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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sweet v Parsley [1969] UKHL 1 (23 January 1969) URL: http://www.bailii.org/uk/cases/UKHL/1969/1.html Cite as: [1970] AC 132, [1969] UKHL 1 |
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Parliamentary
Archives,
HL/PO/JU/4/3/1188
HOUSE OF LORDS
SWEET (A.P.)
v.
PARSLEY
Lord
Reid
Lord Morris of Borth-y-Guest
Lord Pearce
Lord Wilberforce
Lord Diplock
Lord Reid
MY LORDS,
The
Appellant was convicted at Woodstock Petty Sessions on 14th
September
1967 on a charge that on the 16th June 1967 she was concerned
in
the management of certain premises at Fries Farm, Oxfordshire,
which
were used for the purpose of smoking cannabis contrary to
section 5(6) of the
Dangerous Drugs Act 1965. She was fined £25
and ordered to pay £12 18s. 0d.
costs. It appears from the
Case Stated by the Justices that the tenant of this
farm had
sublet the farmhouse to her at a rent of £28 per four weeks.
She
was a teacher at a school in Oxford and she had intended to
reside in this
house and travel daily by car to Oxford. This
proved to be impracticable
so she resided in Oxford and let rooms
in the house at low rents to tenants
allowing them the common use
of the kitchen. She retained one room for her
own use and visited
the farm occasionally to collect her letters, to collect
rent from
her tenants and generally to see that all was well. Sometimes
she
stayed overnight but generally she did not.
On 16th
June, while she was in Oxford, the police went to the premises
with
a search warrant. They found receptacles hidden in the garden
which
contained cannabis resin and L.S.D. They also found in the
kitchen cigarette
ends containing cannabis, and an ornamental
hookah pipe which belonged to
the Appellant and which had,
admittedly without her knowledge, been used
for smoking this
substance.
The
Justices found that " she did not enter the rooms of tenants
except
" by invitation and she had no reason to go into their
rooms. Her own room
" was occasionally used in her absence by
other persons who lived in the house.
" She had no knowledge
whatever that the house was being used for the
" purpose of
smoking cannabis or cannabis resin. Once or twice when staying
"
overnight at the farmhouse the Appellant shouted if there was
excessive
" noise late at night but otherwise she did not
exercise any control over the
" tenants except that she
collected rent from them ".
A
Divisional Court dismissed her appeal, holding that she had
been
concerned in the management of those premises. The reasons
given for
holding that she was managing the property were that she
was in a position
to choose her tenants: that she could put them
under as long or as short
a tenancy as she desired: and that she
could make it a term of any letting
that smoking of cannabis was
not to take place. All these reasons would
apply to every occupier
who lets out parts of his house or takes in lodgers
or paying
quests. But this was held to be an absolute offence following
the
earlier decision in Yeandel v. Fisher [1966] 1
Q.B. 440.
How has it
come about that the Court of Appeal has felt bound to reach
such
an obviously unjust result? It has in effect held that it was
carrying
out the will of Parliament because Parliament has chosen
to make this an
absolute offence. And of course if Parliament has
so chosen the Courts must
carry out its will, and they cannot be
blamed for any unjust consequences. But
has Parliament so chosen?
I dealt
with this matter at some length in Warner v. Metropolitan
Police
Commissioner [1968] 2 All E.R. 356. On reconsideration
I see no reason to
alter anything which I there said. But I think
that some amplification is
necessary. Our first duty is to
consider the words of the Act: if they shew
a clear intention to
create an absolute offence that is an end of the matter.
But such
cases are very rare. Sometimes the words of the section which
creates
a particular offence make it clear that mens rea is required
in one
2
form or
another. Such cases are quite frequent. But in a very large number
of
cases there is no clear indication either way. In such cases there
has for
centuries been a presumption that Parliament did not
intend to make criminals
of persons who were in no way blameworthy
in what they did. That means
that whenever a section is silent as
to mens rea there is a presumption that,
in order to give
effect to the will of Parliament, we. must read in words
appropriate
to require mens rea.
Where it
is contended that an absolute offence has been created, the words
of
Alderson B. in Attorney-General v. Lockwood 9 R.W. 378
have often been
quoted:
" The
rule of law, I take it, upon the construction of all statutes, and
"
therefore applicable to the construction of this, is, whether they be
penal
" or remedial, to construe them according to the plain
literal and
" grammatical meaning of the words in which they
are expressed unless
" that construction leads to a plain and
clear contradiction of the apparent
" purpose of the Act or
to some palpable and evident absurdity." (page
398)
That is
perfectly right as a general rule and where there is no
legal
presumption. But what about the multitude of criminal
enactments where
the words of the Act simply make it an offence to
do certain things but
where everyone agrees that there cannot be a
conviction without proof of
mens rea in some form? This
passage, if applied to the present problem,
would mean that there
is no need to prove mens rea unless it would be " a
"
plain and clear contradiction of the apparent purpose of the Act"
to
convict without proof of mens rea. But that would be
putting the presumption
the wrong way round: for it is firmly
established by a host of authorities that
mens rea is an
essential ingredient of every offence unless some reason can
be
found for holding that that is not necessary.
It is also
firmly established that the fact that other sections of the
Act
expressly require mens rea, for example because they
contain the word
" knowingly ", is not in itself
sufficient to justify a decision that a section
which is silent as
to mens rea creates an absolute offence. In the absence of
a
clear indication in the Act that an offence is intended to be an
absolute
offence, it is necessary to go outside the Act and
examine all relevant
circumstances in order to establish that this
must have been the intention
of Parliament. I say " must have
been " because it is a universal principle
that if a penal
provision is reasonably capable of two interpretations,
that
interpretation which is most favourable to the accused must
be adopted.
What,
then, are the circumstances which it is proper to take into
account?
