Cultural Property (Armed Conflicts) Bill [Lords] — House of Commons, 2016-10-31
Topic: Law and Crime
Edward Garnier (Conservative, Centre-right): One often sees the type currently drafted into clause 17 when a defendant has to rebut a presumption—the possession of certain items in sexual offences or drugs offences. It is also to be found under certain rarely used disclosure offences, such as under section 119 of the Companies Act 2006—something that we speak about so frequently in the clubs and bars of Market Harborough. As regards the substantive criminal law and the making of a substantive criminal offence, my hon. Friend is right to say that this is a rare and wholly unusual distinction, and I quietly urge the Government to think again As drafted, this provision abandons the principle that it is the defendant’s state of mind that must be "criminal", whether defined in terms of belief or even suspicion, for an objective test: whether he had reason to suspect. What may arise from an offence defined in that way can be quickly described. The defendant may be offered property which, because of the circumstances, he may have reason to suspect may be prohibited. Just because he wishes to proceed with caution, and to avoid committing a criminal offence, after sensible inquiry and investigation he may in good faith decide that his suspicions have been allayed and proceed to deal in the property. For a defendant acting in good faith to be convicted of an offence of dishonesty is a novel proposition. It may be suggested that the offence is not intending to apply to such an individual, but only to the individual who, notwithstanding any investigations he may make, turns a blind eye to reasonable grounds for suspicion, but that is not what the clause says. The offence can and should be defined in terms of the defendant’s belief or suspicion, and currently it is not. Surely the question to ask is whether the defendant did or did not believe, or did or did not suspect. The more powerful the evidence that he had reason to suspect, the more likely it is that the jury would conclude that he did indeed believe or suspect, and that the offence is proved. In short, where the defendant did indeed have "reason to suspect", that would provide the evidence to establish that he did indeed believe or suspect that he was dealing in prohibited property. That however goes to the evidence available to prove guilt; it should not define the offence It would be unusual for an offence of dishonesty to be created that did not focus on the defendant’s personal state of mind. It would also be unusual to create two offences in a single provision which make provision for separate and distinctive forms of criminal intent: knowledge, which is entirely subjective; and reason to suspect, which is not. Any summing up in an indictment which alleges the two offences as alternatives would not be straightforward. Worse still, it would be unwise, and it would make for significant complexity in any trial for two statutes with the same objective—the protection of the cultural heritage of every nation—not to define criminal intent in exactly the same way Section 1 of the Dealing in Cultural Objects (Offences) Act 2003 states—