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Criminal Liability Under Offender Management Act 2007 Law Essay

In R v. M the respondents were YB (a Turkish interpreter) and DM (a solicitor) that were visiting one of the inmates at Chelmsford Prison on 16th May 2008. YB and DM met in the prison's visitors' centre before making their way into the security entry area where they left their mobile phones in the lockers provided before making their way through the check-point. YB went first and was found to have a Turkish SIM card in his pocket but claimed he had forgotten about it since his last trip to Turkey 5/6 weeks earlier and the card did not work in the UK. DM then sought to pass through the check-point and was found with a phone battery that he claimed was a spare for his mobile phone that he had forgotten about. As a result, YB and DM were charged and indicted under section 40C(1)(a) of the Prison Act (PA) 1952 (amended by the Offender Management Act (OMA) 2007) with bringing a List B article into or out of a prison recognised under section 40A(3) of the Act (as amended) as including mobile telephones.

(b) Issues

The case is based on an appeal pursuant to the Criminal Procedure & Investigations Act (CPIA) 1996 at section 35(1). This is because the OMA 2007 had only recently been implemented and there was no decision reached authoritatively on the issue brought by the Crown against the ruling of the trial judge pursuant to CPIA 1996 at section 29(1). The trial judge had rejected the view under the PA 1952 at section 40C(1)(a) (amended by the OMA 2007) that bringing a prohibited article into a prison is an absolute or strict liability offence that does not need the prosecution to prove the mens rea (i.e. the intent) required for proving the offence.

(c) Decision

Lord Justice Rix determined the trial judge’s ruling was correct and the overriding presumption favouring the mens rea in an offence had not been rebutted since the absence of express language, even where it is present elsewhere, is not enough to rebut the presumption unless it is compelled. [2] Section 40C(1)(a) of the PA 1952 (amended by the OMA 2007) is technically identical to section 40B(1)(a) so it is counter-intuitive for such an offence to be based on absolute liability. Then, regarding the actus reus, “throws” involves an intentional act, but “brings” is more neutral whilst “otherwise conveys” is coloured by what has gone before for finding absolute liability. [3] However, someone who leaves a prohibited article in a prison intending it for a prisoner will almost certainly already have either committed an offence or be complicit with someone else who has - although it allows for the possibility use is made of someone who has innocently brought a prohibited article in. Section 39(1)(b)(i) of the PA 1952 (as amended by the OMA 2007) uses much of the language of section 40C(1)(a) save it refers to “anything” and “intending to facilitate the escape of a prisoner” - although such language is consistent with an article being brought knowingly into prison. [4] Nevertheless, the judge's reasoning is also consistent with the underlying philosophy under the PA 1952 even though the offences in the original sections 39 and 40 prescribed a lower tariff of penalty and are redolent of an underlying requirement of mens rea. In addition, absolute liability is necessary and must be inferred to have been Parliament's intention because otherwise it is too difficult for the prosecution to deal with defences of ignorance and forgetfulness. [5] 

2) Case Commentary

As has already been recognised in the preceding Case Note, the trial judge had rejected the view under the PA 1952 at section 40C(1)(a) (amended by the OMA 2007) that bringing a prohibited article into a prison is an absolute or strict liability offence that does not need the prosecution to prove the mens rea required for proving the offence in R v. M & Another. [6] With this in mind, Lord Justice Rix looked to ostensibly base his legal reasoning in this case on recognising there is a presumption mens rea is essential to any criminal offence from out of an evaluation of the development of the common law in this regard - although it could be rebutted by statute or necessary implication. By way of illustration, Lord Justice Rix showed an appreciation of the fact Lord Reid recognised in Sweet v. Parsley [7] it has long been presumed Parliament did not make people who were not blameworthy criminals in view of the facts of the case under discussion. [8] This has meant that whenever an Act does not refer to the mens rea it is presumed to give effect to Parliament's will it is necessary to read in words necessary for mens rea that is essential for every offence unless some reason can be found it is not necessary. [9] 