In the well known case of Sherras v. de Rutzen
[1895] 1 Q.B. 918 Wright J.
only mentioned the subject matter
with which the Act deals. But he was
there dealing with something
which was one of a class of acts which " are
" not
criminal in any real sense but are acts which in the public
interest
" are prohibited under a penalty ". It does not
in the least follow that when
one is dealing with a truly criminal
act it is sufficient merely to have regard
to the subject matter
of the enactment. One must put oneself in the position
of a
legislator. It has long been the practice to recognise absolute
offences
in this class of quasi-criminal acts, and one can safely
assume that, when
Parliament is passing new legislation dealing
with this class of offences, its
silence as to mens rea means
that the old practice is to apply. But when one
comes to acts of a
truly criminal character, it appears to me that there are
at least
two other factors which any reasonable legislator would have in
mind.
In the first place a stigma still attaches to any person convicted of
a
truly criminal offence, and the more serious or more disgraceful
the offence
the greater the stimga. So he would have to consider
whether, in a case of
this gravity, the public interest really
requires that an innocent person should
be prevented from proving
his innocence in order that fewer guilty men may
escape. And
equally important is the fact that fortunately the Press in
this
country are vigilant to expose injustice and every manifestly
unjust conviction
made known to the public tends to injure the
body politic by undermining
public confidence in the justice of
the law and of its administration. But I
3
regret to
observe that, in some recent cases where serious offences have
been
held to be absolute offences, the Court has taken into account no
more
than the wording of the Act and the Character and seriousness
of the
mischief which constitutes the offence.
The choice
would be much more difficult if there were no other way
open than
either mens rea in the full sense or an absolute offence; for
there
are many kinds of case where putting on the prosecutor the
full burden of
proving mens rea creates great difficulties
and may lead to many unjust
acquittals. But there are at least two
other possibilities. Parliament has not
infrequently transferred
the onus as regards mens rea to the accused, so that,
once
the necessary facts are proved, he must convince the jury that
on
balance of probabilities he is innocent of any criminal
intention. I find it
a little surprising that more use has not
been made of this method: but
one of the bad effects of the
decision of this House in Woolmington's case
[1935] A.C. 462 may have been to discourage its use. The other method
would be
in effect to substitute in appropriate classes of cases gross
negligence
for mens rea in the full sense as the mental
element necessary to constitute
the crime. It would often be much
easier to infer that Parliament must have
meant that gross
negligence should be the necessary mental element than
to infer
that Parliament intended to create an absolute offence. A variant
of
this would be to accept the view of Cave J. in Reg. v. Tolson
23 Q.B.D.
165 at page 181. This appears to have been done in
Australia where authority
appears to support what Sir Owen Dixon
said in Proudman v. Dayman
[1941] 67 C.L.R. 536 at
page 540:
" As
a general rule an honest and reasonable belief in a state of facts
"
which, if they existed, would make the defendant's act innocent
affords
" an excuse for doing what would otherwise be an
offence."
It may be
that none of these methods is wholly satisfactory but at least
the
public scandal of convicting on a serious charge persons who are in
no
way blameworthy would be avoided.
If this
section means what the Court of Appeal have held that it means,
then
hundreds of thousands of people who sublet part of their premises
or
take in lodgers or are concerned in the management of
residential premises
or institutions are daily incurring a risk of
being convicted of a serious offence
in circumstances where they
are in no way to blame. For the greatest vigilance
cannot prevent
tenants, lodgers or inmates or guests whom they bring in
from
smoking cannabis cigarettes in their own rooms. It was suggested
in
argument that this Appellant brought this conviction on herself
because it
is found as a fact that when the police searched the
premises there were
people there of the " beatnik fraternity
". But surely it would be going a
very long way to say that
persons managing premises of any kind ought to
safeguard
themselves by refusing accommodation to all who are of slovenly
or
exotic appearance, or who bring in guests of that kind. And
unfortunately
drug taking is by no means confined to those of
unusual appearance.
Speaking
from a rather long experience of membership of both Houses, I
assert
with confidence that no Parliament within my recollection would
have
agreed to make an offence of this kind an absolute offence if
the matter had
been fully explained to it. So, if the Court ought
only to hold an offence to
be an absolute offence where it appears
that that must have been the intention
of Parliament, offences of
this kind are very far removed from those which
it is proper to
hold to be absolute offences.
I must now
turn to the question what is the true meaning of section 5 of
the
1965 Act. It provides:
" If a person:
"
(a) being the occupier of any premises, permits those premises
"
to be used for the purpose of smoking cannabis or cannabis resin
"
or of dealing in cannabis or cannabis resin (whether by sale or
"
otherwise); or
4
" (b)
is concerned in the management of any premises used for
"
any such purpose as aforesaid:
" he shall be guilty of an offence against this Act."
We are
particularly concerned with paragraph (b), and the first
question is
what is meant by " used for any such purpose ".
Is the " purpose " the
purpose of the smoker or the
purpose of the management? When in Warner's
case I dealt
briefly with Yeandel's case I thought it was the purpose of
the
smoker, but fuller argument in the present case brought out
that an identical
provision occurs in section 8(d) which
deals with opium. This latter pro-
vision has been carried on from
the Dangerous Drugs Act 1920 and has
obviously been copied into
the later legislation relating to cannabis. It
would require
strong reasons—and there are none—to justify giving
this
provision a new meaning in section 5 different from that
which it had in the
1920 Act and now has in section 8 of the 1965
Act. I think that in section 8
it is clear that the purpose is the
purpose of the management. The first
purpose mentioned is the
purpose of the preparation of opium for smoking
which can only be
a purpose of the management. I believe that opium
cannot be smoked
casually anywhere at any time as can a cannabis cigarette.
The
section is dealing with " opium dens " and the like when
the use of
opium is the main purpose for which the premises are
used. But it is a
somewhat strained use of language to say that an
ordinary room in a house is
" used for the purpose " of
smoking cannabis when all that happens is that
some visitor lights
a cannabis cigarette there. Looking to the origin and
context of
this provision, I have come to the conclusion that it cannot be
given
this wide meaning. No doubt this greatly reduces the scope of
this
provision when applied to the use of cannabis. But that is
apt to happen
when a draftsman simply copies an existing provision
without regard to the
different circumstances in which it is to
operate. So if the purpose is the
purpose of the management the
question whether the offence with regard to
opium in 1920 and now
with regard to cannabis can hardly arise. It could
only arise if,
although the manager not only knew about cannabis smoking
but
conducted the premises for that purpose, some person concerned in
the
management had no knowledge of that. One would first have to
decide
whether a person who is not actually assisting in the
management can be
regarded as being " concerned in the
management" although ignorant of the
purpose for which the
manager was using the premises. Even if such a
person could be
regarded as " concerned in the management" I am of
opinion
that, for the reasons which I have given, he could not be
convicted
without proof of mens rea.
