In this episode we consider that aspect of the Supreme Court decision on a certified point of law of general public importance whether the offence created by section 13 of the Terrorism Act 2000 is an offence of strict liability.
Were three men carrying flags of a proscribed demonstration in a demonstration in London required to have mens rea that they were committing the offence?
Transcript
Each was convicted in the Westminster Magistrates’ Court of a section 13 offence, two were given three-month conditional discharges and the third received an absolute discharge.
Appeals to the Crown Court and Divisional Court were dismissed.
of the Terrorism Act:ector of Public Prosecutions [:It was common ground between the parties that a limited mental element was indisputably required under section 13(1) in the sense that the defendant must have known that he or she was wearing or carrying or displaying the relevant article.
On the facts of the case, each defendant had to know that he was carrying or displaying a flag. Put another way, the carrying or displaying of the flag had to be deliberate and not inadvertent.
If a person were to stick a flag into or onto a defendant’s backpack without the defendant’s knowledge so that the defendant was carrying or displaying the flag without knowing that he or she was doing so, the defendant would not be guilty of the offence. The words “wears, carries or displays” necessarily imported knowledge of that limited kind.
of the Dangerous Drugs Act:It was held that her conviction should be quashed because the offence was not one of strict liability.
Lord Reid explained that there was a presumption of mens rea:
“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.”
In his leading speech in B (A Minor) v Director of Public Prosecutions Lord Nicholls added that the presumption of mens rea was a strong one so that it would only be rebutted by express words or by necessary implication:
“’Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.”
Looking first and foremost at the words used, the Court considered that the objective formulation of the offence – arousing “reasonable suspicion” – indicated that there was no requirement of mens rea.
It was the role of the court to interpret correctly what Parliament had enacted. But it was not the role of the court in applying the law on the presumption of mens rea, to rewrite the statute, still less to do so in a way that contradicted the express words used.
It was outside the judicial role for the court to accept an invitation to embark on a speculative exercise to divine what Parliament may have intended as mens rea.
The Court agreed with the words of Holroyde LJ in the Divisional Court when he said: “the language of section 13 is … entirely clear and unambiguous … nothing in the section requires any knowledge on the part of the wearer [or carrier] of the import of the item or article, or of its capacity to arouse the requisite suspicion.”
sections in the Terrorism Act:It was clear from the words of sections 11(1) and section 12(1)-(3) that the offences in those sections were not offences of strict liability. They required mens rea.
For example, one could not belong or profess to belong to a proscribed organisation unless one intended to belong or to profess to belong to the organisation. “Belonging” or “professing to belong” could not be inadvertent.
Similarly, one could not “invite support” unless one knew that one was inviting support.
A rational explanation for why section 13(1) created a far less serious summary offence, punishable by a maximum of six months’ imprisonment rather than 14 years, is that while the offences in section 11 and 12 required mens rea, section 13(1) created a strict liability offence.
As to purpose, the Court agreed with the very clear reasoning of Holroyde LJ when he said: “… it is important to consider the purpose of section 13 and the mischief it aims to prevent. Parliament has legislated to proscribe certain terrorist organisations, and the purpose of section 13 is to give practical effect to such proscription.
“The mischief at which it is aimed is conduct which leads others reasonably to suspect the wearer of being a member or supporter of a proscribed organisation, that being conduct which gives rise to a risk that others will be encouraged to support that proscribed organisation or to view it as legitimate (and I would add, though it is not essential to my decision, that it also gives rise to a risk of public disorder resulting from a hostile reaction on the part of others).
“The risk arises whatever the understanding or intention of the wearer. A group of people waving PKK flags in Whitehall is a potent symbol of apparent support for the PKK, and therefore an encouragement of others to support the PKK, whether or not individual members of the group intend to express support for that proscribed organisation.
“In short, a person who commits the actus reus of the section 13 offence by his conduct creates the risk I have mentioned, whether or not he intends to do so or knows that he is doing so.
The Supreme Court’s unanimous view was that section 13(1) was a strict liability offence. There was no extra mental element required over and above the knowledge required for the wearing or carrying or displaying of the article to be deliberate.
The strong presumption as to mens rea was rebutted by necessary implication – in the words of Lord Nicholls in B v Director of Public Prosecutions the implication was “compellingly clear” because of the words used, the context and the purpose of the provision.
You can read a summary of this Podcast episode with case citations under the title Presumption of Mens Read in the News Section at www.barrybaines.co.uk