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Cite as: [1996] IESC 7, [1996] 3 IR 267

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Shannon Regional Fisheries Board v. Cavan County Council [1996] IESC 7; [1996] 3 IR 267 (30th July, 1996)

Supreme Court

Shannon Regional Fisheries Board v Cavan County Council


30 July 1996


1. This is an appeal by Cavan County Council (hereinafter called the appellant) against the decision of the High Court (Murphy J) on a consultative case stated by Desmond Hogan, a judge of the District Court, pursuant to s 52(1) of the Courts (Supplemental Provisions) Act, 1961.

The case stated concerns two summonses brought by the Shannon Regional Fisheries Board (hereinafter referred to as the Board) against the appellant. The summonses were in respect of identical offences alleged to have been committed on the 9 December 1991 and on the 13 December 1991. The relevant part of the summons in respect of the offence alleged to have been committed on the 9 December 1991 is as follows:

"That you the said defendant on the 9 day of December 1991 at Derrylurgan within the Court area and district aforesaid did:-

1. Throw, empty, permit or cause to fall into waters of the Pound stream a tributary of the Mount Nugent river deleterious matter contrary to the provisions of section 171(1)(b) of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Act, 1962, the Fisheries Act, 1980 and the Local Government Water Pollution (Amendment) Act, 1990."

Each of the summonses contained a second charge in respect of which a direction was granted by the District Court judge and no question is raised in regard to it in the case stated. In respect of count No 1 in each summons, being the count cited above, the learned District Court judge made the following findings of fact which are set out in paragraph 7 of the case stated:

"A. That the complainant is a State/statutory body established by the Fisheries Act, 1980 charged with, inter alla, protection of waters and authorised to prosecute offences under, inter alia, the Fisheries Acts.

B. That the defendants are a local authority/sanitary authority charged by the Local Government (Water Pollution) Act, 1977 as amended by Local Government (Water Pollution) (Amendment) Act, 1990 with, inter alia, protection of waters and authorised to prosecute offences thereunder.

C. That by virtue of inter alia, the provisions of section 23 of the Public Health (Ireland) Act, 1878 the owners and occupiers of all premises within the district of the defendant and sanitary authority were entitled to cause their drains to empty into the sewers of the defendant and as a corollary, the defendants were obliged to receive such, irrespective of the adequacy or otherwise of the existing sewage treatment works.

D. That the alleged offences related to discharges from the sewage treatment works owned and operated by the defendant at Derrylurgan (adjoining the town of Ballyjamesduff) within the county of Cavan, district court area of Ballyjamesduff and region of the Shannon Regional Fisheries Board.

E. That samples were taken by the complainant (a) in the Pound stream upstream of the discharge from the aforesaid treatment works,

(b) at the outlet from the said treatment works and (c) in the Pound stream downstream of the said outlet.

F. That the analysis of these samples established that on each of the two dotes charged, "deleterious matter" as defined in section 2 of the Fisheries (Amendment) Act, 1962 entered from the defendants said treatment works into "waters" as defined in section 3 of the Fisheries (Consolidation) Act, 1959 to wit the Pound stream a tributary of the Mount Nugent river.

G. That when the said sewage treatment works was constructed by the defendant in or about the year 1951, it was designed to cater for a population of 700 persons, and was more than adequate at the time to dispose of the sewerage and surplus water for the district in question, but that it subsequently became inadequate in consequence of:-

(a) Improved domestic sanitary facilities in the area and the advent of washing machines, dishwashers and other domestic appliances.

(b) That the per capita of population volume of effluent requiring treatment has increased significantly since 1951.

(c) That the population itself of the area serviced by the said treatment works has increased significantly and now numbers some 1,480 persons.

(H) That the defendants had been seeking to have the said sewage treatment works upgraded/replaced but they are unable to do so and have been prevented from doing so in consequence of the following reasons viz:-

(a) upgrading of the sewage treatment works to a capacity/specification capable of producing an acceptable effluent would involve a "sanitary services capital scheme" involving twelve successive stages each requiring prior approval from the Department of the Environment viz:-

(1) Approval to consultant engineer's brief.

(2) Approval to appointment of consultant engineer for preliminary reports.

(3) Approval to preliminary report.

(4) Approval to consulting engineer's brief contract documents stage.

(5) Approval to appointment of consultation engineer for contract document stage.

(6) Approval to proceed to contract document stage.

(7) Approval to site investigation expenditure.

(8) Approval to contract documents.

(9) Approval to proceed to tender.

(10) Approval to recommended tender.

(11) Approval to appoint consultant to supervision of contract stage.

(12) Approval of resident engineering staff structure and salaries.

(b) Monies for such schemes are not available to the local authority save when provided by the Department of the Environment, and the local/sanitary authority does not have the means or authorisation to raise such monies otherwise.

(c) Schemes for upgrading of sewage treatment works are listed with the Department of the Environment and the sanctioning of same and provision of funds are matters completely within the control of the Department of the Environment and are governed by the availability of funds and their perception of priorities.