I would allow the appeal and quash the Appellant's conviction.
Lord Morris of Borth-y-Gest
MY LORDS,
It has
frequently been affirmed and should unhesitatingly be recognised
that
it is a cardinal principle of our law that mens rea, an evil
intention or
a knowledge of the wrongfulness of the act, is in all
ordinary cases an
essential ingredient of guilt of a criminal
offence. It follows from this that
there will not be guilt of an
offence created by statute unless there is mens
rea or
unless Parliament has by the statute enacted that guilt may
be
established in cases where there is no mens rea.
To this
effect were the words of Wright J. in Sherras v. De Rutzen
[1895]
1 Q.B.D. 918 and in Derbyshire v. Houlston in
1897 (66 L.J. Q.B.569). In
the judgment of the Privy Council in
Lim Chin Aik v. The Queen [1963]
A.C. 160 the principle was
amply expressed. At page 172 it was said:
" That proof of the
existence of a guilty mind is an essential ingredient of
a crime
at common law is not at all in doubt."
5
But as
Parliament is supreme it is open to Parliament to legislate in
such
a way that an offence may be created of which someone may be
found
guilty though mens rea is lacking. There may be cases
in which, as
Channell J. said (at page 11) in Pearks Gunston &
Tee Ltd. v. Southern
Counties Dairies Ltd. [1902] 2 K.B.1—"the
Legislature has thought it so
important to prevent the particular
act from being committed that it
absolutely forbids it to be done;
and if it is done the offender is liable to
a penalty whether he
had any mens rea or not and whether or not he
intended to
commit a breach of the law ".
Thus in
diverse situations and circumstances and for any one of a
variety
of reasons Parliament may see fit to create offences and make
people
responsible before criminal courts although there is an
absence of mens rea.
But I would again quote with
appreciation (as I did in Warner's case the
words of Lord
Goddard C.J., in Brend v. Wood [1946] (175 L.T. 306),
when
he said (at page 307)—
" It
is of the utmost importance for the protection of the liberty
"
of the subject that a Court should always bear in mind that unless
"
a statute either clearly or by necessary implication rules out mens
"
rea as a constituent part of a crime, the Court should not
find a
" man guilty of an offence against the criminal law
unless he has a
" guilty mind."
The
intention of Parliament is expressed in the words of an
enactment.
The words must be looked at in order to see whether
either expressly or
by necessary implication they displace the
general rule or presumption that
mens rea is a necessary
prerequisite before guilt of an offence can be found.
Particular
words in a statute must be considered in their setting in the
statute
and having regard to all the provisions of the statute and to
its
declared or obvious purpose. In 1848 in Attorney-General v.
Lockwood
9 M. & W. 378 Alderson B. at page 398 said—
" The rule of law, I take it, upon the construction of all statutes
" . . . . is whether they be penal or remedial, to construe them
"
according to the plain literal and grammatical meaning of the words
"
in which they are expressed, unless that construction leads to a
"
plain and clear contradiction of the apparent purpose of the Act
"
or to some palpable and evident absurdity."
It must be
considered, therefore, whether by the words of a penal statute
it
is either express or implied that there may be a conviction without
mens
rea or, in other words, whether what is called an
absolute offence is created.
In Dyke
v. Elliott, The " Gauntlet" L.R.4 P.C. App. 184
it was said
at page 191—
" No
doubt all penal statutes are to be construed strictly, that is to
"
say, the Court must see that the thing charged as an offence is
within
" the plain meaning of the words used, and must not
strain the words
" on any notion that there has been a slip,
that there has been a casus
" omissus, that the
thing is so clearly within the mischief that it must
" have
been intended to be included and would have been included if
"
thought of. On the other hand, the person charged has a right to
"
say that the thing charged, although within the words, is not
within
" the spirit of the enactment. But where the thing is
brought within
" the words and within the spirit, there a
penal enactment is to be
" construed, like any other
instrument, according to the fair common-
" sense meaning of
the language used, and the Court is not to find or
" make any
doubt or ambiguity in the language of a penal statute,
"
where such doubt or ambiguity would clearly not be found or made
"
in the same language in any other instrument."
The
inquiry must be made, therefore, whether Parliament has used
words
which expressly enact or impliedly involve that an absolute
offence is
created. Though sometimes help in construction is
derived from noting
the presence or the absence of the word "
knowingly " no conclusive test
6
can be
laid down as a guide in finding the fair, reasonable and
common-
sense meaning of language. But in considering whether
Parliament has
decided to displace what is a general and somewhat
fundamental rule it
would not be reasonable lightly to impute to
Parliament an intention to
create an offence in such a way that
someone could be convicted of it who
by all reasonable and
sensible standards is without fault.
There have
been many cases in recent periods in which in reference
to a
variety of different statutory enactments questions have been
raised
whether absolute offences have been created. Some of these
cases illustrate
the difficulties that are created if Parliament
uses language or phrases as to
the meaning of which legitimate
differences of opinion can arise. I do not
propose to recite or
survey these cases because, in my view, the principles
which
should guide construction are clear and, save to the extent
that
principles are laid down, the cases merely possess the
interest which is
yielded by seeing how different questions have,
whether correctly or in-
correctly, been decided in reference to
varying sets of words in various
different statutes.
The
question must always be—what has Parliament enacted? That is
the
question in the present case and to that I now turn. The
wording of section 5
of the Dangerous Drugs Act, 1965, is as
follows: —
" 5. If a person—
" (a)
being the occupier of any premises, permits those premises
"
to be used for the purpose of smoking cannabis or cannabis resin
"
or of dealing in cannabis or cannabis resin (whether by sale or
"
otherwise); or
" (b)
is concerned in the management of any premises used for
"
any such purpose as aforesaid he shall be guilty of an offence
"
against this Act."
The words
are nearly the same as and presumably were devised from words
in
section 5 of the Dangerous Drugs Act, 1920, concerning opium.
