Cyber-Ticket Touting as Fraudulent Trading

Abstract

This note examines the case of R v Hunter and argues that the offence of fraudulent trading requires the business itself to be used as an instrument of fraud. It is submitted that this offence is a financial offence found in the Company Act 2006 (with a corresponding offence in the Fraud Act 2006), because an integral aspect of a business is that it generates profits or at least its raison d’être is to generate profit. Many businesses run at a loss, but that is not the raison d’être of a business. If it is accepted that it is the business itself that needs to be the instrument of fraud, then there is no need to consider the elements of the incidental frauds (false representations, deception etc) used by that business to maintain itself as an instrument of fraud. It is also submitted that the decision in R v Hunter is erroneous to the extent it suggests that wilful blindness is sufficient mens rea.

Introduction

This paper will look at the recent case of R v Hunter ¹ (Green, LJ, delivered the judgment of the Court, in which Macur, LJ and Cheema-Grubb J, concurred) which raised questions about the application of the offence of fraudulent trading to commercial scale cyber-touting. The use of bots and algorithms to deceive computers into “bulk selling” tickets that are not for “bulk sale” could be brought within the purview of the offences found in ss 1 and 2 of the Computer Misuse Act 1990, ² but that approach has not thus far been taken. There are plethora of offences criminalising ticket touting itself such as s 166 of the Criminal Justice and Public Order Act 1994 and The Ticket Touting (Designation of Football Matches) Order 2007. Third parties are also proscribed from running advertisements for ticket touts (s 53 of the Violent Crime Reduction Act 2006). Hunter and Smith were not charged with any of these offences.

The National Trading Standards (NTS) brought a case against Hunter and Smith (the directors of BZZ Ltd) on the grounds that the practice of “bulk buying” tickets from primary ticket sellers (PTSs) and selling them to individual consumers at inflated prices on secondary ticket websites (STWs) was fraudulent trading. ³ Hunter and Smith purchased popular sporting and entertainment tickets in bulk from PTSs who had set restrictions on who could buy their tickets and validly resell (transfer) their tickets. If these restrictions were breached, the primary ticket seller reserved the right to cancel the ticket and refuse the ticket holder entry to the event. As agents, the primary ticket sellers were required to respect the restrictions which their principals (the event organisers) had imposed, and which attached to the tickets sold via their websites. Primary ticket sellers are agents and are paid a commission for selling the tickets for the relevant event organisers. Cyber-touts are not authorised agents selling tickets for a reasonable commission, but instead manipulate the primary ticket market so that they are able to resell tickets at many times their original face value on the secondary ticket market.

The term cyber-touting in this paper refers to the use of “bots” and “algorithms” ⁴ to manipulate primary ticket markets to “bulk buy” tickets against the anti-touting restrictions placed on tickets. ⁵ Hunter and Smith (the cyber-touts in the case at hand) used software and bots to aggressively bypass the primary ticket sellers’ internet security measures (i.e., technology that tries to ensure only individual consumers are purchasing tickets for personal use). Bots allow cyber-touts to act faster than humans to crowd out consumers trying to buy for personal use. They allow the cyber-tout to mimic multiple identities to circumvent restrictions against bulk buying. The use of software and bots to circumvent CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart), which is a security device that provides a challenge-response authentication filter to distinguish humans from bots, clearly is “use” and “possession” of an article for fraud contrary to s 6 of the Fraud Act 2006. By bypassing the CAPTCHA filter the cyber-tout is able to circumvent the purchase quantity limits and personal use restrictions (i.e., pretend the purchase of thousands of tickets isn’t a single bulk (commercial) purchase for its business, but is thousands of individuals buying independently of each other for personal use). ⁶ Hunter and Smith's business model was not complex, it was the simple practice of buying tickets from authorised “primary sellers” and then reselling them on a “secondary market” for a significantly higher price than their original face value. By manipulating the primary market, Hunter and Smith were able to make sure that the tickets would only be available on the secondary market. ⁷

In R v Hunter there were specific contractual restrictions against bulk purchases, but since 2018 this sort of cyber-touting has been prohibited by specific provisions. Reg 3(3) of The Breaching of Limits on Ticket Sales Regulations 2018 provides: “It is an offence for a person to—(a) use software that is designed to enable or facilitate completion of any part of a process within regulation 2(b); and (b) do so with intent to obtain tickets in excess of the sales limit, with a view to any person obtaining financial gain.”

