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"Reasonable excuse" being wrongly interpreted in English criminal courts. Miscarriages of justice likely to have occurred.

1/12/2024
I was recently involved in a case where the offence involved failing to perform a task without a reasonable excuse. "Reasonable excuse" is commonly used in breach/failure to comply offences, as well as tax law. In Clean Car Co Ltd v C&E Commissioners [1991] VATTR 234 Judge Medd QC described reasonable excuse thusly
Now the ordinary meaning of the word ‘excuse’ is, in my view, that which a person puts forward as a reason why he should be excused. A reasonable excuse would seem, therefore, to be a reason put forward as to why a person should be excused which is itself reasonable.
A reasonable excuse requires that a person actually intended to comply - but otherwise any excuse for failure could in theory by a reasonable excuse. However, a notion exists within the criminal courts that a reasonable excuse excludes mistakes, error or negligence on the part of the responsible party. This view was put forward in Norwich Crown Court by a judge and 2 experienced barristers. Cited was Garnmoss Ltd (/a Parham Builders) v Revenue & Customs. [2012] UKFTT 315
the Act [VAT Act 1994, s59, S71] does not provide shelter for mistakes, only for reasonable excuses.
However this is a case in the First-tier Tax Tribunal, the lowest court in tax cases, and cites no higher court, only the VAT Act 1994, which makes no such statement. Christine Perrin v The Commissioners for HM Revenue and Customs [2018] UKUT 0156 in the Upper Tax Tribunal makes reference to Clean Car Co Ltd, indicating that this is the position authorised by the Upper Tax Tribunal, not Garnmoss Ltd. We see a similar story R v Nicholson [2006] 2 Cr App R 30 In Oxford Crown Court, Judge Corrie ruled that Breaching an Anti Social Behaviour Order without reasonable excuse was
an offence of "strict liability" and that the qualification of "without reasonable excuse" should be narrowly construed so as exclude ignorance or forgetfulness and, seemingly, misunderstanding of its clear terms
The Court of Appeal, Criminal Division overruled on appeal, referencing R v Evans [2004] EWCA Crim 3102, also in the Court of Appeal
the prosecution will have to prove that he or she did not have reasonable excuse for the prohibited conduct. Acting under a reasonable misapprehension as to the scope or meaning of the order is capable of being a reasonable excuse for acting in a manner which is prohibited by the order.
It seems there is little doubt that the higher courts agree with an interpretation at least along the lines of Clean Car Co Ltd. The issue then is why the error persists among the legal community, with Crown Court barristers and a judge being part of the mistake. With the legal issue being settled by past cases, one would hope that barristers and judges today understand the law, but it seems that this is not the case. The concern then becomes, how many defendants were advised by their solicitors and barristers that they had no defence and should plead guilty? How many defence teams, or defendants acting for themselves were told that they could not present their defence, and pleaded guilty, or were prevented from giving their defences to the jury? It seems likely that there have been miscarriages of justice, and that there will be more. "Reasonable excuse" features in the following offences:
  • Breach of a Community Order
  • Breach of Anti Social Behaviour Order (ASBO)
  • Breach of Sexual Harm Prevention Order (SHPO)
  • Breach of Sexual Offences Prevention Order (SOPO)
  • Failure to notify in accordance with the Sexual Offences Act 2003
  • Failure to notify in accordance with the Counter-Terrorism Act 2008
Offensive Weapon related offences also commonly involve reasonable excuse, however there is further case law that appears to be specific to these cases. Disclaimer: I am not a lawyer, this is not legal advice.

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