In the
present case the Appellant was charged with being concerned in
the
management of certain premises situate at Fries Farm which
were used for
the purpose of smoking cannabis or cannabis resin. I
need not recite the
facts which are set out in the Case Stated.
It was for
the prosecution to prove the guilt of the Appellant. It was
found
by the Magistrates that the Appellant had no knowledge
whatsoever
that cannabis had been smoked in the house. The
prosecution contended
that guilt can be established of the offence
created by section 5(b) if a person
is concerned in the
management of premises in which cannabis is in fact
smoked. The
consequence was acknowledged and indeed asserted that if
some
persons managed a hostel containing say 50 to 100 rooms, and if
on
one day in one room an occupant smoked one cannabis cigarette
without the
knowledge of the persons managing, they would have no
defence to a charge
under section 5(b). If Parliament has
so enacted, then the law must be
enforced. But I am sure that that
is not what Parliament has decreed.
If someone
is concerned in management there must at least be knowledge
of
what it is that is being managed: otherwise there could be no concern
in
it. If someone is concerned in the management of a building
containing a
number of separately let residential flats the
concern in such case would be in
the arrangements for the lettings
and in the arrangements relating to lifts or
staircases or the
structure of the building as a whole. The concern would be
in the
management of premises used for residential purposes. In the
ordinary
course of things the landlord or the manager would have
no right of entry
into a flat and would have no concern with any
normal reasonable and
lawful activity within a flat. If a tenant,
who was a non-smoker, had a
guest one day who smoked a pipe of
tobacco in the flat, it would be a
strained and unnatural use of
language to describe the flat which the tenant
rented as being
premises used for the purpose of smoking. It would be
7
equally
strained and unnatural to describe the landlord or his agent as
being
concerned in the management of premises used for the purpose
of smoking.
If on an isolated occasion a tenant gave a showing of
some cinematograph
films to his friends, it would be unreasonable
to describe the manager of the
flats (who had no occasion to know
of the film showing) as being one who
was concerned in the
management of premises used for the purpose of
exhibiting films.
If a
tenant took sugar with his tea it would be fanciful to describe the
flat
as premises used for the purpose of putting sugar into tea.
It seems
to me, therefore, that the words " premises used for the purpose
of
smoking cannabis " are not happily chosen if they were
intended to denote
premises in which at any time cannabis is
smoked. In my opinion, the words
" premises used for the
purpose of ..." denote a purpose which is other
than quite
incidental or casual or fortuitous: they denote a purpose which is
or
has become either a significant one or a recognised one though
certainly
not necessarily an only one. There is no difficulty in
appreciating what is
meant if it is said that premises are used
for the purposes of a dance hall or
a billiard hall or a bowling
alley or a hairdressing saloon or a cafe. A new
or additional use
might, however, arise. It might happen that a house let as
a
private dwelling might come to be used as a brothel or for the
purposes of
prostitution. A room let for private occupation might
come to be the resort
of a number of people who wished to smoke
opium so that the time would
come when the room could rationally
be described as a room used for the
purpose of smoking opium.
The words
" concerned in the management of premises used for the
purpose
of " are, in my view, to be considered together and as one
phrase.
Even so the phrase may be capable of two meanings. It
could denote the
management of premises used for a certain purpose
in the sense that the
management is limited to management in
respect of the premises themselves.
It could denote the management
of premises used for a certain purpose in
the sense that the
management was concerned either additionally or perhaps
separately
with the purpose for which the premises were used. Thus, if
someone
is said so be concerned in the management of premises used for
the
purpose of dancing, he could be someone concerned only in the
manage-
ment of the premises themselves, or he could be someone
who additionally
or possibly separately was concerned with the
dancing. On either approach
and with an ordinary use of words, it
would seem to me that the person
would be one who would have and
would need to have knowledge of the
use of the premises for the
particular purpose.
It
is said that the intention of Parliament was to impose a duty on
all
persons concerned in the management of any premises to
exercise vigilance
to prevent the smoking of cannabis. If that had
been the intention of
Parliament different words would have been
used. It would be possible
for Parliament to enact, though it
would be surprising if it did, that if
anyone should at any time
smoke cannabis on any premises then all those
concerned in the
management of those premises, whether they knew of the
smoking or
not, should automatically be guilty of a criminal offence. Yet
this
is in effect what it is now said that Parliament has enacted. The
impli-
cations are astonishing. Parliament would not only be
indirectly imposing a
duty upon persons concerned in the
management of any premises requiring
them to exercise complete
supervision over all persons who enter the
premises to ensure that
no one of them should smoke cannabis, but Parlia-
ment would be
enacting that the persons concerned in the management would
become
guilty of an offence if, unknown to them, someone by
surreptitiously
smoking cannabis eluded the most elaborately
devised measures of super-
vision. There would not be guilt by
reason of anything done nor even by
reasons of any carelessness,
but by reason of the unknown act of some
unknown person whom it
had not been found possible to control. When
the range of possible
punishments is remembered the unlikelihood that
Parliament
intended to legislate in such way becomes additionally apparent.
8
For the
reasons that I have indicated I consider that on a fair reading
of
the phrase "concerned in the management of premises used for
the
" purpose of" a link is denoted between management
and user for a
purpose. To say that someone is concerned in the
management of premises
used for the purpose of smoking cannabis
involves, in my view, that his
management is with knowledge that
the premises are so used. The wording
of section 5(b) contains
positive indications that mens rea is an essential
ingredient
of an offence. Even if, contrary to my view, it is not
affirmatively
enacted that there must be mens rea I cannot
read the wording as enacting
that there need not be mens rea. I
find it wholly impossible to say that
the statute has either
clearly, or by necessary implication, ruled out mens rea
as
a constituent part of guilt.
On the
findings of the magistrates it follows that the Appellant was
not
guilty. I would, therefore, allow the appeal. Accordingly in
my view the
case should be remitted to the Divisional Court with a
direction to quash
the conviction.
Lord Pearce
MY LORDS,
The
prosecution contend that any person who is concerned in
the
management of premises where cannabis is in fact smoked even
once, is
liable, though he had no knowledge and no guilty mind.
