In this 2018 pretrial appeal, the Supreme Court interpreted the terrorism funding offence in section 17 of the Terrorism Act 2000. It considered whether the prosecution had to prove actual suspicion where the accused had reasonable cause to suspect that money might be used for terrorism.
The question raised before trial
The appeal arose from a judge’s ruling at a preparatory hearing. No evidence had been heard at that stage. Lord Hughes, giving the unanimous judgment, confined the decision to the meaning of the statute.
The charge concerned arrangements for making money available to another person. The Supreme Court did not determine whether either defendant had entered into such an arrangement with the requisite knowledge or cause for suspicion.
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Section 17 applies where a person 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 “knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.”
The issue was the second part of that definition. Must the accused actually suspect terrorist use, and do so for reasonable cause? Or is it enough that, on the information known to the accused, there is objectively assessed reasonable cause to suspect that this may be the use? Both the trial judge and the Court of Appeal adopted the second meaning.
Why the appellants said actual suspicion was required
The appellants said the words could bear either meaning. They relied on the presumption, stated by Lord Reid in Sweet v Parsley, that Parliament does not intend to make criminals of people who were in no way blameworthy unless the statute clearly provides otherwise. Where an offence-creating provision is silent about the required state of mind, courts may read in a mental element, often called mens rea. They argued that this serious offence was not the sort of regulatory offence in which strict liability is more readily found.
The statutory words come first
Lord Hughes accepted the importance of the presumption, but treated it as a principle of interpretation rather than a power to replace Parliament’s words with a different mental element. It prevents a requirement of mens rea from being removed inadvertently, silently or ambiguously. It yields to plain language or to other clear pointers to meaning. The first task is to read the statute, so the Court of Appeal had not erred by beginning there.
The language of section 17(b) suggests an objective test. The offence is committed where the defendant “knows” or “has reasonable cause to suspect”. It does not say “knows or suspects”, nor “knows or reasonably suspects”. It is therefore difficult to treat the provision as silent about the required state of mind.
Earlier cases did not create a universal rule
The appellants relied principally on R v Saik and on O’Hara v Chief Constable of the Royal Ulster Constabulary. In Saik, the House of Lords treated a repealed money-laundering offence, framed by reference to “knowing or having reasonable grounds to suspect”, as requiring actual suspicion. Lord Hope compared statutory arrest powers, including the power in O’Hara, under which a constable could arrest without warrant if he had reason to suspect involvement in terrorism. Such a power assumes that the constable actually suspects the person and adds the requirement that the suspicion be reasonable.
Lord Hughes distinguished the earlier cases. In Saik, the charge was conspiracy and the substantive offence had a separate purpose requirement. O’Hara concerned the exercise of a constable’s power of arrest. Neither dictated the construction of section 17.
Parliament deliberately widened the offence
The legislative history made the meaning clear. The funding offence in the Prevention of Terrorism (Temporary Provisions) Acts of 1976 and 1984 required proof of “knowing or suspecting” terrorist use. When the Prevention of Terrorism Act 1989 replaced that legislation, the wording became “knowing or having reasonable cause to suspect”. A related offence of soliciting or receiving contributions, which had required intention, was also reframed as “intending … or having reasonable cause to suspect”.
Lord Hughes said those changes can only have been deliberate. They widened the offences to cover people who, assessed objectively, had reasonable cause to suspect terrorist use, as well as those who intended that use or knew of it. In particular, the change from “knows or suspects” to “knows or has reasonable cause to suspect” removed the need to prove actual suspicion. Section 17 preserves that widened form, and the court could not ignore Parliament’s decision.
The surrounding provisions draw the same distinction
Section 19 of the 2000 Act, concerning failure by specified people to disclose a belief or suspicion arising in their work, uses “believes or suspects”. The same Act therefore uses the language of actual suspicion where that is intended, while section 17 does not.
Section 18, concerning money laundering of terrorist property, defines the offence without a mental element, but provides a defence if the accused proves that he “did not know and had no reasonable cause to suspect” that he was dealing with terrorist property. That matches the objective standard in section 17, although the burden of proof is reversed. The appellants’ suggestion that section 18 protects someone who did not in fact suspect is inconsistent with its words. Had that been intended, Parliament could have used the “did not know or suspect” contrast found in section 19.
Section 21A used actual suspicion and reasonable grounds for suspecting as alternatives within the same provision. That wording reinforced the distinction Parliament had drawn.
Not an offence of strict liability
The Court rejected the suggestion that this construction makes the offence one of strict liability. An accused can commit it without knowledge or actual suspicion. Even so, the accused’s state of mind is not irrelevant. The test looks at the information available to the accused. As the Crown accepted, it is satisfied only when, on that information, a reasonable person would — not merely might or could — suspect that the money might be used for terrorism.
That state of mind is less culpable than knowledge, but it is not a state of being in no way blameworthy. Parliament was entitled to decide that the gravity of the terrorist threat justified criminal responsibility at that level. If conviction follows, differences in culpability can ordinarily be reflected in sentence, absent other aggravating features.
Verdict: The Court unanimously dismissed the appeal. On the facts known to the accused, a reasonable person must have been led to suspect possible terrorist use. Actual suspicion was unnecessary, but a mere possibility that a reasonable person might suspect it was insufficient.
Source: R v Sally Lane and John Letts (AB and CD) (Appellants) [2018] UKSC 36