The decision in R v Hunter does not apply the fraudulent trading offence to cyber-touting merely because it involves a violation of commercially created terms and conditions against bulk purchases of tickets from primary ticket sellers. The latter would be no more than a breach of contract. The decision invokes the fraudulent trading offence because it adequately covered the cyber-touting business concerned. BZZ Ltd traded for no other purpose than to manipulate the ticket market for financial gain. ⁸ The use of bots was fraudulent for the purposes of the fraudulent trading offence because they were used to manipulate the consumer market and prevent genuine consumer transactions from taking place in an open market. This was done for gain and the overcharging not only caused a loss to some consumers (the lost sum being the overpayment), but also exposed consumers to a risk of loss. The manipulation of the primary ticket market was BZZ Ltd's raison d'être—hence, BZZ Ltd had no other reason for existing other than to fraudulently manipulate the primary ticket market for gain. The dishonest and fraudulent manipulation of the primary ticket market was causative of the business's existence, not collateral to it. ⁹ Reg 3 of The Breaching of Limits on Ticket Sales Regulations 2018 demonstrates that the current law and policy is against people using bots to manipulate the primary market for event tickets to the detriment of genuine consumers.

The Issues

The National Trading Standards submitted that Hunter and Smith had used “dishonest and fraudulent tactics” to purchase tickets “in bulk” from primary ticket sellers such as Ticketmaster, AXS and Eventim. ¹⁰ I have argued elsewhere that, algorithms and software that are used in fraud including to “front run” and “manipulate” financial markets, are articles for use in fraud contrary to s 6 of the Fraud Act 2006. ¹¹ The fraudulent trading included allowing BZZ Ltd to trade for the sole purpose of manipulating primary ticket markets with the ulterior intention of acquiring tickets to sell on secondary ticketing websites at grossly inflated prices. Since the primary ticket sellers had put in place processes to stop cyber-touts from bulk purchasing tickets, false representations had to be made to the primary seller's computers for those computers to generate the tickets. In this sense, Hunter and Smith could simply have been charged with fraud by false representation contrary to ss 1 and 2 of the Fraud Act 2006. ¹²

There were also implied false representations to the end consumers that the tickets were fully valid and transferrable. There was the further implied representation to the end consumers that tickets were in existence and thus their existence was not contingent on the vagaries of speculative selling. ¹³ Hunter and Smith used close to 100 different names and postal addresses. They had close to 300 e-mail accounts. All these articles were used to give the false impression that they were not bulk buying but were genuine consumers buying for personal use. It was this false representation that allowed the tickets to be released to them by the primary ticket seller's computers. All these tactics were used to dishonestly conceal the bulk buying.

The important issues arising in R v Hunter ¹⁴ are as follows: :

“Issue 1: The application under section 23 CAA 1968 to adduce fresh evidence of the arrangements between touts and primary and secondary ticketing sites to encourage and facilitate the purchase and resale of tickets at a premium.

Issue 2: The application of Section 78 PACE to the admissibility of emotive and prejudicial evidence about the Ed Sheeran charity concert and the Ariana Grande memorial concert.

Issue 3: The relationship between the statutory offence under Section 993 CA 2006 and the common law offence of conspiracy to defraud.

Issue 4: The components of the offence under Section 993 CA 2006: (i) whether there has to be deception or an intention to deceive; (ii) whether there has to be a victim who suffers actual or intended harm?

Issue 5: The ‘fairness’ and hence enforceability under the CRA 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity.

Issue 6: The status in law of a ‘ticket’.

Issue 7: The scope effect and operation of the doctrine of ‘equities darling’.”