This is, they
argue, a practical act intended to prevent a
practical evil. Only by convicting
some innocents along with the
guilty can sufficient pressure be put upon
those who make their
living by being concerned in the management of
premises. Only thus
can they be made alert to prevent cannabis being
smoked there. And
if the prosecution have to prove knowledge or mens
rea, many
prosecutions will fail and many of the guilty will escape. I
find
that argument wholly unacceptable.
The notion
that some guilty mind is a constituent part of crime and
punishment
goes back far beyond our common law. And at common law
mens rea
is a necessary element in a crime. Since the Industrial
Revolution
the increasing complexity of life called into being new
duties and crimes
which took no account of intent. Those who
undertake various industrial
and other activities especially where
these affect the life and health of the
citizen may find
themselves liable to statutory punishment regardless of
knowledge
or intent both in respect of their own acts or neglect and those
of
their servants. But one must remember that normally mens rea
is still an
ingredient of any offence. Before the Court will
dispense with the necessity
for mens rea it has to be
satisfied that Parliament so intended. The mere
absence of the
word " knowingly " is not enough. But the nature of
the
crime, the punishment, the absence of social obloquy, the
particular mischief
and the field of activity in which it occurs,
and the wording of the particular
section and its context, may
show that Parliament intended that the act
should be prevented by
punishment regardless of intent or knowledge.
Viewing
the matter on these principles, it is not possible to accept
the
prosecution's contention. Even granted that this were in the
public health
class of case, such as, for instance, are offences
created to ensure that food
shall be clean, it would be quite
unreasonable. It is one thing to make a
man absolutely responsible
for all his own acts and even vicariously liable for
his servants
if he engages in a certain type of activity. But it is quite
another
matter to make him liable for persons over whom he has no
control. The
innocent hotel-keeper, the lady who keeps lodgings or
takes paying guests,
the manager of a cinema, the warden of a
hostel, the matron of a hospital,
the house-master and matron of a
boarding school, all these, it is conceded,
are on the
prosecution's argument liable to conviction the moment
that
irresponsible occupants smoke cannabis cigarettes. And for
what purpose
is this harsh imposition laid on their backs? No
vigilance by night or day
can make them safe. The most that
vigilance can attain is advance
9
knowledge
of their own guilt. If a smell of cannabis comes from a
sitting-
room, they know that they have committed the offence.
Should they then
go at once to the police and confess their guilt
in the hope that they will not
be prosecuted? They may think it
easier to conceal the matter in the hope
that it may never be
found out. For if, though morally innocent, they are
prosecuted
they may lose their livelihood, for thereafter, even though
not
punished, they are objects of suspicion. I see no real, useful
object achieved
by such hardship to the innocent. And so wide a
possibility of injustice to
the innocent could not be justified by
any benefit achieved in the determent
and punishment of the
guilty. If, therefore, the words creating the offence
are as wide
in their application as the prosecution contend, Parliament
cannot
have intended an offence to which absence of knowledge or mens
rea
is no defence.
Parliament
might, of course, have taken what was conceded in argument
to be a
fair and sensible course. It could have said, in appropriate
words,
that a person is to be liable unless he proves that he had
no knowledge or
guilty mind. Admittedly, if the prosecution have
to prove a defendant's
knowledge beyond reasonable doubt, it may
be easy for the guilty to escape.
But it would be very much harder
for the guilty to escape if the burden of
disproving mens rea
or knowledge is thrown on the defendant. And if
that were
done, innocent people could satisfy a jury of their innocence on
a
balance of probabilities. It has been said that a jury might be
confused
by the different nature of the onus of satisfying "
beyond reasonable doubt"
which the prosecution have to
discharge and the onus " on a balance of
probabilities "
which lies on a defendant in proving that he had no know-
ledge or
guilt. I do not believe that this would be so in this kind of
case.
Most people can easily understand rules that express in
greater detail that
which their own hearts and minds already feel
to be fair and sensible. What
they find hard to understand is
rules that go " against the grain " of their
own
commonsense. If a judge on a drug case, feeling disheartened,
perhaps,
after a close study of Warner's case, had given
the jury no direction as to
the law, and had simply said that they
must consider the facts and do their
best with the charge, I
believe that they would evolve their duty in some
such form as
this ; " First, I suppose, we must make sure that there
really
was drug smoking on the premises " (or "
that he really had drugs on him "
or whatever the
charge may be) "and then it is up to the defendant to
persuade
us that he did not know, or was not guilty for some other good
reason
". If I am right in this surmise, any judicial elaboration of
their own
instinctive reactions would be quite easy for them to
understand.
If it were
possible in some so-called absolute offences to take this
sensible
half-way house, I think that the courts should do so.
This has been referred
to in Warner's case. 1 see no
difficulty in it apart from the opinion of
Viscount Sankey L.C. in
Woolmington's case. But so long as the full width
of that
opinion is maintained, I see difficulty. There are many cases
where
the width of that opinion has caused awkward problems. But
before
reducing that width your Lordships would obviously have to
consider all
the aspects of so far-reaching a problem. In the
present case Miss Heilbron
was wisely loth to involve herself in
this when she had easier and surer paths
to pursue.
The
Australian High Court, founding on Cave J. (at page 181) and
Wills
J. (at 175) in Re Tolson 23 Q.B.D. 168 have evolved a defence
of
reasonable mistake of fact and the burden of proving this on a
balance of
probabilities rests upon the Defendant. The whole
matter is discussed in
an interesting article by Professor Howard
in the Law Quarterly Review
(Volume 76 page 547). He concludes:
"
When a statutory prohibition is cast in terms which at first sight
"
appear to impose strict responsibility, they should be understood
"
merely as imposing responsibility for negligence but emphasising
that
" the burden of rebutting negligence by affirmative
proof of reasonable
" mistake rests upon the defendant.
(Matur v. Mussen [1934] 52 C.L.R.
10
" 100
at page 105, per Dixon J., and at page 108 per Evatt and
"
McTiernan JJ. cf. Sherras v. De Rutzen [1895] 1 Q.B.
918, 921 per
" Day J.)"