(I) That the defendant took all reasonable care to prevent the entry of deleterious matter into waters as charged."

In the last three paragraphs of the case stated the learned District Court judge then sets out the conclusion he reached on the facts, his reasons for submitting questions for the opinion of the High Court and the particular question which he seeks to have answered.

8. I am of opinion that:-

(a) the offence charged under section 171(1)(b) aforesaid is an offence of strict liability not requiring mens rea, negligence, or knowledge on the part of the defendants as an ingredient of the offence.

(b) In the foregoing circumstances I am obliged, in respect of each of the two dates charged, to enter convictions as against the defendant.

9. As there seems to me to be a basic unfairness that a local authority should be subjected to conviction at the prosecution of another State body in circumstances where:-

(i) The local authority is obliged by statute to receive public sewage.

(ii) It is not possible for the local authority to prevent deleterious matter entering waters in consequence of the inadequacy of the existing sewage treatment works to treat the public sewage received.

(iii) That the provision of an adequate sewage treatment work does not lie within the power or control of the local authority, the authorisation and funding thereof remaining vested exclusively within a government department (to wit the Department of the Environment).

(iv) That the defendants were, on each occasion, doing the best they could with the facilities available to them to treat the effluent entering into the said sewage treatment works;

I look to the High Court for guidance and respectfully raise the following questions viz:-

"(a) Is the offence charged under the said section 171(1)(b) as amended, an offence of strict liability in which mens rea negligence and/or knowledge are not essential ingredients?

(b) Should I in the circumstances outlined proceed to convict the defendant?

(c) May the provisions of section 1 of the Probation of Offenders Act, 1907 be applied to the offences charged?

(d) If the provisions of section 1 of the Probation of Offenders Act, 1907 can be applied, should I on the basis of the facts as found by me dismiss the charge under said section 1?

(e) If I should in the foregoing circumstances proceed to convict, should such conviction be in respect of "permit" or "cause" deleterious matter to fall into waters?

(f) If I am obliged to convict, what criteria/standard should guide me in the matter of assessment of level of penalty?

(d) If I am to proceed to conviction, having regard to the provisions of section 28 of the Local Government (Water Pollution) (Amendment) 1990, should I award to the complainant full costs and expenses reasonably incurred by the complainant in relation to the investigation, detection and prosecution of the offences as charged?"

The learned High Court judge answered the questions raised as follows:

"(a) The offence charged under section 171(1)(b) as amended is an offence of strict liability in which mens rea, negligence and/or knowledge are not essential ingredients.

(b) Subject to the option that is available to the trial judge under section 1(1) of the Probation of Offenders Act, 1907, the learned judge should in the circumstances outlined in the case stated proceed to convict the defendant.

(c) The provisions of section 1 of the 1907 Act may be applied to the offences charged.

(d) The application or otherwise of the Probation of Offenders Act, 1907 to the charges is a matter wholly within the discretion of the trial judge.

(e) If the judge of the District Court proceeds to convict it would, in my view, be preferable to convict in respect of "causing" rather than "permitting" deleterious matter to fall into the waters having regard to the wider significance of the word "caused" and the precise terms of the judgment of Mr Justice Lynch in the Maguire case and the authorities referred to therein.

(f) The level of penalty is a matter wholly within the discretion of the trial judge.

(g) The learned judge is bound to allow the complainant the costs and expenses reasonably incurred by it unless he is satisfied that there are special and substantial reasons for not so doing. It would be premature to consider the issue of costs until after the charges have been disposed of and reasons advanced by the Cavan local authority for being relieved from the prima facie liability to pay costs and expenses. The evaluation of such reasons or explanations is essentially a matter within the discretion of the trial judge."

In its notice of appeal the appellant appeals against so much of the judgment and order of the learned High Court judge as found that:-

1. The offence charged under s 171(1)(b) of the Fisheries (Consolidation) Act 1959 as amended is an offence of strict liability in which mens rea, negligence and/or knowledge are not essential ingredients and

2. the learned District Court judge (subject to the option that is available under s 1(1) of the Probation of Offenders Act, 1907) should in the circumstances outlined in the case stated proceed to convict the defendant, and

3. the appellant do pay to the Board its costs of this case and of the argument thereon when taxed and ascertained.

Mr Gallagher, on behalf of the appellants, relied on two main submissions. Firstly, he submitted that the offence was one which required proof of mens rea and that this had not been proved. Secondly, he submitted that the appellants, by reason of being obliged to accept the sewerage from the drains of all the inhabitants in the locality, and by reason of being unable to remedy the situation themselves since they were wholly dependent on the Department of the Environment, found themselves in an impossible position and for that reason they should not have been prosecuted.

On behalf of the Board, Mr Finlay submitted that the question of whether the offence is one which requires proof of mens rea is irrelevant as the facts clearly established mens rea. The learned District Court judge has found as a fact that the appellants are discharging deleterious matter into the Pound river from the sewage treatment works at Derrylurgan and as the appellants must be taken to have intended the natural and probable consequences of their acts, it follows that mens rea is proved. It is of no avail, therefore, for the appellants to argue that this is not an offence of strict liability. Even if it is not, since mens rea is established they cannot avoid conviction.