Issues 1 and 2 were rejected by the Court of Appeal with very little analysis being provided, because it was clear that there was no evidence to support those appeal points. Green LJ concluded that cyber-touting is a highly emotive subject and that some tickets were for charity concerts did not add sufficient sentiment to bias the jury. ¹⁵ Therefore, those issues will not be analysed in this note. The core issues that will be analysed are issues 3, 4, 5, 6 and 7 since they raised important issues of substantive criminal law. Issue 5 could have been dismissed as an appeal ground in a couple of lines given that the restrictions against bulk buying were not designed to prevent fair competition between “primary sellers”, but to protect “consumers” from cyber-touts. There is no doubt there are anti-competitive practices in the primary ticket market, ¹⁶ but anti-competitive practices that limit who can be a primary ticket seller ¹⁷ is entirely different from manipulating the consumer market. Green LJ's analysis of issue 5 was jumbled and superfluous. Primary ticket sellers sell tickets at the set market value in the primary ticket market for an authorised commission, they are not authorised to overcharge consumers. Hence, even if Hunter and Smith had been unfairly excluded from acting as primary ticket sellers, they merely lost the chance to sell tickets at market value and obtain a commission for their sales, not the chance to grossly overcharge consumers for tickets in the secondary ticket market. This issue will not be analysed in depth in this paper, because the real issue was about fair competition for consumers and the fraudulent trading offence was applied to achieve that end.

The status in law of a ‘Ticket’

It is worth discussing issues 6 and 7 briefly since they relate to the substantive criminal law issues raised in the case. It was contended on behalf of the appellants that when a ticket was acquired by a bona fide purchaser for value it transferred all the “rights but not … the burdens, that otherwise attached to entry to the venue.” ¹⁸ The contention was that “the doctrine of ‘equities darling’ operated as a device to free the appellants from the shackles of the restrictions ostensibly imposed by event organisers and to ensure that when they sold tickets, via secondary ticket websites, to end concerns those consumers acquired the tickets free of restraints since they were bona fide purchasers for value acting in good faith.” ¹⁹ The Court of Appeal rightly rejected this contention, ²⁰ because the doctrine of “equities darling” applies only to real property transactions ²¹ as opposed to revocable licences. ²² Even if this argument had validity, it would not have answered the fuller allegation of fraud—i.e. the use of bots to “front run” ²³ genuine consumers seeking tickets in the primary ticket market for fair market value for personal use. It was held that the doctrine of equities darling “seeks to allocate risk as between the two innocent parties and is not a device to scrub out the reprehensible and dishonest intermediate conduct of the fraudster. That person's conduct remains dishonest – and criminal - even though equity has to resolve the allocation of property ownership rights as between the fraudster's innocent victims.” ²⁴

Tickets in the hands of the consumers who intend to use them to see a show/event are revocable licenses and thus are not property. ²⁵ The owner of the theatre or venue has no property right concerning the mere use of that venue, ²⁶ but the performers have property rights. ²⁷ In R v Hunter, Green LJ cites Rugby Football Union v Viagogo Ltd ²⁸ in support of the finding that the tickets are merely contractual licenses. The ticket is simply evidence of the fact that a “service” has been paid for and in most cases, it will be nothing more than a digital barcode on a smartphone. It is akin to a valuable security. “Value is established, then, with regard to the manner in which the document empirically evidences and relates to an economic amount. Valuable securities, pieces of paper of no intrinsic worth, are thus converted into things valuable in themselves.” ²⁹ The customers were not purchasing goods but were paying for a service. The fraudsters were not trying to acquire the service for themselves contrary to s 11 of the Fraud Act 2006, but were selling the service at a significant mark up. ³⁰ The tickets themselves need not concern us further, because the property interests affected by the “fraudulent trade” was the money consumers lost when they overpaid for the tickets or risked having a ticket become valueless. A ticket risked becoming valueless either because it did not exist due to speculative selling or through it being cancelled upon the venue discovering it was sold to the victim (end consumer) in contravention of its anti-touting terms and conditions.

The Offence of Conspiracy to Defraud's Relevance

The appellants’ defence focused on the scope of the fraudulent trading offence. The offence in s 993 of the Company Act 2006 can be committed in two ways. Primarily, the offence aims to prevent creditors from being defrauded, but trading aimed at other fraudulent ends is also caught. In theory it is totally unlimited in the types of “economic” fraud it covers, though in practice it probably adds little to the criminal law given the reach of the other fraud offences found in the Fraud Act 2006; the Insolvency Act 1986 and the Company Act 2006. ³¹ The conduct element is made out as long the parties carry on a business. Other organisations such as private members clubs and non-profit organisations are not covered. It is aimed at for profit business enterprises. There is nothing harmful or wrongful about carrying on a business in itself; the gravamen of the offence is to use the “business itself” as an instrument of economic fraud.

