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The Serious Crime Act 2007 and mens rea

Posted by James Hammerton @ 5:57 pm on 19 January, 2008.
Categories political liberties, democracy and the rule of law, British politics.
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This post is a belated response to a comment left by “Les” in the comments on this article, who wrote:

Under S45, the prosecution has to show that you BELIEVED that the anticipated offenced WOULD occur and that you BELIEVED that your act WOULD assist or encourage its commission, thus establidhing[sic] Mens Rea.

Without S47, the judge could direct the jury to return a guilty verdict. With S47, if you demonstrate that your act was reasonable, the judge should direct the jury to return a not guilty verdict.

I do not agree that the conditions in S45 are necessarily sufficient to establish mens rea. I raise two counter points:

  • Firstly, why provide the defence in S47 if the conditions in S45 are sufficient to establish mens rea?
  • Secondly, consider the following. If I sell a knife to you there’s a risk you might use it to commit an offence. Of course knowing there is this small risk does not imply that I believe you will commit the crime and my selling a knife to you in the absence of any reason to believe you will commit a crime with it is unlikely to meet the conditions in S45.

    But suppose I sell knives to the general public. If I sell a large enough volume of knives it’s virtually guaranteed that one or more of them will be used to commit a crime. Therefore isn’t anyone selling knives to the public, on a scale large enough that its virtually guaranteed that some of the knives will be used in crime and who also realises that fact, in a position of (a) believing that offences will occur and (b) believing their actions will assist in their commission?

    Now of course section 47 can be used by anyone selling knifes to argue that their actions are reasonable — one would hope a court would agree that it’s unreasonable to prevent people from selling cooking utensils after all!

    But my point is that a person in this position has the burden of proof reversed. It should be the up to the prosecution to prove negligence or recklessness on the part of this knife seller, not the knife seller to prove his actions were reasonable. And in this case it seems to me that the conditions in S45 do not establish mens rea.

    Note that similar arguments to the above could be applied to selling cars, computers, hammers, tools, software or just about anything!

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