Therefore, Lord Justice Rix found it is insufficient for a presumption to be rebutted merely to find other statutory provisions require a mens rea whereas the section being analysed is silent. [10] However, certain classes of offence are described as either quasi or not truly criminal especially when the state looks to regulate business conduct in the interests of health and safety where presumption may be rebutted more easily. Moreover, Lord Justice Rix found in the case of Gammon (Hong Kong) Ltd v. Attorney-General of Hong Kong, [11] Lord Scarman restated the principles that apply regarding the recognition of the importance of mens rea in cases such as R v. M & Another [12] since - (a) it is presumed the mens rea is needed prior to an individual being determined as guilty of a criminal act; (b) this presumption is seen as being especially strong in the event that an act is characterised as being 'truly criminal'; (c) this presumption is recognised as being applicable to offences of a statutory nature and may only be displaced if this is specifically recognised or implied from out of a given piece of legislation; (d) the only time when this presumption may be displaced is where the legislation under a given case is dealing with social concerns like public safety; and (e) even in the event that legislation deals with this kind of issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. [13] 

Since the decision reached in Gammon (Hong Kong) Ltd v. Attorney-General of Hong Kong [14] regarding the aforementioned principles, Lord Justice Rix in R v. M & Another [15] recognised that the principles from this case have been utilised in other decisions before the courts including B (a minor) v. Director of Public Prosecutions [16] with a view to developing a universal approach to the application of mens rea. The court in this case found the offence under the Indecency with Children Act 1960 at section 1(1) of inciting a girl under 14 to commit an act of gross indecency was not one of strict liability but needed the prosecution to prove there was not a genuine belief the complainant was at least 14 or more. Lord Nicholls recognised the “necessary implication” and a “compellingly clear” interpretation - although an implication could be found in the language, the nature of the offence, the mischief that was to be prevented and circumstances that could help determine the intention to be properly attributed to Parliament. [17] Similarly, it was found in R v. K, [18] regarding indecent assault under the Sexual Offences Act 1956 at section 14, a girl under 16 cannot consent to stop an act from being an assault so it was held by the House of Lords the presumption in favour of mens rea meant the prosecution had to prove the defendant did not have a genuine belief the girl in question was 16. On this basis, Lord Bingham of Cornhill made reference to Lord Reid aforementioned recognition of the applicable principles derived from his judgement Sweet v. Parsley [19] as being the “classic statement of principle”. [20] This is because the decision in that case of Sweet v. Parsley [21] served to illustrate the difficulty involved with arguing for an express mens rea's presence in one sub-section and its absence in the sub-section under review to conclude the latter sub-section was meant to implement an absolute liability offence. [22] 

In conclusion, with regard to the issue under consideration in R v. M & Another [23] it has been submitted that absolute liability is required in keeping with the intentions of Parliament under the PA 1952 (as amended by the OMA 2007) since it would otherwise prove too complex for the prosecution to look to effectively deal with forgetfulness and ignorance as defences. As has already been recognised, however, that argument did not serve to impress Lord Reid in making his judgement in the case of Sweet v. Parsley. [24] Regardless, it has commonly proved to be the case that it is for the prosecution to look to effectively deal with these defences and that the need for mens rea does not involve knowledge the article brought into the prison environment in this case under the PA 1952 (as amended by the OMA 2007) is an article considered to have been prohibited. Moreover, whilst the presumptive element of mens rea could be looked upon as 'knowingly', the most definition in this regard was put forward in B (a minor) v. Director of Public Prosecutions [25] to amend what was originally put forward in this regard that the prosecution has to prove the defendant does not have a genuine belief the offence was not committed. Therefore, as Lord Justice Rix recognised in his judgement in R v. M & Another [26] the prosecution needs to prove there is not an honest belief on the part of the defendants in this case that they were not bringing the offending articles (i.e. the Turkish SIM card and phone battery) with them when they entered the prison.

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