It was argued on behalf of the appellants that the fraudulent trading offence in s 993 of the Company Act 2006 (see also s 9 of the Fraud Act 2006 apropos unincorporated businesses) was constrained by the jurisprudence concerning the common law offence of conspiracy to defraud. It was submitted that under the common law offence of conspiracy to defraud an ‘“essential’ component was proof of an intent to defraud and as to this there were only three possibilities: (i) an intent to defraud a non-creditor by deception; or (ii), an intent to defraud another by deceiving him/her into acting contrary to public duty; or (iii), the deliberate putting of another person's property interests in jeopardy”. ³² These arguments are surprising, because the authorities make it clear that deception is not needed to establish either the fraudulent trading offence or to make out the offence of conspiracy to defraud. ³³

Even if s 993 did require deception that would not have helped Hunter and Smith, because they used bots to make false representations to “bulk buy” tickets that the primary sellers would not have sold in bulk but for the deception. ³⁴ The incidental means give rise to other forms of liability, such as fraud by false representation and using articles (bots) for fraud, but for the fraudulent trading offence the focus is on the way the business itself is used as an instrument of fraud. It is not the incidental fraudulent means that matter (deception, false representations made with the use of bots etc), it is the fact that the “business itself” was an “instrument of fraud”.

Notwithstanding that, the appellants could have been liable for conspiracy to defraud based on the agreement to use “the business” for the sole purpose of manipulating the primary ticket market to crowd out genuine consumers with the aim of forcing them to purchase from the secondary ticket market. ³⁵ The fraudulent trading offence has its own jurisprudence that is as old and developed as the conspiracy to defraud jurisprudence. ³⁶ The conspiracy to defraud precedents place no limitations on the statutory offence of fraudulent trading. ³⁷ Furthermore, since Hunter and Smith were charged with acting for a “fraudulent purpose”, not with “defrauding creditors”, it was not necessary to consider the meaning of “defraud”. ³⁸ What would have been of more relevance would have been a discussion of the history of s 993, ³⁹ because statutes that are in pari materia ought to be construed together.

Unlike the American law, English law does not require the scheme to infringe a recognised property right. ⁴⁰ Perhaps the primary ticket sellers’ exclusive rights to sell the tickets were of a proprietary nature, ⁴¹ but that angle was not considered in this case. Even if that had been argued, the jurisprudence on the concept of “defraud” defines the concept so widely that it would have been of no assistance to the appellants. ⁴² Green LJ overlooks that the fraudulent purpose needs to be an “economic” purpose, even if the gain is sought indirectly from obtaining a licence or avoiding taxation. ⁴³ Nonetheless, fraudulently carrying on a business in an attempt to seek a financial gain need not involve an interference with the proprietary rights of others. It is worth noting that any unpaid tax from a business trading solely to avoid taxation is not property belonging to another; rather the tax evader is a trustee of the money owed to HMRC and thus will be liable for tax evasion, not for theft. ⁴⁴

The Need for the Fraudulent Propose to be an Economic Purpose

Indirect economic gains are sufficient, so if a business trades for the purpose of fraudulently avoiding taxation or to obtain a licence that has indirect economic value, the offence is made out. ⁴⁵ The business itself needs to be the instrument of fraud, even though the business itself may adopt many methods (bots, algorithms, false representations etc) to achieve its fraudulent purpose. Because the business itself must trade fraudulently, and businesses exist solely to make financial gains, this offence only targets economic fraud. Suppose X runs a for profit “life drawing” school so that X will be able to secretly film the nude modules for X's personal sexual gratification. ⁴⁶ Suppose too that the economic gains are incidental to X's fraudulent purpose because the business is run solely for the purpose of seeking sexual gratification. The models are paid in full and suffer no financial loss from being secretly filmed, so the business does not trade to make money it could make only where the business itself is a fraudulent instrument. X is not liable for fraudulent trading because X's trading did not involve economic or financial fraud. ⁴⁷ The offence in s 993 is a financial crime and therefore the fraudulent purpose must be related to economic fraud. ⁴⁸ This crime appears in the Company Act 2006 because it aims to prevent financial frauds, not non-financial frauds. A better way of understanding the offence is to understand that the defendant must trade fraudulently to achieve an economic purpose. The fraudulent trading is the dishonest means/instrument, but the purpose will always be economic. Therefore the cases have taken an ulterior intent approach; ⁴⁹ the defendant trades fraudulently with the ulterior intention of defrauding creditors for the defendant's economic benefit or fraudulently trades to benefit economically from non-creditors. ⁵⁰

