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Cite as: [1986] UKHL 2, [1987] AC 1

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/246

    Regina
    v.

    Shivpuri (Appellant) (On Appeal from the Court of Appeal

    (Criminal Division))

    JUDGMENT

    Die Jovis 22° Maii 1986

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Shivpuri, That the

    Committee had heard Counsel on Tuesday the 4th and Monday the
    24th days of February last upon the Petition and Appeal of
    Pyare Shivpuri of 63, Victoria Road, London, N4 3SN, praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal of
    13th November 1984, might be reviewed before Her Majesty the
    Queen in Her Court of Parliament and that the said Order
    might be reversed, varied or altered or that the Petitioner
    might have such other relief in the premises as to Her
    Majesty the Queen in Her Court of Parliament might seem meet;
    and Counsel having been heard on behalf of the Commissioners
    of Customs and Excise on behalf of Her Majesty the Queen, the
    Respondent to the said appeal; and due consideration had on
    Thursday the 15th of this instant May and this day of what
    was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Criminal Division) of 13th November 1984 complained
    of in the said Appeal be, and the same is hereby, Affirmed;
    That the Certified Question be answered in the affirmative,
    and that the said Petition and Appeal be, and the same is
    hereby, dismissed this House: And it is further Ordered,
    That the costs of the said Appellant and of the said
    Respondent incurred in respect of the said Appeal be paid out
    of central funds pursuant to section 10 of the Costs in
    Criminal Cases Act 1973, the amounts thereof to be certified
    by the Clerk of the Parliaments.

    Cler: Parliamentor

    Judgment: 15.5.86

    HOUSE OF LORDS

    REGINA

    v.

    SHIVPURI

    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

    DIVISION))

    Lord Chancellor
    Lord Elwyn-Jones
    Lord Scarman
    Lord Bridge of Harwich
    Lord Mackay of Clashfern


    LORD CHANCELLOR

    My Lords,

    I have had the advantage of reading in draft the speech
    about to be delivered (and now available in print) by my noble and
    learned friend, Lord Bridge of Harwich. Save for one relatively
    minor point I agree with it in its entirety and would dispose of
    this appeal as he proposes and for the reasons which he gives. I
    add a few remarks of my own for reasons which will appear.

    The first comment I make is that I believe that this is the
    first time that the Practice Statement (Judicial Precedent) [1966]
    1 W.L.R. 1234 has been applied to a decision as recent as that in
    Anderton v. Ryan [1985] AC 560. Ordinarily I might have been
    loth to take so bold a step, even though I may have entertained
    privately the thought that such a case so recently and so carefully
    considered and supported by two such powerfully reasoned
    judgments was nevertheless seriously open to question. Quite
    clearly a departure from recent decisions by means of the Practice
    Statement has dangers of its own which are too obvious to need
    elaboration. But there is obviously much to be said for the view
    about to be expressed by my noble and learned friend that "if a
    serious error embodied in a decision of this House has distorted
    the law, the sooner it is corrected the better." This consideration
    must be of all the greater force when the error is, as in the
    present case, to be corrected by a palinode composed by one of
    the original authors of the majority judgment. I also agree with
    my noble and learned friend that in the very nature of the present
    case it would seem impossible that anyone could have acted to his
    detriment in reliance on the law as stated in the decision departed
    from. Thirdly, as one of the authors of the decision in Reg. v.

    - 1 -

    Smith (Roger) [1975] AC 476 I must say that I had hoped that
    my opinion in that case would be read by Parliament as a cri de
    coeur, at least on my part, that Parliament should use its
    legislative power to rescue the law of criminal attempts from the
    subtleties and absurdities to which I felt that, on existing
    premises, it was doomed to reduce itself, and, after long
    discussions with the late Lord Reid, I had reached the conclusion
    that the key to the anomalies arose from the various kinds of
    circumstance to which the word "attempt" can be legitimately
    applied, and that the road to freedom lay in making an inchoate
    crime of this nature depend on a prohibited act (the so called, but
    ineptly called, "actus reus") amounting to something more than a
    purely preparatory act plus an intent (as distinct from an attempt)
    to carry the act through to completion. When the Criminal
    Attempts Act 1981 was carried into law, and I read section 6
    which abolished altogether the common law offence except as
    regards acts done before the commencement of the Act, I was
    happily under the impression that my hopes had been realised, and
    that my carefully prepared speech in Reg. v. Smith (Roger) would
    henceforth be relegated to the limbo reserved for the discussions
    of medieval schoolmen. It was therefore with something like
    dismay that I learned that the ghost of my speech had risen from
    what I had supposed to be its tomb and was still clanking its
    philosophical chains about the field, and that the new Act had
    formed a tilting yard for a joust of almost unexampled ferocity
    between two of the most distinguished professors of English
    criminal law in the United Kingdom.