That
decision was before Woolmington's case [1935] A.C. 462. In
Thomas
v. The King [1937] 59 C.L.R. 279 the matter
was further discussed, but I
see no reference to Woolmington's
case. I should be happy to be per-
suaded either that it does
not prevent us from adopting such a satisfactory
concept as the
Australian courts have evolved or that its wide effect should
be
limited. But it has not been necessary for the purposes of the
present
case to go fully into that aspect of the matter.
Although
the subsection cannot constitute an absolute offence in the
wide
application for which the prosecution contend, it does not follow
that
on a narrower construction it may not constitute an absolute
offence. By
the term " absolute" I mean an offence to
which the normal assumption
of mens rea does not apply, but
in which the actual words of the offence
(without any additional
implication of mens rea) may well import some
degree of
knowledge, e.g. the word " possession " as in Warner's
case. In
saying that the section relating to possession (which
was there under dis-
cussion) was absolute, I was using it (as the
context was intended to show)
in that loose and convenient sense
which had been used in the argument.
The
history of the subsection and the words themselves lend
strong
support to the view that a narrow meaning was intended. In
the Dangerous
Drugs Act, 1920, section 4 (c) and (d) identical
words are used save that the
" purpose " there was "
the preparation of opium for smoking or the sale
or smoking of
prepared opium" instead of " the purpose of
smoking
cannabis or cannabis resin or of dealing in cannabis or
cannabis resin
whether by sale or otherwise". Section 4 of
the 1920 Act was in fact
re-enacted in section 8 of the 1965 Act
now under consideration. The
words thus taken from the 1920 Act
cannot have a different sense when
used in the 1965 Act,
especially when they are re-enacted in another part
of the 1965
Act itself. Any guide provided by their context in 1920
can,
therefore, be useful in deciding their meaning in 1965, when
applied to
cannabis smoking. The prosecution point out that opium
smoking needs
more paraphernalia and preparation (in what are
sometimes called " opium
dens") and that considerations
applicable to them are out of place in
dealing with cannabis which
may be smoked casually and without prepara-
tion. Anyone may carry
a cannabis cigarette and light it in normal places
and in normal
circumstances of life. But that very fact makes it the
more
unlikely that responsibility for such casual acts of invitees or
licensees
should fall on those who manage premises unless they are
managing them
for just such a purpose.
The whole
context and content of the original section 5 of the 1920 Act
shows
that it was considering premises one of whose " purposes"
was
opium smoking. The " purpose " there referred to is
thus the purpose of
the management or a purpose known to or
acquiesced in by them. I
think that the words which were lifted
from that section and enacted in
relation to cannabis in section 5
of the Dangerous Drugs Act, 1965, must
be given a similar narrow
construction. There was no need to insert the
word "
purpose", if all that was intended was premises where
cannabis
is in fact smoked. Being concerned in the management of
premises used
for the purpose of smoking cannabis necessarily
imports some knowledge
of the use of the premises for the purpose.
Admittedly Miss Sweet had no
knowledge.
I
appreciate that this limitation will, as the prosecution contend, rob
the
section of much of its force. If a wider application or
efficiency were
desired it could be achieved by a change of onus
and a consideration of
what exactly is being required of
landladies and the like. They cannot
reasonably be branded with
guilt whenever there happens to be on their
premises someone who
without their knowledge or assent smokes cannabis.
I would allow the appeal.
11
Lord Wilberforce
MY LORDS,
In my
opinion Miss Stephanie Sweet, who was found to have "no
"
knowledge whatever that (her) house was being used for the purpose
of
" smoking cannabis " ought not to have been
convicted.
Her
conviction was based upon section 5(b) of the Dangerous Drugs
Act,
1965, and upon an interpretation of the words "concerned
in the manage-
" ment of any premises used [for the purpose
of smoking cannabis or cannabis
" resin or of dealing in
cannabis or cannabis resin]" which makes a person
liable to
prosecution who lets, or licenses the occupation of premises,
upon
which cannabis or cannabis resin is smoked or dealt in. It
requires no
amplification to show how wide a category of persons
would thus be brought
into the category of potential offenders.
So, for this appeal, the essential
question is to determine
whether this interpretation is correct.
The words
" concerned in the management" are not, on the face of
them,
very clear, but at least they suggest some technical or
acquired meaning, some
meaning other than one which refers merely
to such common transactions as
letting or licensing the occupation
of premises. For if it had been intended to
penalise anyone who
lets or licenses premises on which cannabis comes to be
smoked, it
would have been easy to do so in simple language. This impression
is
strengthened when the following words of the subsection are read.
They
reflect what I would think to be logically correct—namely,
that one does
not " manage " premises, the inert subject
of a conveyance or a lease, but
rather some human activity on the
premises which the manager has an
interest in directing. And so,
when the subsection speaks of management of
premises, and for a
purpose, I would expect the purpose for which the
premises are
used to be that of the manager: otherwise, what would be
the
nature and object of the management?
A
consideration of previous and analogous legislation removes any
doubt
that these words are intended to refer to such a special and
limited class as I
have described, one which quite clearly
excludes such persons as Miss Sweet.
This legislation deals with
other " anti-social" activities such as the keeping
of
brothels, opium " dens " and gaming houses.
1. The
Criminal Law Amendment Act, 1885, section 13 dealt with the
keeping
of brothels. It penalised a person who " keeps or manages or
acts
" or assists in the management of a brothel ".
It dealt also with persons,
other than managers, tenants,
occupiers, lessors and (by an amendment in
1912) persons in
charge, but in relation to them it stated explicitly the
requirement
of knowledge—" knowingly permits ", " lets with
knowledge ",
" is wilfully party to the continued use ".
These fit in with and emphasise
the conception of purposeful
management.
Substantially
similar language is taken into the modern Sexual Offences
Act,
1956, which refers to managing or acting or assisting in
management.
It is perhaps worth observation that this Act refers
both to " used as a
" brothel " and " used for
the purposes of habitual prostitution ", showing
that when a
convenient noun exists which includes the concept of a
prohibited
purpose, it is adopted, and that " used for the purposes "
is
employed to denote a similar type of situation as to which no
convenient
noun can be found or coined.