Mr Finlay further submitted that the real defence being put forward by the appellants is that they are acting under legal duress -- that they are obliged to accept all the sewerage of the inhabitants in the locality, but they do not have the capacity to upgrade their plant in order to deal with it -- and he submitted that in law this is no defence.

I am satisfied that Mr Finlay's submissions are well-founded. Even if the appellant's submission that the offence requires proof of mens rea is accepted, that is of no avail to the appellants as mens rea is clearly established on the facts. There is no doubt that the appellants did deliberately discharge imperfectly treated sewage into the Pound river, and the fact that they say that they had no alternative but to do this does not alter the character of what they did. There is no question of the sewage being discharged inadvertently or by accident. It was done deliberately because the appellants say they had no other option.

As the question of whether the offence required proof of mens rea was one of the questions raised by the learned District Court judge, it was appropriate that it should be answered by the learned High Court judge but as in my opinion it is not relevant on the facts I do not propose to consider it apart from saying that I agree with the conclusion reached by the learned High Court judge.

Once it is clear on the facts found by the learned District Court judge that the offence was committed by the appellants, the only other issue to be considered is whether there is any ground which could nonetheless afford the appellants a defence to the charge. Mr Gallagher submits that there is. He says that the appellants are in an impossible position and for that reason it is wholly unfair that they should have been prosecuted. In my opinion it is not necessary to decide whether this is factually correct or not because, even if it were, it does not constitute a defence to the charge. Apart from this, I would not be prepared to accept, as Mr Gallagher seems to imply, that no blame whatsoever attaches to the appellants. A population of 700 does not rise to 1,480 without there being some clear indications that an increase is taking place. It was the duty of the appellants to monitor what was happening and to plan for the future requirements of Ballyjamesduff in so far as this was within their power. The case stated is silent on this point. It is not relevant to the question of whether the appellants should be convicted of the offence or not, but it could be relevant on the issue of whether the appellants have always been powerless, as they would seem to claim, to prevent the situation in which they now find themselves.

Before concluding I would refer to a brief passage from the opinion of Lord Wilberforce in the decision of the House of Lords in the case of Alphacell Limited v Woodward [1972] AC 824 which it seems to me is extremely apposite. Alphacell had been convicted under s 2(1) of the Rivers (Prevention of Pollution) Act, 1951 which provides that a person commits an offence "if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter." Polluted water was discharged from some tanks maintained by Alphacell because, unknown to their employees whose job it was to supervise them, pumps which kept the tanks from overflowing became clogged with leaves and failed to function. Lord Wilberforce said in his opinion at p 834G:-

"In my opinion, this is a clear case of causing the polluted water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the appellants and I fail to see how a defect in one stage of it, even if we must assume that this happened without their negligence, can enable them to say they did not cause the pollution. In my opinion, complication of this case by infusion of the concept of mens rea, and its exceptions, is unnecessary and undesirable. The section is clear, its application plain. I agree with the majority of the Divisional Court, who upheld the conviction, except that rather than say that the actions of the appellants were a cause of the pollution I think it more accurate to say that the appellants caused the polluting matter to enter the stream."

I would respectfully adopt Lord Wilberforce's reasoning and his conclusion particularly in regard to its being "unnecessary and undesirable" to introduce the concept of mens rea. And if Alphacell was a clear case of causing polluted water to enter a stream, how much clearer is the instant case where the sewerage was knowingly discharged into the Pound stream.

I would affirm all the answers given by the learned High Court judge to the questions set out in the case stated and dismiss this appeal.

O'FLAHERTY J: Concurred.

KEANE J: The facts in this case as found by the District Judge are fully set out in the judgment of Blayney J.

Section 171(1) of the Fisheries (Consolidation) Act, 1959, (hereafter "the 1959 Act") so far as material provides that:

"(1) Any person who

. . . (b) empties, permits or causes to fall into any waters any deleterious matter,

shall, unless such act is done under and in accordance with a licence granted by the Minister under this section, be guilty of an offence under this section . . ."

By virtue of s 24 of the Local Government (Water Pollution) (Amendment) Act, 1990, the penalty for a conviction on indictment of an offence under s 171 of the Fisheries (Consolidation) 1959 Act has been increased to a fine of £25,000 or five years imprisonment or both.

Section 3 of the Local Government (Water Pollution) Act, 1977 (hereafter "the 1977 Act") created a new offence of causing or permitting any polluting matter (which is defined in s 1 of the 1977 Act) to enter water. Section 3(1)(b) of the 1990 Act (which replaced s 3(3) of the 1977 Act) provides that:

"It shall be a defence to a charge of committing an offence under this section for the accused to prove that he took all reasonable care to prevent the entry of water to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention."

It would appear that it was originally intended by the legislature that these provisions should replace s 171 of the Fisheries (Consolidation) Act 1959, since s 34(c) of the 1977 Act purported to repeal that section. Since, however, it was never brought into operation and was itself repealed by s 30 of the Local Government (Water Pollution) Amendment Act 1990, s 171 remains in force and, as already noted, the penalties in respect of an offence under that provision have been significantly increased.