    I must add, however, that even had I not been able to
    follow my noble and learned friend in interring Anderton v. Ryan
    by using the Practice Statement of 1966, I would still have
    dismissed the instant appeal by distinguishing its facts from that
    case. Shortly, my reasoning would have been that the appellant
    was guilty on the clear wording of sections 1(1) and 1(2) of the
    Act of 1981 and that no recourse was therefore necessary to the
    wording of clause 1(3) which if so would be irrelevant.

    I would have arrived at this conclusion by asking myself
    three simple questions to which the answers could only be made in
    one form. They are:

    Q.1. What was the intention of the appellant throughout?
    A.1. His intention throughout was to evade and defeat the
    customs authorities of the U.K. He had no other intention.
    His motive was gain (the bribe of £1,000). But as I pointed
    out in Reg. v. Hyam [1975] AC 55, 73 motive is not the
    same thing as intention.

    Q.2. Is the knowing evasion of the U.K. customs in the

    manner envisaged in the appellant's intent an offence to

    which section 1 of the Act of 1981 applies? A.2. Yes, see
    section

    Q.3. Did the appellant do an act which was more than
    preparatory to the commission of the offence? A.3. Yes,
    for the reasons stated in the relevant paragraphs of my
    noble and learned friend's speech.

    - 2 -

    In this connexion I do not feel it would have been necessary
    to invoke the doctrine of dominant and subordinate intention
    referred to by my noble and learned friend. The sole intent of
    the instant appellant from start to finish was to defeat the
    customs prohibition. In Anderton v; Ryan the only intention of
    Mrs. Ryan was to buy a particular video cassette recorder at a
    knock-down price, and the fact that she believed it to be stolen
    formed no part of that intention. It was a belief, assumed to be
    false and not an intention at all. It was a false belief as to a
    state of fact, and, if it became an intention it was only the result
    of the deeming provisions of section 1(3). Whether or not Anderton
    v. Ryan
    was correctly decided, one has to go to section 1(3) of
    the Act of 1981 to decide whether Mrs. Ryan had committed a
    criminal attempt under the Act as the result of her belief,
    assumed to be false, that the video cassette recorder had in fact
    been stolen. Similarly, to my mind, the only intention of the
    lustful youth postulated by my noble and learned friends, Lord
    Roskill and Lord Bridge of Harwich, by way of example in
    Anderton v. Ryan was to have carnal connexion with a particular
    girl. One has to go to section 1(3) to discover whether or not a
    criminal attempt had been committed as the result of his false
    belief that she was under age.

    By way of conclusion I have to say that I think it a pity
    that, as it emerged from Parliament, the Act of 1981 departed
    from the draft Bill attached to the Law Commission report
    (Criminal Law: Attempt, and Impossibility in Relation to Attempt,
    Conspiracy and Incitement (1980) (Law Commission No. 102)),
    which might have saved a lot of trouble. In particular the
    distinction which I have sought to draw above between the facts in
    Anderton v. Ryan and the instant appeal would have been patently
    obvious and not to some extent controversial. In the second place
    it may perhaps have been inevitable, but is nonetheless unusual,
    that, in defining the prohibited act in section 1, the draftsman in
    both cases was driven to define the act by reference to an intent,
    instead, as is more usual in criminal jurisprudence, of defining the
    criminal intent by reference to a separately defined prohibited act.
    It is this feature of section 1 which, I believe, has caused the
    trouble, and once this road has been followed it was I believe
    impossible to avoid the disadvantages pointed out in paragraph 2.97
    of the Law Commission's report to which my noble and learned
    friend has drawn attention.

    In the circumstances I am happy that my noble and learned
    friend's conclusion has enabled the House to arrive at its
    destination without resorting to these, possibly excessively
    sophisticated, subtleties.

    LORD ELWYN-JONES

    My Lords,

    I would for my part have been content to dismiss this
    appeal by distinguishing its facts from the case of Anderton v.
    Ryan
    as my noble and learned friend the Lord Chancellor has done
    in his speech which I have had the advantage of reading in draft.

    - 3 -

    Having now also had the advantage of reading in draft the
    speech of my noble and learned friend, Lord Bridge of Harwich,
    with which I agree, I would dismiss the appeal as he proposes and
    for the reasons which he gives.

    LORD SCARMAN

    My Lords,

    I Have had the advantage of studying in draft the speech to
    be delivered by my noble and learned friend Lord Bridge of
    Harwich. I agree with it.

    For the reasons which he gives I would dismiss the appeal,
    answering the certified question as he proposes.

    LORD BRIDGE OF HARWICH

    My Lords,

    On 23 February 1984 the appellant was convicted at the
    Crown Court at Reading of two attempts to commit offences.
    The offences attempted were being knowingly concerned in dealing
    with (count 1) and in harbouring (count 2) a Class A controlled
    drug namely diamorphine, with intent to evade the prohibition of
    importation imposed by section 3(1) of the Misuse of Drugs Act
    1971, contrary to section 170(l)(b) of the Customs and Excise
    Management Act 1979. On 5 November 1984 the Court of Appeal
    (Criminal Division) dismissed his appeals against conviction but
    certified that a point of law of general public importance was
    involved in their decision and granted leave to appeal to your
    Lordships' House. The certified question granted on 13 November
    1984 reads:

    "Does a person commit an offence under section 1 of the
    Criminal Attempts Act 1981 where, if the facts were as
    that person believed them to be, the full offence would
    have been committed by him, but where on the true facts
    the offence which that person set out to commit was in law
    impossible, e.g., because the substance imported and believed
    to be heroin was not heroin but a harmless substance?"