If the organisation is a non-profit organisation funded by public donations and staffed by pro bono employees, then its raison d'être is not business/trading. Wikileaks claims to be such an organisation and its main purpose is to (dishonestly) leak the secrets of others (dishonest in that its volunteers act without the consent of the secret holder). Regardless of any defences (legitimate journalism and whistleblowing) that may make such conduct justifiable, if all its leaks involve deception, subterfuge, and dishonesty rather than freedom of information requests etc., it exists for a fraudulent purpose. That a non-profit organisation has all the characteristics of a business does not make it a business. There may be better hypotheticals, but these are sufficient to demonstrate the point that an organisation or business can be carried solely to achieve a non-economic fraudulent purpose and if it does it cannot be said to be trading for a fraudulent purpose. Fraudulent trading in s 993 is a financial crime and it is very clear neither it nor any of its predecessors intended to catch non-economic fraudulent purposes.

In R v Hunter, Green LJ fails to emphasise that while the fraudulent purpose need not to be to interfere with proprietary rights, it must be inherently financial/economic. ⁵¹ The offence is not aimed at isolated acts of fraud that are incidental to the carrying on of the business. ⁵² All sorts of isolated acts of fraud might be perpetrated through a corporate vehicle. The offence targets situations where the substantial reason for trading is to facilitate economic fraud. Fraud that is incidental to the trading, rather than substantially causative of it, is insufficient. ⁵³ A single act of fraud is sufficient when it can be demonstrated that it was substantially causative of the trading. ⁵⁴ The fraud for the purposes of the speculative selling allegation put forward in Count 4 in R v Hunter rested on consumers being exposed to a risk of loss. This is a more controversial area, because speculative selling is routine in business and will not necessarily involve fraud. ⁵⁵

Did Hunter and Smith carry on the business as an instrument of fraud for no other purpose than an economically fraudulent purpose? It was economically fraudulent because the economic end could only be achieved by the fraudulent trading. The trading was the fraudulent means. All the incidental fraudulent means used were aimed at fraudulent trading. (1) Bots to manipulate the market so genuine consumers would not be able to compete in the primary market to obtain tickets at fair market value, but rather would be forced to purchase from secondary markets. (2) False representations made to the primary seller's computers that BZZ Ltd was not a bulk buyer acting in contravention of the terms and conditions against bulk buying, but rather was individual consumers buying for their own personal use. (3) The implied false representation to consumers that the tickets were fully valid and not subject to the risk of cancellation. And, the implied representation that the tickets were not the product of fraud and overcharging resulting from market manipulation. Hunter's and Smith's trading was the fraudulent fulcrum used to make financial gains and expose consumers to the risk of loss.

No Need to Cause a Loss or Make a Gain

The offence in s 993 of the Company Act 2006, while obviously aimed at protection of property interests does not expressly limit its application to property in the way that the Theft Act 1968 ⁵⁶ and the Fraud Act 2006 ⁵⁷ do. For the purposes of s 993 of the Company Act 2006, there is no need to demonstrate that the defendant intended to obtain surplus property, it is enough to demonstrate that they used dishonest means to acquire or attempt to acquire an economic advantage that they were not entitled to acquire. ⁵⁸ Gain means acquisition whether at a profit or not, ⁵⁹ and regardless of whether more than adequate pecuniary compensation is provided. The fraudulent trading offence jurisprudence takes the same approach. There is no need to demonstrate that the defendant caused an actual financial loss to another person. It is enough to demonstrate that they dishonestly intended to defraud their creditors ⁶⁰ or that they used the business primarily as an instrument of fraud to obtain or attempt to obtain an economic benefit. ⁶¹