Three provisions of the Public Health (Ireland) Act 1878 are also relevant. Section 17 provides that:

"Every sanitary authority . . . shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of this Act."

Section 23 provides that:

"The owner or occupier of any premises within the district of a sanitary authority shall be entitled to cause its drains to empty into the sewers of that authority on condition of his giving such notice as may be required by that authority of his intention so to do and of complying with the regulations of that authority in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by that authority to superintend the making of such communications."

Section 19 provides that:

"Nothing in this act shall authorise any sanitary authority to make or use any sewer, drain, or outfall for the purpose of conveying sewage or filthy water into any natural stream or watercourse, or into any canal, pond, or lake until such sewage or filthy water is freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse, or in such canal, pond or lake."

The provisions of s 171 of the Fisheries (Consolidation) Act 1959 as amended were considered by Lynch J in Maguire v Shannon Regional Fisheries Board, [1994] 2 ILRM 251. In that case, the District Judge had found that the appellant, who was the proprietor of a piggery adjacent to the Finaway River, had taken all reasonable steps to prevent an accident which occurred as a result of which whey flowed into the river. Lynch J, held that the offence created by s 171 was an offence of "strict liability" in respect of which the prosecution were not obliged to establish a "guilty mind" on the part of the Appellant or, to give it its legal label, mens rea.

In the present case, the Appellants submitted in the High Court that the entry of deleterious matter in the form of inadequately treated sewage into the Pound stream was not the result of the absence of reasonable care on their part but of the fact that the provision of the funds necessary to provide an adequate treatment plant had not been sanctioned by the Minister for the Environment. That submission was rejected by Murphy J, who considered that he should follow the decision in Maguire v Shannon Regional Fisheries Board.

If the conviction of the Appellants in the present case were justified by proof that they committed the prohibited act constituting the actus reus of the offence, there can be no doubt that a conviction would be properly recorded. The Appellants unquestionably caused or permitted deleterious matter, in the form of inadequately treated sewage, to fall into the waters of the Pound stream and did so knowing that they were committing an act prohibited by the statute.

The question, however, arises in this case as to whether, having regard to the traditional insistence of the criminal law that there should be no conviction in the absence of a guilty mind, it would have been a defence for the Appellants to establish as a matter of probability that they had taken all reasonable steps open to them to prevent the deleterious matter entering the waters. That depends in turn on whether there exists in the law what has been described as a "half way house" between those crimes in which the prosecution must establish mens rea and those of "strict liability" or (as it has sometimes been called) "absolute liability", in respect of which proof of the commission of the prohibited act is sufficient and the state of mind of the accused is irrelevant. In view of the importance of the issue involved and the divergence of view which has emerged in different common law jurisdictions, it might be helpful at the outset to consider how the law has evolved to its present state.

In the case of what have been sometimes describe as "true crimes" -- murder, rape, assault, theft and the like -- the law has always required proof by the prosecution of mens rea. It was not enough to show that the accused had acted negligently: intention or recklessness in the commission of the offence was an essential ingredient. Blackstone epitomised the concept in these words:

"To constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will . . ."

[Commentaries on the Laws of England, [1809], Book IV 15 edn, p 21.]

Since he wrote, however, there has developed in all the common law countries a vast range of statutory offences, which have conveniently been described as "public welfare offences", in respect of which the courts have recorded convictions although it could not be said that the accused person acted with the "guilty mind" of the true criminal. These were cases in which the policy of the statute creating the offence was the protection of the public welfare, characteristically in areas such as health and security, the number of prosecutions was likely to be significant and the penalties provided for were relatively minor. For the courts to require proof by the prosecution of mens rea in all such cases would, it was thought, be impracticable and convictions, in any event, would not result in the stigma associated with true crime. The result was the development of the doctrine of "strict liability".

The rationale underlining this development of the law by judicial decision was explained as follows by Lord Reid in Warner v Metropolitan Police Commissioner, [1968] 2 All ER 356 as follows:

"On the other hand there is a long line of cases in which it has been held with regard to less serious offences that absence of mens rea was no defence. Typical examples are offences under public health, licensing and industrial legislation. If a person sets up as say a butcher, a publican, or a manufacturer and exposes unsound meat for sale, or sells drink to a drunk man or certain parts of his factory are unsafe, it is no defence that he could not by the exercise of reasonable care have known or discovered that the meat was unsound or that the man was drunk or that his premises were unsafe. He must take the risk and when it is found that the statutory prohibition or requirement has been infringed he must pay the penalty. This may well seem unjust, but it is a comparatively minor injustice and there is good reason for it as affording some protection to his customers or servants or to the public at large. Although this man might be able to show that he did his best, a more skilful or diligent man in his position might have done better, and when we are dealing with minor penalties which do not involve the disgrace of criminality it may be in the public interest to have a hard and fast rule. Strictly speaking there ought perhaps to be a defence that the defect was truly latent so that no one could have discovered it; but the law has not developed in that way and one can see the difficulty if such a defence were allowed in a summary prosecution. These are only quasi-criminal offences and it does not really offend the ordinary man's sense of justice that moral guilt is not of the essence of the offence."