    The facts plainly to be inferred from the evidence,
    interpreted in the light of the jury's guilty verdicts, may be
    shortly summarised. The appellant, on a visit to India, was
    approached by a man named Desai, who offered to pay him £1,000
    if, on his return to England, he would receive a suitcase which a
    courier would deliver to him containing packages of drugs which
    the appellant was then to distribute according to instructions he
    would receive. The suitcase was duly delivered to him in
    Cambridge. On 30 November 1982, acting on instructions, the
    appellant went to Southall station to deliver a package of drugs to
    a third party. Outside the station he and the man he had met by
    appointment were arrested. A package containing a powdered
    substance was found in the appellant's shoulder bag. At the
    appellant's flat in Cambridge, he produced to customs officers the
    suitcase from which the lining had been ripped out and the

    - 4 -remaining packages of the same powdered substance. In answer to
    questions by customs officers and in a long written statement the
    appellant made what amounted to a full confession of having
    played his part, as described, as recipient and distributor of
    illegally imported drugs. The appellant believed the drugs to be
    either heroin or cannabis. In due course the powdered substance
    in the several packages was scientifically analysed and found not
    to be a controlled drug but snuff or some similar harmless
    vegetable matter.

    Before examining the issue arising from the certified
    question, it will be convenient to consider an entirely separate
    ground of appeal, which was not raised in the Court of Appeal,
    but which your Lordships permitted counsel for the appellant to
    argue before the Appellate Committee. Complaint is made of the
    following passage in the summing-up of the trial judge, Judge
    Pigot Q.C. In discussing the meaning of the words "knowingly
    concerned" in section 170(l)(b) of the Act of 1979 he said:

    "The prosecution must prove that the defendants did what
    they did knowingly. That is to say, it must be proved that
    they knew the goods were prohibited goods and had been
    imported into the United Kingdom, although, in the context
    of this case, they need not know precisely what the
    prohibited goods were, as long as they knew they were
    prohibited.

    There is evidence for you to consider in this case that Mr.
    Shivpuri particularly knew the nature of the substance. It is
    a matter for you to decide whether you are sure that he
    knew or believed the substance was heroin or, in his own
    expression, dried hash or cannabis (which is also prohibited)
    or some other prohibited drug. That is what "knowingly"
    means in the context of this case."

    The attack on this passage has two limbs. The first
    criticises the direction as erroneous in law and raises a point of
    law of undoubted general importance although it is doubtful
    whether, in the circumstances of the present case, the point is
    more than academic. The second criticises the direction on a
    narrow ground solely with reference to its applicability to the
    facts of the present case.

    In using the words "they not need know precisely what the
    prohibited goods were, as long as they knew they were prohibited"
    Judge Pigot Q.C. was expounding the law to the jury exactly as it
    was laid down by the Court of Appeal in Reg. v. Hussain [1969] 2
    Q.B. 567 in relation to offences under section 304 of the Customs
    and Excise Act 1952 connected with the importation of prohibited
    goods. In that case the appellant had been convicted of being
    knowingly concerned in the fraudulent evasion of the prohibition of
    the importation of cannabis. It was submitted on his behalf that
    proof of knowledge on his part that the goods being smuggled were
    cannabis was part of the obligation of the prosecution, and since
    the chairman had directed that it was not necessary for the
    accused to know precisely the nature of the goods, there was a
    misdirection. Delivering the judgment of the court, Widgery L.J.
    said, at pp. 571-572:

    - 5 -

    "The court is not prepared to accept that submission. It
    seems perfectly clear that the word "knowingly" in section
    304(b) is concerned with knowing that a fraudulent evasion
    of a prohibition in respect of goods is taking place. If,
    therefore, the accused knows that what is on foot is the
    evasion of a prohibition against importation and he
    knowingly takes part in that operation, it is sufficient to
    justify his conviction, even if he does not know precisely
    what kind of goods are being imported. It is, of course,
    essential that he should know that the goods which are
    being imported are goods subject to a prohibition. It is
    essential he should know that the operation with which he is
    concerning himself is an operation designed to evade that
    prohibition and evade it fraudulently. But it is not
    necessary that he should know the precise category of the
    goods the importation of which has been prohibited."