2. The
Dangerous Drugs Act, 1921, dealt with opium. The
relevant
sections are reproduced in the Act of 1965 (s. 8), and it
is obvious that
the provisions regarding cannabis are based upon
them. In dealing with
management of premises it seems clear
enough that what is in mind is not
the lessor of premises on which
opium may come to be smoked, but a
manager of what, if a noun is
required, might be called " opium dens "
No doubt opium
smoking is a more elaborate and prolonged process than
smoking of
cannabis, so that the transferance of legislation from
one
activity to the other is not completely appropriate, but the
difference (perhaps
not understood by the draftsman) is not
sufficient to impel us to a fresh
conception of management.
12
3. The use
of the word " management" in relation to gaming houses
goes
back at least to the Gaming Act, 1845 (section 4). The
expression "con-
cerned in the management" is used in
section 5. The Betting Act, 1853
(section 3) combines prohibition
of " permitting " by occupiers and manage-
ment of a
house or place used for the purposes of betting, a
comparable
structure to that of section 5 of the Dangerous Drugs
Act, 1965, I need not
trace this wording through the mountains of
later enactments.
I am left
with no doubt after examination of this legislation that when
the
Dangerous Drugs Act, 1964, (the predecessor of that of 1965)
adopted
in relation to cannabis language which penalised on the
one hand
" permitting to be used " and on the other hand
being " concerned in the
" management of premises used
for the purposes. ..." it must, in the latter
provision, have
had in mind the same kind of purposeful management activity
as was
referred to, in analogous connections, in previous legislation.
One
can describe what is penalised as being concerned in the
management of a
cannabis shop, or a cannabis smoking den or
parlour, a type of activity
which no doubt includes not only one
where this was the direct or main
purpose of the manager, or
person concerned in the management, but also
cases where, by
extension or infiltration and acquiescence, this purpose had
come
to be included in the purposes for which the premises are
being
managed or, one might say, run.
If this is
the correct meaning to extract from the language, when one
considers
that there is also a wide area of penalisation elsewhere of
possession
and of permitting by occupiers, there is a rational
statutory scheme of consider-
able scope. I see no reason to
strain the language of section 5(b) so as to
convert it
into, in effect, an instrument of amateur law enforcement which
may
catch many innocent persons: whether the section, as so interpreted,
is
too severe or not severe enough, is something for Parliament to
consider.
On this
admittedly prosaic interpretation of the subsection, I do not
embark
upon a wider examination of the problem of absolute offences, or
of
guilty intention. As in Warner's case [1968] 2 All E.R.
356 the word
" possession " carried its own content of
mental intention so, perhaps a
fortiori, do the words "
concerned in the management of premises used for the
purpose ..."
and there is no occasion to look beyond them for some
separate
ingredient which might, in fact, be difficult to define.
I would allow the appeal.
Lord Diplock
MY LORDS,
On
premises of which Miss Sweet was the occupier but from which she
was
frequently absent cannabis was smoked without her permission
or
knowledge. She was charged before the Woodstock magistrates
with an
offence under section 5 of the Dangerous Drugs Act, 1965.
She was not
charged under paragraph (a) as an occupier of
premises who "permits those
" premises to be used for
the purpose of smoking cannabis " but under
paragraph (b)
as a person " concerned in the management of ... premises
used
" for that purpose ". She was convicted and fined
£25.
That
conviction was upheld by the Court of Appeal who gave leave to
appeal
to your Lordships' house and certified that the following points
of
law of general public importance are involved in their
decision, viz.:
" (1)
Whether section 5(b) of the Dangerous Drugs Act 1965 creates
"
an absolute offence
" (2)
What, if any, mental element is involved in the offence ; and
"
(since leave to Appeal is given in regard to (1) and (2) above)
" (3)
Whether on the facts found a reasonable bench of Magistrates,
"
properly directing their minds as to the law, could have convicted
the
" Appellant."
13
The
expression " absolute offence" used in the first question
is an
imprecise phrase currently used to describe an act for which
the doer is
subject to criminal sanctions even though when he did
it he had no mens rea,
but mens rea itself also
lacks precision and calls for closer analysis than is
involved in
its mere translation into English by Wright J. in Sherras v.
de
Rutzen [1895] 1 Q.B. 918 as " evil intention or
knowledge of the wrongfulness
" of the act"—a
definition which suggests a single mental element common
to all
criminal offences and appears to omit thoughtlessness which, at
any
rate if it amounted to a reckless disregard of the nature or
consequences of an
act, was a sufficient mental element in some
offences at common law.
A more
helpful exposition of the nature of mens rea in both common
law
and statutory offences is to be found in the judgment of Sir
James Fitzjames
Stephen in R. v. Tolson (1889) 23
Q.B.D. 168. " The full definition of every
" crime "
he said (at page 187) " contains expressly or by implication a
"
proposition as to a state of mind. Therefore if the mental element of
any
" conduct alleged to be a crime is proved to have been
absent in any given
" case the crime so denned has not been
committed ; or again if a crime is
" fully defined nothing
amounts to that crime which does not satisfy that
"
definition."
Where the
crime consists of doing on act which is prohibited by statute
the
proposition as to the state of mind of the doer which is contained in
the
full definition of the crime must be ascertained from the
words and subject-
matter of the statute. The proposition, as
Stephen J. pointed out, may be
stated explicitly by the use of
such qualifying adverbs as " maliciously "
"
fraudently ", " negligently " or " knowingly
"—expressions which in rela-
tion to different kinds of
conduct may call for judicial exegesis. And even
without such
adverbs the words descriptive of the prohibited act may
themselves
connote the presence of a particular mental element. Thus,
where
the prohibited conduct consists in permitting a particular thing to
be
done the word " permit " connotes at least knowledge
or reasonable grounds
for suspicion on the part of the permittor
that the thing will be done and an
unwillingness to use means
available to him to prevent it and, to take a
recent example, to
have in one's " possession " a prohibited substance
con-
notes some degree of awareness of that which was within the
possessor's
physical control (Warner v. Metropolitan
Police Commissioner [1968] 2
All E.R. 356).