This approach led the courts in England at an early stage to hold that, while the presumption is that mens rea -- an evil intention or a knowledge of the wrongfulness of the act -- is an essential ingredient in every offence, that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals. That was the effect of the decision of Wright J, in Sherras v De Rutzen, [1895] 1 QB 918, which was applied by Lynch J, in Maguire v Shannon Regional Fisheries Board in which he held that the presumption had not been displaced. Sherras v De Rutzen had also been applied by a divisional court of the High Court (O'Sullivan P, as he then was, and Hanna J) in McAdam v Dublin United Tramways Company Limited [1929] IR 327.

The deviation from accepted principles of criminal responsibility reflected in the doctrine of absolute liability has caused understandable disquiet and both textbook writers and courts have on occasions sought to find an intermediate position between the stark alternatives of a requirement that mens rea be proved by the prosecution and that the offence be treated as one of strict liability to which the absence of mens rea is no defence.

An early example is the New Zealand decision of R v Ewart, [1905] 25 NZLR 709, in which Edwards J, having referred to the two traditional categories of offences, went on:

"There is also a third class in which, although from the omission from the statute of the words 'knowingly' or 'wilfully', it is not necessary to aver in the indictment that the offence charged was 'knowingly' or 'wilfully' committed, or to prove a guilty mind, and the commission of the act in itself prima facie imports an offence, yet the person charged may still discharge himself by proving to the satisfaction of the tribunal which tried him that in fact he had not a guilty mind."

Concern that the dichotomy between 'true crime' and strict liability offences might give rise to injustice prompted Dr Glanville Williams to propose in 1961 a 'half way house' which would secure exoneration for a defendant who had not been negligent. [Criminal Law: The General Part, 2 edtn, [1961]]. In Sweet v Parsley, [1970] AC 132, the first in a number of cases in which the issue was possession of illegal drugs, Lord Reid expressed surprise that this approach had not been more often availed of and suggested that this was because of a misunderstanding of the principles laid down in Woolmington v Director of Public Prosecutions, [1935] AC 462. That case had made it clear that the burden of proof remained on the prosecution at every stage of a criminal trial, but, as Lord Diplock pointed out in the same case, there was nothing inconsistent with that principle in permitting a defence which depended on the establishment by the accused of a certain state of affairs entitling him to be exonerated.

However, the relatively slender line of authority suggesting the possibility of such a defence appears to have come to a decisive end in England with Alpha Cell Limited v Woodward, [1972] AC 824, an authority of particular significance in the present context since it deals with an offence under s 2(1) of the Rivers (Prevention of Pollution) Act 1951, providing for the commission of an offence where a person

"causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter."

The facts of that case have been set out in the judgment of Blayney J and, as he points out, Lord Wilberforce was satisfied that it could be disposed of without any consideration of the concept of mens rea. However, some consideration was given in the other speeches to the relevance of that concept. Thus, Viscount Dilhorne was clearly of the view that the act was one of those which came within the category defined by Wright J in Sherras v De Rutzen viz, acts which

"are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty."

He concluded that the offence created by the statute came within that category and that, accordingly, the appellants were not exonerated from liability because they had not intended the results which flowed from their operations. He was also of the view that to require the prosecution to prove that the appellants intended to cause the pollution would place too heavy a burden on the prosecution, overlooking, it would seem, the view forcefully advanced by Lord Reid and Lord Diplock in Sweet v Parsley that there was nothing inconsistent with the decision in DPP v Woolmington, in transferring the burden in this area to the defence, once the commission of the prohibited act had been proved.

Lord Pearce also considered the mens rea concept and held that it was not a necessary ingredient "in an offence of this kind". He concludes his speech with this important passage:

"When one sets out to select in this case from the whole 'complex of the facts' the 'governing explanation' of the overflow of polluted water into the river there are a number of factors to be taken into account. These include the absence of intention, the absence of knowledge and the assumed absence of negligence on the part of the Appellants. It would have been easier to decide that they caused the overflow if they had intended it or known of it when it was happening or brought it about by their negligence.

"Nevertheless I think that the justices and the majority of the divisional court were right in holding that the overflow was caused by the activities of the appellants. Those were positive activities and they directly brought about the overflow. What other cause was there? There was no intervening act of a trespasser and no act of God. There was not even any unusual weather or freak of nature. Autumn is the season of the year in which dead leaves, ferns, pieces of bracken and pieces of brambles may be expected to fall into water and sink below the surface and, if there is a pump, to be sucked up by it. In my opinion, the activities of the appellants were the cause of the overflow of polluted water into the river. It is not necessary for the purposes of this case to decide whether a conviction should be upheld if the activities of a Defendant were to be regarded as only a cause of such an overflow. Subject to reservation of that question, I agree with the judgment of the majority in the divisional court."