    The submission made by counsel for the appellant is that
    this case and Reg. v. Hennessey (Timothy) (1978) 68 Cr. App. R.
    419 which followed it should now be overruled. The basis for the
    submission is that section 170 of the Act of 1979 creates three
    distinct offences in relation to the importation of prohibited goods
    according to the category of goods in relation to which the
    offence was committed. The effect of section 170(3) and (4) and
    Schedule 1 is that the commission of any offence under section
    170(1) or (2) in relation to the importation of drugs of Class A or
    Class B under the Misuse of Drugs Act 1971 attracts a maximum
    sentence of 14 years' imprisonment; the commission of any such
    offence in relation to the importation of drugs of Class C attracts
    a maximum sentence of 5 years' imprisonment; and the commission
    of any such offence in relation to any other category of prohibited
    goods attracts a maximum sentence of 2 years' imprisonment. It
    follows from this, applying the reasoning in Reg. v. Courtie [1984]
    A.C. 463, that each of the three distinct offences has different
    ingredients and, leaving aside considerations of impossibility arising
    under the Criminal Attempts Act 1981, part of the actus reus of
    the offence which must be proved in each case is the importation,
    actual or attempted, of goods which were in fact of the
    appropriate category to sustain the offence charged. So far the
    argument seems to me irrefutable and is not challenged by the
    Crown. It is the next step in the argument which is the critical
    one. If each of the three offences involves proof of a different
    element as part of the actus reus, sc. importation of the
    appropriate category of prohibited goods, it follows, so it is
    submitted, that "knowingly," wherever it appears in section 170(1)
    and (2) connotes a corresponding mens rea, sc. knowledge of the
    importation of goods in the appropriate category. I recognise the
    force of this submission. The point may be put in the form of a
    rhetorical question. Can it be supposed that Parliament intended
    that the mens rea appropriate to an offence carrying a maximum
    sentence of 2 years' imprisonment should equally be sufficient to
    sustain a conviction for an offence carrying a maximum sentence
    of 14 years' imprisonment? On the other hand, if the submission
    for the appellant is right, the task of the prosecution in proving
    an offence in relation to the importation of prohibited drugs would
    in many cases be rendered virtually impossible, more particularly
    since the enactment of the Controlled Drugs (Penalties) Act 1985,
    which creates a separate category of offences in relation to the
    importation of drugs of Class A, which now carry a maximum

    - 6 -

    sentence of life imprisonment. By Schedule 2 to the Misuse of
    Drugs Act 1971 there are about one hundred different drugs listed
    in Class A, thirteen in Class B, and ten in Class C. An educated
    layman would know the names of no more than a handful of these:
    cocaine, diamorphine, morphine, opium and perhaps a few others in
    Class A; amphetamine, cannabis and codeine in Class B; none that
    I recognise in Class C. If a man were accused of being knowingly
    concerned in the importation of methyldesorphine (Class A), what
    would a jury make of his defence that he believed it to be
    methylphenidate (Class B) or methaqualone (Class C)?

    Fortunately the legislative history provides a clear resolution
    of these problems. Under section 304 of the Customs and Excise
    Act 1952 the offences which are now the subject of section 170 of
    the Act of 1979 were uniformly punishable by a maximum of 2
    years' imprisonment "save where, in the case of an offence in
    connection with a prohibition or restriction, a penalty is expressly
    provided for that offence by the enactment or other instrument
    imposing the prohibition or restriction." No special penalty was
    imposed by any statute for offences under section 304 of the Act
    of 1952 in connection with the importation of prohibited drugs
    until the Dangerous Drugs Act 1967. Section 7(1) of the Act of
    1967 increased from 2 to 10 years the maximum sentence of
    imprisonment which could be imposed for offences under section
    304 of the Act of 1952 in connection with the importation of
    certain drugs, including cannabis, prohibited by the Dangerous
    Drugs Act 1965. It was against this statutory background that
    Reg. v. Hussain [1969] 2 Q.B. 567 was decided.

    The Misuse of Drugs Act 1971 repealed the earlier
    legislation and enacted a new and comprehensive code intended,
    one may reasonably suppose, to arm the courts with all the
    criminal sanctions they would need to counter the growing drugs
    problem. The Act created, inter alia, the offence of possessing
    controlled drugs: section 5(2). Different maximum penalties
    attached to this offence according to whether the drug the subject
    of the offence was of Class A, B or C: section 25 and Schedule 4.
    Parliament clearly appreciated the difficulty they would create if
    it were necessary for the prosecution to prove, on a charge of
    possession of a drug of a particular Class, not only the fact of
    possession of a drug of that Class, but also guilty knowledge that
    the drug was of that Class. Section 28(3) provides:

    "Where in any proceedings for an offence to which this
    section applies [which includes an offence under section 5(2)]
    it is necessary, if the accused is to be convicted of the
    offence charged, for the prosecution to prove that some
    substance or product involved in the alleged offence was the
    controlled drug which the prosecution alleges it to have
    been, and it is proved that the substance or product in
    question was that controlled drug, the accused -

    1. shall not be acquitted of the offence charged
      by reason only of proving that he neither knew
      nor suspected nor had reason to suspect that
      the substance or product in question was the
      particular controlled drug alleged; but

    2. shall be acquitted thereof -

    - 7 -

    (i) if he proves that he neither believed nor
    suspected nor had reason to suspect that the
    substance or product in question was a
    controlled drug. . ."

