Contribution
My Lords, the first part of day 2 in Committee deals with organised immigration crime offences. We will hear later about safeguards and modern slavery, and will return to the question of what might constitute a reasonable explanation on the part of an irregular migrant, but we begin with Amendments 31 and 41 in my name, which deal with mens rea. I am also happy to be associated with Amendments 32, 42 and 53, which are grouped with these. The Committee should note too that these amendments are linked to the next group, beginning with Amendment 33. I will keep some of my powder dry in suggesting why the Minister should also give them a fair wind or at least a promise of further consideration.
The Committee will know that the amendments in this and the subsequent group are among the recommendations contained in the Joint Committee on Human Rights report on the Bill, appearing in the report as amendment 3. I was grateful to the Minister for his assurance that, before we reach the next stage of the Bill in September, there will be a considered response to the JCHR report and its recommendations.
As a grammar school boy from a council estate with a mother whose first language was Irish rather than English, I remember being daunted as an 11 year- old by my first lesson in Latin. Later in life I read with some amusement that Winston Churchill questioned the use of the vocative case “O table” when learning the word mensa. His teacher’s explanation, that it was used to address a table, was met with Churchill’s practical, albeit impertinent, response, “But I never do”. However, I think the great man would have seen much more practical use for the words mens rea, meaning guilty mind in Latin.
Linguistics to one side, my barrister daughter assures me that it remains a crucial concept in criminal law. It refers to the mental state of a defendant at the time of committing a crime, specifically their intention, knowledge or recklessness regarding the prohibited act. That mental element, along with the physical act, actus reus, must be proven for a person to be found guilty of a crime.
My Amendment 31 would leave out “knows or suspects that” and insert
“intends that, or is reckless as to whether”.
This amendment would give effect to the JCHR’s recommendation that the mens rea threshold for Clause 13 ought to be one of intention or recklessness. Amendment 41, which is amendment 4 in the Joint Committee report, appears at Clause 14, page 8, line 9. It would leave out “knows or suspects that” and insert
“intends that, or is reckless as to whether”.
Amendment 41 would also give effect to the JCHR recommendation that the mens rea threshold for Clause 14 ought to be one of intention or recklessness. It would have the same effect as Amendment 31, but in a different clause.
Put these amendments into the context of Clauses 13 to 17, which create three new precursor offences to target the activities of facilitators and organised criminal gangs that look to profit from organised immigration crime. These amendments seek to raise the mens rea threshold for which someone might be caught by the offence of supplying, offering to supply or handling a relevant article for use in the commission of certain immigration offences. The words in Clause 13, “knows or suspects that”, are a lower mens rea threshold compared with intention and recklessness, which is what the JCHR recommendation is urging us to substitute.
The JCHR report notes that
“comparable precursor terrorism offences have a higher mental element, requiring intention to commit or assist in the commission of terrorist acts”.
In paragraph 17 of the JCHR report, Liberty provides an example in its written evidence. It illustrates how a woman fleeing persecution who has had her phone stolen, and her British grandfather who provides her with a phone to help her—despite suspecting that she will use it to contact smugglers—might both be caught by this offence. In paragraph 19 of the JCHR report, ILPA, the Immigration Law Practitioners’ Association, provides a further example:
“A well-meaning individual providing voluntary humanitarian assistance in Calais hands out SIM Cards. A father receives one and passes a mobile phone and the SIM card to his daughter”.
They may both be prosecuted for having supplied a relevant article.
Paragraph 38 of the JCHR report concludes that
“the breadth of these precursor offences”
captured in Clauses 13 to 17
“poses a risk of unintended harms to those who are most vulnerable”.
These relevant amendments seek to mitigate this risk by seeking greater circumscription and more robust safeguards.
Paragraph 50 of the JCHR report similarly concludes that the precursor offences captured in Clauses 13 to 17
“create uncertainty, extend beyond the Government’s stated … aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty”.
I hope the Minister, the noble Lord, Lord Hanson, agrees that some fine-tuning, while not preventing prosecutions, could strike a better balance. I commend the amendments to the Committee and beg to move.