The appellants relied on the well-established principle that whenever a statutory section creates a criminal offence but does not refer to the offender’s state of mind (“mens rea”), there is a presumption that to give effect to the will of Parliament, the court must read in words requiring mens rea .
While it is an important principle, it is a principle of statutory construction. It does not empower the court to substitute the plain words used by Parliament for a different provision on the grounds that the court would have done so differently by providing for an element, or a greater element, of mens rea.
The presumption must give way to either the plain meaning of the words of the statute, or to other relevant pointers to meaning which clearly demonstrate what was intended. The first port of call for any issue of construction is the words of the Act .
The words of section 17(b) of the Act suggest an objective test for mens rea at first sight. Thus, it is very difficult to see this statutory provision as one which is silent as to the intent required for the commission of the offence .
An offence of providing funding towards terrorism first appeared on the statute books in 1976 and was re-enacted in identical form in 1984. Those sections required proof either of knowledge or of actual suspicion. However, the Prevention of Terrorism Act 1989 made a change and introduced thewords “knowing or having reasonable cause to suspect” in place of “knowing or suspecting”. Thesechanges were 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. The change can only have been intended to remove the requirement for proof of actual suspicion. The court cannot ignore this clear Parliamentary decision[18-19].
It would be an error to suppose that the form of offence-creating words in section 17(b) create an offence of strict liability. Unlike an offence of strict liability, the accused’s state of mind is relevant for section 17(b). The requirement of an objectively assessed cause for suspicion focuses attention on what information the accused had. The requirement is satisfied when, on the information available to the accused, a reasonable person would suspect that the money might be used for terrorism .