    Thus, on a charge of possessing a Class A drug (maximum 7 years)
    and on proof that the drug in possession of the accused was in
    fact of Class A, it will be no defence for him to persuade the
    jury that he believed it to be of Class B (maximum 5 years) or
    Class C (maximum 2 years). In other words the only mens rea
    required for the offence of possessing a drug in any specified
    Class is knowledge that it was a controlled drug. I have chosen
    the offence of possession to illustrate the point, but section 28
    also applies to a number of other offences where, without such a
    provision as is found in subsection (3), the almost insurmountable
    difficulty, to which I have earlier alluded, of proving the
    appropriate guilty knowledge, would arise. By section 26, on the
    other hand, the maximum sentences for offences under section 304
    of the Customs and Excise Act 1952 connected with the
    importation of prohibited goods were raised to the limits which we
    still find in section 170 and Schedule 1 of the Act of 1979, viz.
    14 years in relation to drugs of Class A or Class B, 5 years in
    relation to drugs of Class C, and these drug-related importation
    offences are not made subject to the provisions of section 28(3) or
    to any other provision to the like effect. The only possible
    explanation for this is that the Act of 1971 was drafted on the
    footing that the decision in Reg. v. Hussain [1969] 2 Q.B. 567
    made any such provision unnecessary. Irrespective of the different
    penalties attached to offences in connection with the importation
    of different categories of prohibited goods, Reg. v. Hussain
    established that the only mens rea necessary for proof of any such
    offence was knowledge that the goods were subject to a
    prohibition on importation. Had it been decided otherwise, as the
    appellant submits it should have been, it is surely inconceivable
    that Parliament, in the Act of 1971, would not have made
    provision such as that which we see in section 28(3) applicable to
    drug related offences connected with importation. It follows, in
    my opinion, that the decision in Reg. v. Hussain has effectively
    been adopted and endorsed by the legislature and thus remains
    good law.

    As I have already said, the criticism of the passage quoted
    from the judge's summing-up based on the submission that Reg. v.
    Hussain
    and Reg. v. Hennessey (Timothy) (1978) 68 Cr. App. R.
    419 ought to be overruled is in a sense academic, in that the
    prosecution's case against the appellant depended, not on the
    actual character of the goods in the importation of which the
    appellant had been concerned, but on what the appellant believed
    the character of those goods to be. The narrower criticism of the
    judge's direction concentrates on that aspect of the case. In such
    a case, it is submitted, if the prosecution can establish an attempt
    to commit an offence at all on the basis of the appellant's
    mistaken belief, the attempted offence under section 170 of the
    Act of 1979 can only be related to the attempted importation of a
    drug of Class A or Class B, thus bringing it within the category of
    offences attracting a maximum penalty of 14 years' imprisonment,
    if the appellant's mistaken belief was that it was a drug of Class
    A or Class B. From this it follows, the submission continues, that

    - 8 -

    it was a misdirection to tell the jury that they should convict the
    appellant if they were sure "that he knew or believed the
    substance was heroin or, in his own expression, dried hash or
    cannabis (which is also prohibited) or some other prohibited drug."
    I think this submission is strictly correct and that the words "or
    some other prohibited drug" amounted to a technical misdirection.
    However, I am satisfied it cannot in any way have misled the jury
    or diverted them from the only issue which, on the evidence, they
    had to decide. The appellant's defence, which the jury not
    surprisingly rejected, was that he had himself tested the powdered
    substance in question, both before and after importation, and found
    it to be harmless. The case for the Crown depended on his own
    admissions. These supported the case that all material times until
    after his arrest the appellant believed the imported packages to
    contain either heroin or cannabis. No other drug was ever
    mentioned. The misdirection occasioned no miscarriage of justice
    and, so far as this point is concerned, it is a case for the
    application of the proviso to section 2(1) of the Criminal Appeal
    Act 1968.

    The certified question depends on the true construction of
    the Criminal Attempts Act 1981. That Act marked an important
    new departure since, by section 6, it abolished the offence of
    attempt at common law and substituted a new statutory code
    governing attempts to commit criminal offences. It was
    considered by your Lordships' House last year in Anderton v. Ryan
    [1985] AC 560 after the decision in the Court of Appeal which is
    the subject of the present appeal. That might seem an
    appropriate starting point from which to examine the issues arising
    in this appeal. But your Lordships have been invited to exercise
    the power under the Practice Statement (Judicial Precedent) [1966]
    1 W.L.R. 1234 to depart from the reasoning in that decision if it
    proves necessary to do so in order to affirm the convictions
    appealed against in the instant case. I was not only a party to
    the decision in Anderton v. Ryan, I was also the author of one of
    the two opinions approved by the majority which must be taken to
    express the House's ratio. That seems to me to afford a sound
    reason why, on being invited to re-examine the language of the
    statute in its application to the facts of this appeal, I should
    initially seek to put out of mind what I said in Anderton v. Ryan.
    Accordingly I propose to approach the issue in the first place as
    an exercise in statutory construction, applying the language of the
    Act to the facts of the case, as if the matter were res Integra.
    If this leads me to the conclusion that the appellant was not
    guilty of any attempt to commit a relevant offence, that will be
    the end of the matter. But if this initial exercise inclines me to
    reach a contrary conclusion, it will then be necessary to consider
    whether the precedent set by Anderton v. Ryan bars that
    conclusion or whether it can be surmounted either on the ground
    that the earlier decision is distinguishable or that it would be
    appropriate to depart from it under the Practice Statement.

