court is now concerned. The contrast is clearly a relevant
pointer to the meaning of section 17.
21.
Similarly, section 18 of the same Act creates an offence of money
laundering in relation to terrorist property. The offence contains no
requirement of a mental element as a definition of the offence. Rather, by
subsection (2), it provides that it is a defence for a person charged to prove
that “he did not know and had no reasonable cause to suspect” that he was
dealing with terrorist property. Thus the mental element provided for is
consistent with that in the adjacent section 17, namely objectively assessed
reasonable cause to suspect, although the onus of proof is reversed. This
section also compellingly reinforces the construction of section 17 arrived at
by the judge and the Court of Appeal. The contention of the appellants that
section 18 can be read as providing a defence to a defendant who shows that he
did not in fact suspect the terrorist nature of the property with which he was
dealing is simply not consistent with the words used. If that is what had been
the intention, section 18 would no doubt have provided a defence for an accused
who “did not know or suspect”, using the juxtaposition of knowledge and
suspicion which appears in the next following section 19.
22.
Although it is derived from a subsequent legislative amendment, section
21A is perhaps a further indication, if one were required, that the difference
between actual suspicion and objectively assessed reasonable cause for
suspicion remains one which is observed by Parliament. Section 21A (inserted
into the Act by the Anti-terrorism, Crime and Security Act 2001) creates an
offence, for those operating within the regulated sector, of non-disclosure of
information suggesting an offence by another. By subsection (2) the first
element of the definition of this offence is in the alternative:
“(2) The first condition is
that he -
(a) knows or suspects, or
(b) has reasonable grounds
for knowing or suspecting,
that another person has committed
or attempted to commit an offence under any of sections 15 to 18.”
In that section, or any other similarly constructed, it
is plain beyond argument that the expression “has reasonable grounds for
suspicion” cannot mean “actually suspects”.
Strict liability?
23.
The presumption of which Lord Reid spoke in Sweet v Parsley, and
which has been invoked since where consistent with the principles of statutory
construction, is a presumption that Parliament “did not intend to make
criminals of persons who were in no way blameworthy in what they did”: see para
8 above. The magistrates had found specifically that Miss Sweet, who did not
live in the house which she owned but let out “had no knowledge whatever that
the house was being used” by her tenants for the purpose of consuming
prohibited drugs. The question posed for the House of Lords by the Divisional
Court was whether the relevant section of the Dangerous Drugs Act created “an
absolute offence”. Lord Reid adverted at p 150B to the fact that Parliament
could have dealt with the social problem involved either by inverting the onus
of proof so as to require an accused to demonstrate lack of knowledge, or by
providing that the offence could be committed by negligence. It had not, however,
in that case done so.
24.
In the present case it would be an error to suppose that the form of
offence-creating words adopted by Parliament result in an offence of strict
liability. It is certainly true that because objectively-assessed reasonable
cause for suspicion is sufficient, an accused can commit this offence without
knowledge or actual suspicion that the money might be used for terrorist
purposes. But the accused’s state of mind is not, as it is in offences which
are truly of strict liability, irrelevant. The requirement that there exist
objectively assessed cause for suspicion focuses attention on what information
the accused had. As the Crown agreed before this court, that requirement is
satisfied when, on the information available to the accused, a reasonable
person would (not might or could) suspect that the money might be used
for terrorism. The state of mind of such a person is, whilst clearly less
culpable than that of a person who knows that the money may be used for that
purpose, not accurately described as in no way blameworthy. It was for
Parliament to decide whether the gravity of the threat of terrorism justified
attaching criminal responsibility to such a person, but it was clearly entitled
to conclude that it did. It is normal, not unusual, for a single offence to be
committed by persons exhibiting different levels of culpability. The difference
in culpability can, absent other aggravating features of the case, be expected
to be reflected in any sentence imposed if conviction results.
Conclusion
25.
For these reasons it is clear that the conclusions arrived at by the
trial judge and the Court of Appeal were correct. The appeal must be dismissed.
Reporting restrictions
26.
Section 37 of the Criminal Procedure and Investigations Act 1996 imposes
statutory reporting restrictions in relation to the hearing of interlocutory
appeals such as the present. The objective is to ensure that the jury’s
consideration of the evidence and issues put before it is not at risk of being
affected by prior reporting, for example of the details of the allegations or
of discussion of possible issues. Those restrictions apply to the hearing of
this appeal. Until the conclusion of the trial, nothing may be reported except
the following:
(a) the identity of the
court(s) and the name of the judge(s);
(b) the names, ages,
home addresses and occupations of the accused and witnesses;
(c) the offences
charged, as summarised in this judgment;
(d) the names of counsel
and solicitors engaged in the appeal;
(e) whether for the
purposes of the appeal representation was provided to either of the accused
under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
and
(f) this judgment.