Lord Cross of Chelsea, who said that he found this "a difficult case", also considered the question as to whether the fact that the pollution might have been due to the act of a trespasser afforded the appellants a defence. He was of the view that that argument could not succeed, because the appellants had not advanced any evidence to show that the brambles had been placed there by a trespasser or that any "act of God" had been responsible, thereby, it would seem, acknowledging by implication that the appellants might not have been criminally responsible if the actual overflow had been due to the act of a trespasser or to the intervention of an "act of God".

The logic of that approach is, with respect, not altogether clear. The appellant who operated the effluent plant, in the view of all the law lords "caused" the pollution within the meaning of the Act, although he neither intended to do so nor was in any way negligent. Why then should he be freed from liability if the actual discharge was because of the intervening act of a trespasser? It cannot be because, in such circumstances, he would not intend actually to pollute the river: neither did the appellant. It cannot be because he could not reasonably be expected to anticipate the action of a trespasser, for that would be akin to saying that absence of negligence is a defence. It cannot be supported on the ground that such a result would be manifestly unjust, since that is to beg the question: offences of strict liability, where no defence of absence of intention or negligence is available, may of their nature bring about unjust results, which are defended on the ground of the public welfare.

Not surprisingly, Dr Glanville Williams, when he returned to the topic in his Textbook of Criminal Law, [1983] was of the view that

"the latter decision (Sweet v Parsley) at first raised a flicker of hope that the House of Lords might repent of its attitude in Warner on the general question of strict liability; that hope was snuffed out by their Lordships' subsequent decisions in Alpha Cell and Smedleys Limited v Breed, [1974] AC 839."

I should conclude this review of the English authorities by referring to Gammon (Hong Kong) Limited Attorney General of Hong Kong, [1985] AC, 1, referred to in Maguire v Shannon Regional Fisheries Board in which Lord Scarman, giving the advice of the Privy Council, set out five propositions at p 14 as follows:

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

(2) The presumption is particularly strong where the offence is 'truly criminal' in character;

(3) The presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute;

(4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;

(5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

The fifth condition for the imposition of strict liability prescribed by Lord Scarman is of particular importance, since it raises the question as to whether the exclusion of any defence based on the taking of reasonable care is consistent with the encouragement of "greater vigilance". It is also of interest that he cites with approval the following passage from the speech of Lord Diplock in Sweet v Parsley:

"But where the subject matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not likely to be drawn, nor is there any room for it, unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation (see Lim Chin Aik v The Queen [1963] AC 160, 174)."

[Emphasis added]

A view entirely different from that which found favour in Alpha Cell was taken by the Supreme Court of Canada in R v City of Sault Ste Marie [[1978] 85 DLR (3d) 161.]

In that case, the accused was charged with

"discharging, causing to be discharged, or permitting to be discharged or deposited materials into a body of water or on the shore or bank thereof, or in such place that might impair the quality of the water."

The accused had entered into an agreement with a private company for the disposal of the city's garbage and as a result of the manner of disposal of the garbage nearby bodies of waters were polluted. The accused was acquitted at the trial but was convicted on appeal by the Crown, the judge holding that the offence was one of strict liability not requiring proof of mens rea. The divisional court quashed the conviction on the ground that the charge was duplicitous, but also held that the offence of causing or permitting a discharge required proof of mens rea. The Ontario Court of Appeal agreed with that decision and a new trial was ordered, the majority holding that there was insufficient evidence of mens rea to uphold a conviction. The Supreme Court of Canada unanimously upheld the decision of the Court of Appeal.

Delivering the judgment of the court of nine members, Dickson J referred to the arguments advanced in justification of absolute liability in public welfare offences and pointed out that two predominated. First, there was the argument that the protection of social interests required a high standard of care and attention on the part of those who engaged in particular activities and that such persons are more likely to be stimulated to maintain those standards if they know that ignorance or mistake will not excuse them. The second argument was based on administrative efficiency: having regard to the number of petty cases which daily come before the courts, proof of fault was too great a burden in time and money to place upon the prosecution. He also referred to the argument that slight penalties are usually imposed and that conviction for breach of a public welfare offence "does not carry the stigma associated with conviction for a criminal offence". He went on:

"Arguments of greater force are advanced against absolute liability. The most telling is that it violates the most fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that, however much care he takes, it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked. The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time, legal costs, exposure to the processes of the criminal law at trial and, however one may down play it, the opprobrium of conviction. It is not sufficient to say that the public interest is engaged and, therefore, liability may be imposed without fault. In serious crimes, the public interest is involved and mens rea must be proven. The administrative argument has little force. In sentencing, evidence of due diligence is admissible and therefore the evidence might just as well be heard when considering guilt."