    The Act of 1981 provides by section 1:

    "(1) If, with intent to commit an offence to which
    this section applies, a person does an act which
    is more than merely preparatory to the
    commission of the offence, he is guilty of
    attempting to commit the offence.

    - 9 -

    1. A person may be guilty of attempting to
      commit an offence to which this section applies
      even though the facts are such that the
      commission of the offence is impossible.

    2. In any case where -


    1. apart from this subsection a person's intention
      would not be regarded as having amounted to
      an intent to commit an offence; but

    2. if the facts of the case had been as he
      believed them to be, his intention would be so
      regarded.

    then, for the purposes of subsection (1) above,
    he shall be regarded as having had an intent to
    commit that offence.

    (4) This section applies to any offence which, if it
    were completed, would be triable in England
    and Wales as an indictable offence, other than

    1. conspiracy (at common law or under section 1
      of the Criminal Law Act 1977 or any other
      enactment);

    2. aiding, abetting, counselling, procuring or
      suborning the commission of an offence;

    (c) offences under section 4(1) (assisting offenders)
    or 5(1) (accepting or agreeing to accept
    consideration for not disclosing information
    about an arrestable offence) of the Criminal
    Law Act 1967."

    Applying this language to the facts of the case, the first
    question to be asked is whether the appellant intended to commit
    the offences of being knowingly concerned in dealing with and
    harbouring drugs of Class A or Class B with intent to evade the
    prohibition on their importation. Translated into more homely
    language the question may be rephrased, without in any way
    altering its legal significance, in the following terms: did the
    appellant intend to receive and store (harbour) and in due course
    pass on to third parties (deal with) packages of heroin or cannabis
    which he knew had been smuggled into England from India? The
    answer is plainly yes, he did. Next, did he in relation to each
    offence, do an act which was more than merely preparatory to the
    commission of the offence? The act relied on in relation to
    harbouring was the receipt and retention of the packages found in
    the lining of the suitcase. The act relied on in relation to dealing
    was the meeting at Southall station with the intended recipient of
    one of the packages. In each case the act was clearly more than
    preparatory to the commission of the intended offence; it was not
    and could not be more than merely preparatory to the commission
    of the actual offence, because the facts were such that the
    commission of the actual offence was impossible. Here then is

    - 10 -

    the nub of the matter. Does the "act which is more than merely
    preparatory to the commission of the offence" in section 1(1) of
    the Act of 1981 (the actus reus of the statutory offence of
    attempt) require any more than an act which is more than merely
    preparatory to the commission of the offence which the defendant
    intended to commit? Section 1(2) must surely indicate a negative
    answer; if it were otherwise, whenever the facts were such that
    the commission of the actual offence was impossible, it would be
    impossible to prove an act more than merely preparatory to the
    commission of that offence and subsections (1) and (2) would
    contradict each other.

    This very simple, perhaps over simple, analysis leads me to
    the provisional conclusion that the appellant was rightly convicted
    of the two offences of attempt with which he was charged. But
    can this conclusion stand with Anderton v. Ryan? The appellant in
    that case was charged with an attempt to handle stolen goods.
    She bought a video recorder believing it to be stolen. On the
    facts as they were to be assumed it was not stolen. By a
    majority the House decided that she was entitled to be acquitted.
    I have re-examined the case with care. If I could extract from
    the speech of Lord Roskill or from my own speech a clear and
    coherent principle distinguishing those cases of attempting the
    impossible which amount to offences under the statute from those
    which do not, I should have to consider carefully on which side of
    the line the instant case fell. But I have to confess that I can
    find no such principle.

    Running through Lord Roskill's speech and my own in
    Anderton v. Ryan is the concept of "objectively innocent" acts
    which, in my speech certainly, are contrasted with "guilty acts."
    A few citations will make this clear. Lord Roskill said, at [1985]
    A.C. 560, 580:

    "My Lords, it has been strenuously and ably argued for the
    respondent that these provisions involve that a defendant is
    liable to conviction for an attempt even where his actions
    are innocent but he erroneously believes facts which, if
    true, would make those actions criminal, and further, that
    he is liable to such conviction whether or not in the event
    his intended course of action is completed."

