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Summary

On 11 July 2018, the Supreme Court gave judgment in the case of AB and CD, addressing whether the Jones_Jphrase “has reasonable cause to suspect” in the Terrorism Act 2000, s 17(b), has the same meaning as “has a reasonable suspicion”, i.e. whether it is necessary for a person charged under  s 17 of the 2000 Act  to actually have suspected that the money or property s/he makes available may be used for terrorist purposes. The Supreme Court dismissed the appeal, concluding that there is no need for proof of actual suspicion. Lord Hughes gave the judgment, with which the other members of the Court agreed.

Background

The appellants are charged with offences under  s 17 of the 2000 Act. It is alleged that they entered into or became concerned in a funding arrangement as a result of which money or other property is made available, or is to be made available to another, and they had reasonable cause to suspect that it will or may be used for the purposes of terrorism.

At a preparatory hearing in the Crown Court, the trial judge found that there was no requirement for any evidence that the defendants actually suspected the money may be used for the purposes of terrorism. They appealed that finding to the Court of Appeal, which dismissed their appeal.

At the time of the Supreme Court judgment, the defendants’ trial had not yet taken place, and reporting restrictions were imposed to protect the integrity of the Crown Court trial. No further details of the allegations against the defendants were therefore included in the Supreme Court’s judgment.

The Supreme Court’s decision

The Supreme Court assessed the legislative history of s 17(b) in order to reach its conclusion that the mens rea for a s 17 offence was lower than actually suspecting the money may be used for the purposes of terrorism.

The first offence of terrorist funding was introduced in 1976, and was re-enacted in identical form in 1984. Both of those offences required a mens rea of “knowing or suspecting”. When the Prevention of Terrorism Act 1989 was introduced, however, it replaced the pre-existing terrorist funding offence and introduced a different mens rea threshold: “knowing or having reasonable cause to suspect”. The Court considered that the only explanation for Parliament changing the words used is that it intended there to be a different effect.  The Parliamentary intention to be deduced from that was that Parliament intended the offence to apply more widely, to those who had reasonable cause to suspect (but did not actually suspect). That compels the conclusion that s 17(b), which uses the same formulation of words, also does not require proof of “suspicion”. It is enough that there exists, assessed objectively, reasonable cause to suspect that the money may be used for the purposes of terrorism.

The Court clarified that that does not make s 17 a strict liability offence. The offender’s state of mind is relevant to whether the offence is made out, because the focus must be on what information a defendant actually had in their possession – and what a reasonable person would have suspected on the basis of that information.