Having referred to the Australian case of Proudman v Dayman [1941], 67 CLR 536, in which Sir Owen Dixon accepted that a "honest and reasonable belief in a state of facts which, if they existed would make the Defendant's act innocent" afforded a defence to what would otherwise be an offence, Dickson J commented:

"In such cases, negligence consists of an unreasonable failure to know the facts which constitute the offence. It is clear, however, that in principle the defence is that all reasonable care was taken. In other circumstances, the issue will be whether the accused's behaviour was negligent in bringing about the forbidden event when he knew the relevant facts. Once the defence of reasonable mistake of fact is accepted, there is no barrier to acceptance of the other constituent parts of a defence of due diligence."

Dickson J concluded his analysis as follows:

"I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two.

(1) Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

(2) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed the mistaken set of facts, which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr Justice Esty so referred to them in R v Hickey, [1976], 29 CCC (2d) 23.

(3) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

Dickson J was of the view that public welfare offences would, prima facie, be in the second category and were not subject to the presumption of full mens rea. An offence of that type, he said, would fall in the first category only if such words as "wilfully", "with intent", "knowingly" or "intentionally" were contained in the statutory provision creating the offence. Offences of absolute liability would be those in respect of which the legislature had made it clear that guilt would follow proof merely of the proscribed act. He added:

"The overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category."

Dickson J had no doubt that the prevention of the pollution of lakes, rivers and streams was of "great public concern". There was thus no presumption of full mens rea. Having then referred to the many decisions on the interpretation of what he described as

"two troublesome words frequently found in public welfare statutes: 'cause' and 'permit',"

he concluded:

"the conflict in the above authorities . . . shows that in themselves the words 'cause' and 'permit' fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any word such as 'knowingly' or 'wilfully' expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability.

"Proof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care."

It is clear that, if that statement of the law were to be applied in this jurisdiction, one would have to go on to consider whether the Appellants in this case had proved that they took reasonable care. However, if the law as stated in Alpha Cell is to be applied, it is equally clear that no such defence was available to the Appellants.

Before considering which of these two approaches is to be preferred, I should make three preliminary observations.

First, although the authorities speak of the legislature as having created offences of "strict liability" or "absolute liability", it is important to bear in mind that the division of criminal offences into these categories has, in general, been the consequence of judicial decisions. In these circumstances, it seems to me that there is not much force in an argument which might otherwise have some appeal, ie that if the law is to develop in this area, it should be by parliamentary intervention rather than by court decisions. Since the doctrine of "strict liability" has been developed by the courts, there seems no reason why its further elaboration should not also be undertaken by judges rather than by the legislature. That was the view taken by Dickson J and is one with which I would respectfully agree.

Secondly, the seriousness of the offence under consideration in this case is to be gauged by the maximum penalty now applicable as a result of the amendment effected by the Local Government (Water Pollution) Amendment Act 1990, ie a fine of £25,000 or five years' imprisonment or both. The fact that the offence as originally created was triable summarily and attracted a maximum fine of £25 or a maximum sentence of six months imprisonment is wholly irrelevant.

Thirdly, the observation of Lord Reid in Warner v Metropolitan Police Commissioner that

"parliament being sovereign, can create absolute offences if so minded" must be treated with caution in this jurisdiction, having regard to the guarantee in Article 38.1 of the Constitution that

"no person shall be tried on any criminal charge save in due course of law."

It would seem to me that an attempt by the Oireachtas to make every crime, whether a "true crime" or a public welfare offence, an offence of absolute liability would involve the removal of a fundamental protection under the criminal law as it existed at the time of the enactment of the Constitution.

There is, of course, not the remotest likelihood of any such legislation appearing on the statute book. But since the Fisheries (Consolidation) Act 1959 and those which amended it enjoy a presumption of constitutionality, it seems to me that the courts must consider with care, in every case where it is claimed that such an offence has been created, whether the language used by the Oireachtas justifies such a construction or whether it arises by necessary implication because of the subject matter of the enactment and the nature of the penalty imposed.

In considering which approach to this complex question should be adopted in this jurisdiction, I would reject at the outset the suggestion that no person should ever be found guilty of a criminal offence unless he has been, in some sense, morally culpable. Dr Glanville Williams comes near to that extreme position in his Textbook of Criminal Law, but even he is prepared to allow of the possibility of exceptions. It would seem to me that to treat parking offences, for example, as involving moral culpability is at once to diminish that concept. It is unnecessary, for the purposes of this appeal, to consider what other offences might appropriately be regarded as being in the same category.

If, as Lord Diplock urged in Warner and as Lord Scarman accepted in Gammon (Hong Kong) Limited, a primary objective of treating an offence as one of strict liability is to encourage greater vigilance on the part of those in a position to prevent the commission of the prohibited act, it is difficult to understand why a defence that the accused took all reasonable care should be excluded. It would, on the contrary, seem to put the accused in the position of carrying on the particular activity at his peril, a particularly remarkable Conclusion in a case such as the present, where the Appellants were under a statutory duty to drain the district and dispose, in some fashion, of the collected sewage. In the case of one of the country's principal industries, agriculture, it would seem to follow, if that were indeed the law, that some farming activities could never be carried on, since it would never be open to the farmer to argue that he had taken all reasonable steps in his power to dispose of the slurry or whatever. Leaving aside the special position of local authorities and other bodies with statutory responsibilities, it would seem to me to encourage laxer standards on the part of potential polluters. Since the factory owner or farmer would know that the expenditure of time and money on the taking of appropriate measures is going to avail him nothing, there is the likelihood that some at least would simply disregard the law or take at best inadequate precautions, as the alternative would be going out of business.