    He proceeded to reject the argument. At p. 582 I referred
    to the appellant's purchase of the video recorder and said:

    "Objectively considered, therefore, her purchase of the
    recorder was a perfectly proper commercial transaction."

    A further passage from my speech proceeded, at pp. 582-583
    as:

    "The question may be stated in abstract terms as follows.
    Does section 1 of the Act of 1981 create a new offence of
    attempt where a person embarks on and completes a course
    of conduct which is objectively innocent, solely on the
    ground that the person mistakenly believes facts which, if
    true, would make that course of conduct a complete crime?
    If the question must be answered affirmatively it requires

    - 11 -

    convictions in a number of surprising cases: the classic case,
    put by Bramwell B. in Reg. v. Collins (1864) 9 Cox C.C.
    497, of the man who takes away his own umbrella from a
    stand, believing it not to be his own and with intent to
    steal it; the case of the man who has consensual intercourse
    with a girl over 16 believing her to be under that age; the
    case of the art dealer who sells a picture which he
    represents to be and which is in fact a genuine Picasso, but
    which the dealer mistakenly believes to be a fake.

    The common feature of all these cases, including that under
    appeal, is that the mind alone is guilty, the act is
    innocent."

    I then contrasted the case of the man who attempts to pick
    the empty pocket, saying:

    "Putting the hand in the pocket is the guilty act, the intent
    to steal is the guilty mind, the offence is appropriately
    dealt with as an attempt, and the impossibility of
    committing the full offence for want of anything in the
    pocket to steal is declared by [subsection (2)] to be no
    obstacle to conviction."

    If we fell into error, it is clear that our concern was to
    avoid convictions in situations which most people, as a matter of
    common sense, would not regard as involving criminality. In this
    connection it is to be regretted that we did not take due note of
    paragraph 2.97 of the Law Commission's report (Criminal Law:
    Attempt, and Impossibility in Relation to Attempt, Conspiracy and
    Incitement (1980) (Law Commission No. 102)) which preceded the
    enactment of the Act of 1981, which reads:

    "If it is right in principle that an attempt should be
    chargeable even though the crime which it is sought to
    commit could not possibly be committed, we do not think
    that we should be deterred by the consideration that such a
    change in our law would also cover some extreme and
    exceptional cases in which a prosecution would be
    theoretically possible. An example would be where a person
    is offered goods at such a low price that he believes that
    they are stolen, when in fact they are not; if he actually
    purchases them, upon the principles which we have discussed
    he would be liable for an attempt to handle stolen goods.
    Another case which has been much debated is that raised in
    argument by Bramwell B. in Reg. v. Collins (1864) 9 Cox
    C.C. 497. If A takes his own umbrella, mistaking it for one
    belonging to B and intending to steal B's umbrella, is he
    guilty of attempted theft? Again, on the principles which
    we have discussed he would in theory be guilty, but in
    neither case would it be realistic to suppose that a
    complaint would be made or that a prosecution would

    ensue."

    The prosecution in Anderton v. Ryan itself falsified the
    Commission's prognosis in one of the "extreme and exceptional
    cases." It nevertheless probably holds good for other such cases,
    particularly that of the young man having sexual intercourse with
    a girl over 16, mistakenly believing her to be under that age, by
    which both Lord Roskill and I were much troubled.

    - 12 -

    However that may be, the distinction between acts which
    are "objectively innocent" and those which are not is an essential
    element in the reasoning in Anderton v; Ryan and the decision,
    unless it can be supported on some other ground, must stand or
    fall by the validity of this distinction. I am satisfied on further
    consideration that the concept of "objective innocence" is incapable
    of sensible application in relation to the law of criminal attempts.
    The reason for this is that any attempt to commit an offence
    which involves "an act which is more than merely preparatory to
    the commission of the offence" but for any reason fails, so that in
    the event no offence is committed, must ex hypothesi, from the
    point view of the criminal law, be "objectively innocent." What
    turns what would otherwise, from the point of view of the
    criminal law, be an innocent act into a crime is the intent of the
    actor to commit an offence. I say "from the point of view of the
    criminal law" because the law of tort must surely here be quite
    irrelevant. A. puts his hand into B.'s pocket. Whether or not
    there is anything in the pocket capable of being stolen, if A.
    intends to steal, his act is a criminal attempt; if he does not so
    intend, his act is innocent. A. plunges a knife into a bolster in a
    bed. To avoid the complication of an offence of criminal damage,
    assume it to be A.'s bolster. If A. believes the bolster to be his
    enemy B. and intends to kill him, his act is an attempt to murder
    B.; if he knows the bolster is only a bolster, his act is innocent.
    These considerations lead me to the conclusion that the distinction
    sought to be drawn in Anderton v. Ryan between innocent and
    guilty acts considered "objectively" and independently of the state
    of mind of the actor cannot be sensibly maintained.

