Crown Prosecution Service v M & B

The presumption that mens rea is an essential ingredient of a criminal offence is a constitutional principle. It is displaced only by clear statutory words or a compelling necessary implication. Statutory silence, including silence beside provisions containing express mental elements, does not suffice.

An offence of bringing a List B article into or out of prison under Prison Act 1952, section 40C(1)(a), is not one of absolute or strict liability. The prosecution must prove the absence of an honest belief that the accused was not bringing the article into the prison. It need not prove that the accused knew the article was listed as prohibited.

The Crown appealed against a preparatory ruling of HHJ Goldstaub QC in the Crown Court at Chelmsford. The ruling rejected the Crown’s submission that Prison Act 1952, section 40C(1)(a), created an offence of absolute or strict liability.

The respondents had separately entered the prison visitors’ security area with a Turkish SIM card and a mobile-phone battery after leaving their mobile telephones in lockers. The Crown had no evidence that either item was intended for a prisoner or that the respondents acted jointly.

The central issue was whether the statutory prohibition on bringing, throwing or otherwise conveying a List B article into or out of prison required proof of mens rea.

Disposition

1. The Crown’s appeal was dismissed. Section 40C(1)(a) of the Prison Act 1952 requires mens rea and does not create an offence of absolute or strict liability.

2. The court applied the overriding presumption that mens rea is required for a criminal offence. The presumption is founded in constitutional principle. It can be displaced only by express statutory language or a compelling necessary implication. The absence of an express mental element, even where other provisions state particular mental elements, does not meet that test.

3. The language and structure of the prison-article offences reinforced that conclusion. Section 40C(1)(a) uses the same language as section 40B(1)(a), which concerns List A articles and carries a potential ten-year sentence. It would be counter-intuitive for that serious offence to impose absolute liability. The verbs “brings, throws or otherwise conveys” also point away from liability without a voluntary and knowing act.

4. The express intentions and knowledge requirements in sections 40C(1)(c) and (d), and in the List C offences, were additional and more specific mental elements. They were consistent with, rather than destructive of, the underlying presumptive requirement of mens rea in section 40C(1)(a). The court rejected the argument that a comparison with the List C provisions compelled the opposite conclusion.

5. Applying the principles restated in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] AC 1, the offence was truly criminal. It was unlike a regulatory health-and-safety offence for which strict liability may promote vigilance. Difficulty in disproving ignorance or forgetfulness did not justify excluding mens rea.

6. The required mental element was not knowledge that the article was a listed prohibited article. Following the formulation used in B (a minor) v Director of Public Prosecutions [2000] 2 AC 428 and R v K [2001] UKHL 41, the prosecution had to prove the absence of an honest belief that the defendant was not bringing the article into the prison.

• Court of Appeal (Criminal Division): The Crown’s appeal was dismissed: [2009] EWCA Crim 2615.
• Crown Court at Chelmsford: At a preparatory hearing on 25 February 2009, HHJ Goldstaub QC ruled that the offence under Prison Act 1952, section 40C(1)(a), was not one of absolute or strict liability. The judge granted the Crown leave to appeal on 11 May 2009.