The Mental Element for Fraudulent Trading

Green LJ's judgment is erroneous to the extent it holds that wilful blindness ⁶² is sufficient mens rea for the fraudulent trading offence. During the course of a winding up or liquidation/administration of a company, if there is evidence that the company carried on with the intent to defraud creditors or for some other fraudulent purpose, the fraudulent trading offence may be applicable. An administrator can also apply to the court to obtain a contribution from all those who were knowingly involved in carrying on the business in such a manner. ⁶³ The requisite fault is the same regardless of whether liability for a contribution is being established or liability for the offence is being established. Some of the earlier cases concerned liquidators making contribution applications, but these cases provide clear rulings on the mental element required for fraudulent trading liability. The offence in s 993 like its predecessors is an ulterior intent offence. ⁶⁴ In Hardie v Hanson, ⁶⁵ Sir Owen Dixon, C.J. with reference to s. 275 of the Companies Act 1929, an identically worded Australian provision, said:

“The first is that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose.….This provision of course makes it quite certain, even if otherwise there could be any doubt, that the intent to defraud creditors must be express or actual and real: nothing constructive imputed or implied will do. As if still further to confirm the fact that the provision is directed against persons really actuated by a conscious fraudulent purpose…”

Kitto J said:

“An actual purpose, consciously pursued, of swindling creditors out of their money had to be established… It was not enough for the respondent to prove that the appellant acted with blameworthy irresponsibility, knowing that he was gambling (in effect) with his creditors’ money as well as his own…” ⁶⁶

The Supreme Court has repeatedly held that where a statutory provision is silent on the mental element that it needs to be read as requiring subjective fault. ⁶⁷ In the case of s 993, it is not silent but expressly states:

“(1) If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who is knowingly a party to the carrying on of the business in that manner commits an offence.”

The word “intent” governs the alternative actus reus elements. If Parliament had wanted to create an offence of direct intention for defrauding creditors but an offence of mere recklessness for carrying on a business for other fraudulent purposes, it would have expressly provided for such an offence. The offence does not require the defendant to know only that there is a risk of X, but to actually know X. ⁶⁸ This is a modern statute (enacted in 2006) and the jurisprudence on mens rea was mature at the time it was passed. ⁶⁹ It is clear that the defendant is liable only if the defendant carries on the business with the intention of defrauding creditors or alternatively carries on the business fraudulently with the intention of achieving some other economic gain.

Conclusion

I have argued elsewhere that algorithms that power AI, bots, etc can be articles for use in fraud for the purposes of ss 6 and 7 of the Fraud Act 2006. R v Hunter is the first English case to treat bots as articles for use in fraud. Bots are necessary tools for manipulating the primary ticket market, because without them it would be impossible for cyber-touts to outpace genuine consumers in the race for event tickets. Bots allow cyber-touts to act faster than humans and to crowd out consumers buying for personal use. Insomniac browsers and Roboform Software are articles that can be used in fraud, but in R v Hunter they were incidental means since the business itself was the core instrument of fraud.

As for the fraudulent trading offence, R v Hunter is an important decision in that it demonstrates that the offence will be invoked in cases where the conduct is not simply aimed at defrauding creditors. While the case is not clear on what fraudulent purposes count, it has been submitted that while there is no need to demonstrate the fraud interfered with a proprietary interest, it is necessary to demonstrate that the fraudulent trading was aimed at economic ends. Not to imply that limitation into what is clearly a financial crime would make the offence too vague. Its reach would be unlimited. The fact that it is a financial crime aimed at using businesses as instruments of fraud implies the offence was not intended to deal with non-economic frauds. A business that trades for a fraudulent purpose that is not economic is not caught by this financial crime. The fraud needs to be causative of the trade and not be merely incidental to it. It is submitted that to the extent that Green LJ suggests non-economic frauds are covered, the decision in R v Hunter is erroneous.

The decision in R v Hunter also runs into error by suggesting wilful blindness is sufficient mens rea. In almost identically worded offences in pari materia the courts have held that direct intention is required. The statute itself expressly provides: “If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose…” It does not state: “If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or [recklessly acts] for any fraudulent purpose…” Wilful blindness is just another way of saying the defendant was subjectively aware of the risk, but ran it anyway. Hence, it is not “objective” blindness, but “wilful” blindness. ⁷⁰ It is submitted that the settled law and the clear words of the statute require direct intention and that Green LJ's obiter on the mental element ought not be persuasive in future decisions.