    Another conceivable ground of distinction which was to some
    extent canvassed in argument, both in Anderton v. Ryan and in the
    instant case, though no trace of it appears in the speeches in
    Anderton v. Ryan, is a distinction which would make guilt or
    innocence of the crime of attempt in a case of mistaken belief
    dependent on what, for want of a better phrase, I will call the
    defendant's dominant intention. According to the theory necessary
    to sustain this distinction, the appellant's dominant intention in
    Anderton v. Ryan was to buy a cheap video recorder; her belief
    that it was stolen was merely incidental. Likewise in the
    hypothetical case of attempted unlawful sexual intercourse, the
    young man's dominant intention was to have intercourse with the
    particular girl; his mistaken belief that she was under 16 was
    merely incidental. By contrast, in the instant case the appellant's
    dominant intention was to receive and distribute illegally imported
    heroin or cannabis.

    Whilst I see the superficial attraction of this suggested
    ground of distinction, I also see formidable practical difficulties in
    its application. By what test is a jury to be told that a
    defendant's dominant intention is to be recognised and distinguished
    from his incidental but mistaken belief? But there is perhaps a
    more formidable theoretical difficulty. If this ground of
    distinction is relied on to support the acquittal of the appellant in
    Anderton v. Ryan, it can only do so on the basis that her
    mistaken belief that the video recorder was stolen played no
    significant part in her decision to buy it and therefore she may be
    acquitted of the intent to handle stolen goods. But this line of
    reasoning runs into head-on collision with section 1(3) of the Act

    - 13 -

    of 1981. The theory produces a situation where, apart from the
    subsection, her intention would not be regarded as having amounted
    to any intent to commit an offence. Section l(3)(b) then requires
    one to ask whether, if the video recorder had in fact been stolen,
    her intention would have been regarded as an intent to handle
    stolen goods. The answer must clearly be yes, it would. If she
    had bought the video recorder knowing it to be stolen, when in
    fact it was, it would have availed her nothing to say that her
    dominant intention was to buy a video recorder because it was
    cheap and that her knowledge that it was stolen was merely
    incidental. This seems to me fatal to the dominant intention
    theory.

    I am thus led to the conclusion that there is no valid
    ground on which Anderton v. Ryan can be distinguished. I have
    made clear my own conviction, which as a party to the decision
    (and craving the indulgence of my noble and learned friends who
    agreed in it) I am the readier to express, that the decision was
    wrong. What then is to be done? If the case is indistinguishable,
    the application of the strict doctrine of precedent would require
    that the present appeal be allowed. Is it permissible to depart
    from precedent under the Practice Statement (Judicial Precedent)
    [1966] 1 W.L.R. 1234 notwithstanding the especial need for
    certainty in the criminal law? The following considerations lead
    me to answer that question affirmatively. First, I am undeterred
    by the consideration that the decision in Anderton v. Ryan was so
    recent. The Practice Statement is an effective abandonment of
    our pretention to infallibility. If a serious error embodied in a
    decision of this House has distorted the law, the sooner it is
    corrected the better. Secondly, I cannot see how, in the very
    nature of the case, anyone could have acted in reliance on the law
    as propounded in Anderton v. Ryan in the belief that he was
    acting innocently and now find that, after all, he is to be held to
    have committed a criminal offence. Thirdly, to hold the House
    bound to follow Anderton v. Ryan because it cannot be
    distinguished and to allow the appeal in this case would, it seems
    to me, be tantamount to a declaration that the Act of 1981 left
    the law of criminal attempts unchanged following the decision in
    Reg. v. Smith (Roger) [1975] AC 476. Finally, if. contrary to my
    present view, there is a valid ground on which it would be proper
    to distinguish cases similar to that considered in Anderton v. Ryan,
    my present opinion on that point would not foreclose the option of
    making such a distinction in some future case.

    I cannot conclude this opinion without disclosing that I have
    had the advantage, since the conclusion of the argument in this
    appeal, of reading an article by Professor Glanville Williams
    entitled "The Lords and Impossible Attempts, or Quis Custodiet
    Ipsos Custodes?
    "[1986] C.L.J. 33. The language in which he
    criticises the decision in Anderton v. Ryan is not conspicuous for
    its moderation, but it would be foolish, on that account, not to
    recognise the force of the criticism and churlish not to
    acknowledge the assistance I have derived from it.

    I would answer the certified question in the affirmative and
    dismiss the appeal.

    - 14 -

    LORD MACKAY OF CLASHFERN
    My Lords,

    I have had the advantage of reading in draft the speeches
    prepared by my noble and learned friends the Lord Chancellor and
    Lord Bridge of Harwich. I agree with the disposal of this appeal
    proposed by my noble and learned friend Lord Bridge of Harwich.
    On the relatively minor point referred to in the speech of the
    Lord Chancellor in which he differs from Lord Bridge I agree with
    the Lord Chancellor's view. Otherwise I agree with the reasons
    given by my noble and learned friend Lord Bridge of Harwich.

    - 15 -


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