The second argument normally advanced in favour of excluding such a defence is that little stigma is involved in a conviction. Even if that were true, and it is, in my view, highly questionable, there remains the fact that, under the statute with which we are concerned, the maximum penalties are anything but trivial: a fine of £25,000 or five years' imprisonment. (Provision, it may be noted, is made under the Environmental Protection Agency Act 1992 for an increase in the maximum fine for corresponding offences to £10,000,000.) That is in addition to the trauma of being exposed to the criminal process, culminating in a trial before a jury.

As to the question of stigma, there is, of course, no doubt that, in the case of a number of minor offences, a conviction carries with it little opprobrium. It is not easy to understand, however, why that assumption should be made in a case such as the present. Whatever may have been the view in former times, are the courts today to operate on the assumption that a wealthy corporation which recklessly or even deliberately pollutes the environment, leading in some cases to public health hazards, is guilty only of a "quasi- criminal" offence, more akin to a breach of the civil law, while the young man who at the end of an evening of revelry throws a stone through a shop window is guilty of a "true crime"?

Similarly, the argument that the fact that the person has taken all reasonable care can be reflected in the penalty imposed, seems to me untenable. What useful purpose would be served in the present case, if a purely nominal penalty was imposed? None is suggested: it would unquestionably have the result, in the eyes of thoughtful people, of bringing the law into well deserved disrepute.

Even if one does not adopt as extreme a position as Dr Glanville Williams, there is no doubt that at the heart of this debate is a fundamental issue as to the nature of the criminal law. If it is the case that it is designed to punish the commission of acts or omissions which are in some sense culpable or blameworthy, then the creation by the legislature of a huge spectrum of offences, ranging from the relatively trivial to the very serious, in which the culpability of the accused was wholly irrelevant, save when it came to the infliction of punishment, would mean that our criminal law would have departed significantly from that central value.

I conclude that the law should recognise that there is an intermediate range of offences, of which this is one, in which, while full proof of mens rea is not required and the proof of the prohibited act prima facie imports the commission of the offence, the accused may avoid liability by proving that he took reasonable care. I am fortified in arriving at that conclusion by the decision of the Canadian Supreme Court in R v City of Sault Ste Marie: for the reasons already given, I find the reasoning in the judgment of Dickson J preferable to that of the law lords in Alpha Cell. It follows that I would regard Maguire v Shannon Regional Fisheries Board as having been wrongly decided. Before leaving the topic, I should add that I have been greatly assisted by the admirable discussion of the law in Criminal Law: Cases and Materials by Peter Charleton SC.

That brings me to the question as to whether the District Judge in the present case was entitled to conclude, as a matter of probability, that the Appellants had taken all reasonable precautions to prevent the entry of deleterious matter, in the form of inadequately treated sewage, into the waters of the Pound stream. In a sense, that issue has already been determined, since the District Judge found as a fact at paragraph 7(I).

"That the defendant took all reasonable care to prevent the entry of deleterious matter into waters as charged."

The question as to whether we were bound by this finding of fact was not debated before us: for the purpose of this judgment, I am prepared to assume that, while described as a finding of fact, it was intended by the District Judge to be also a finding of law, which this court could properly review, particularly since the second question in the Case Stated is phrased in general terms, viz:

"Should I in the circumstances outlined proceed to convict the defendant?"

I do not think that the question as to whether the Appellants took reasonable care to avoid polluting the waters can be determined by reference to what should have been foreseen by them at some indeterminate stage during the past forty-five years as to the demand that might be placed upon the capacity of their sewage system. The summons charged the Appellants with having caused the deleterious matter to fall into the waters of the Pound stream on the 9 December 1991. It must be assumed from the recital of facts in the Case Stated that, had the Appellants been in a position to bring their treatment works to a proper standard within some period of time prior to that date, the "deleterious matter" would not have entered the waters on that date as a result of their activities. What that period of time is and whether it is to be measured in terms of months or years, I do not know. There is nothing in the facts as found by the District Judge, however, to suggest that at any stage in recent years the Appellants were in a position to bring their treatment works up to the appropriate standard, since they had not been provided with the monies by the Minister for the Environment and (to quote the case stated).

"The (Appellants do) not have the means or authorisation to raise such monies otherwise."

It is an inescapable conclusion from these findings that the pollution of the waters was the result, not of any absence of reasonable care on the part of the appellants, but of the failure of the Minister for the Environment to provide them with the necessary monies. That, as I have indicated, was the conclusion arrived at by the District Judge: it was a view he was entitled to form on the facts and, to the extent that it involved the determination of a question of law, I have no doubt that his determination was also entirely correct.

I would allow the appeal.

© 1996 Irish Supreme Court

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