But only
too frequently the actual words used by Parliament to define
the
prohibited conduct are in themselves descriptive only of a
physical
act and bear no connotation as to any particular state of
mind on the part
of the person who does the act. Nevertheless, the
mere fact that Parliament
has made the conduct a criminal offence
gives rise to some implication about
the mental element of
the conduct proscribed. It has, for instance, never
been doubted
since McNaghten's case that one implication as to the
mental
element in any statutory offence is that the doer of the
prohibited act should
be sane within the McNaghten rules ; yet
this part of the full definition
of the offence is invariably left
unexpressed by Parliament. Stephen J. in
R. v. Tolson
suggested other circumstances never expressly dealt with in
the
statute where a mental element to be implied from the mere fact
that
the doing of an act was made a criminal offence would be
absent, such as
where it was done in a state of somnambulism or
under duress, to which one
might add inevitable accident. But the
importance of the actual decision of
the nine judges who
constituted the majority in R. v. Tolson which
concerned
a charge of bigamy under section 57 of the Offences
Against the Person
Act, 1861, was that it laid down as a general
principle of construction of any
enactment, which creates a
criminal offence that, even where the words
used to describe the
prohibited conduct would not in any other context
connote the
necessity for any particular mental element, they are never-
theless
to be read as subject to the implication that a necessary element
in
the offence is the absence of a belief held honestly and upon
reasonable
grounds in the existence of facts which if true would
make the act innocent.
14
As was
said by the Privy Council in Bank of New South Wales v.
Piper
[1897] A.C. 383 at pages 389, 390, the absence of
mens rea really consists in
such a belief by the accused.
This
implication stems from the principle that it is contrary to a
rational
and civilised criminal code, such as Parliament must be
presumed to have
intended, to penalise one who has performed his
duty as a citizen to ascertain
what acts are prohibited by law
(ignorantia juris non excusat) and has taken
all proper
care to inform himself of any facts which would make his con-
duct
lawful.
Where
penal provisions are of general application to the conduct
of
ordinary citizens in the course of their everyday life the
presumption is that
the standard of care required of them in
informing themselves of facts which
would make their conduct
unlawful, is that of the familiar common law duty
of care. 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
lightly 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 Urn Chin Aik v. The Queen [1962]
A.C. 160 at page 174).
The
numerous decisions in the English courts since R. v. Tolson
in which
this later inference has been drawn rightly or, as I
think, often wrongly are
not easy to reconcile with others where
the court has failed to draw the
inference, nor are they always
limited to penal provisions designed to
regulate the conduct of
persons who choose to participate in a particular
activity as
distinct from those of general application to the conduct of
ordinary
citizens in the course of their everyday life. It may well be
that
had the significance of R. v. Tolson been
appreciated here, as it was in the
High Court of Australia, our
courts, too, would have been less ready to
infer an intention of
Parliament to create offences for which honest and
reasonable
mistake was no excuse.
Its
importance as a guide to the construction of penal provisions
in
statutes of general application was recognised by Dixon J. in
Maher v.
Musson [1934] 52 C.L.R. 104, and by the
majority of the High Court of
Australia in Thomas v. The
King [1957] 59 C.L.R. 279. It is now regularly
adopted in
Australia as a general principle of construction of
statutory
provisions of this kind.
By
contrast, in England the principle laid down in JR. v. Tolson has
been
overlooked until recently (see R. v. Gould [1968]
1 All.E.R. 849) partly
because the ratio decidendi was
misunderstood by the Court of Criminal
Appeal in R. v.
Wheat, R. v. Stocks [1921] 2 K.B. 119 and partly, I
suspect,
because the reference in R. v. Tolson to
the mistaken belief as being a
"defence" to the charge
of bigamy was thought to run counter to the
decision of your
Lordships' House in Woolmington v. D.P.P. [1935] A.C.
462.
That expression might have to be expanded in the light of what
was
said in Woolmington's case, though I doubt whether a
jury would find the
expansion much more informative than
describing the existence of the
mistaken belief as a defence to
which they should give effect unless they felt
sure either that
the accused did not honestly hold it or, if he did, that he
had no
reasonable grounds for doing so.
15
Woolmington's
case affirmed the principle that the onus lies upon
the
prosecution in a criminal trial to prove all the elements of
the offence with
which the accused is charged. It does not purport
to lay down how that
onus can be discharged as respects any
particular elements of the offence.
This, under our system of
criminal procedure, is left to the common sense
of the jury.
Woolmington's case did not decide anything so irrational
as
that the prosecution must call evidence to prove the absence of
any mistaken
belief toy the accused in the existence of facts
which, if true, would make the
act innocent any more than it
decided that the prosecution must call
evidence to prove the
absence of any claim of right in a charge of larceny.
The jury is
entitled to presume that the accused acted with knowledge of
the
facts, unless there is some evidence to the contrary originating from
the
accused who alone can know on what belief he acted and on what
ground
the belief if mistaken was held. What Woolmington's case
did decide is
that where there is any such evidence the jury after
considering it and also
any relevant evidence called by the
prosecution on the issue of the existence
of the alleged mistaken
belief should acquit the accused unless they feel
sure that he did
not hold the belief or that there were no reasonable grounds
upon
which he could have done so.
This, as I
understand it, is the approach of Dixon J. to the onus of proof
of
honest and reasonable mistaken belief as he expressed it in Proud
man v.
Dayman [1941] 67 C.L.R. 536 at page 541. Unlike the
position where a
statute expressly places the onus of proving lack
of guilty knowledge on the
accused, the accused does not have to
prove the existence of mistaken
belief on the balance of
probabilities ; he has to raise a reasonable doubt as
to its
non-existence.
It has
been objected that the requirement laid down in R. v. Tolson
and
the Bank of New South Wales v. Piper that
the mistaken belief should be
based on reasonable grounds
introduces an objective mental element into
mens rea. This
may be so, but there is nothing novel in this. The test of
the
mental element of provocation which distinguishes manslaughter
from
murder has always been at common law and now is by statute
the objective
one of the way in which a reasonable man would react
to provocation.
There is nothing unreasonable in requiring a
citizen to take reasonable care
to ascertain the facts relevant to
his avoiding doing a prohibited act.
It is,
then, with these principles in mind that I approach the
construction
of section 5 of the Dangerous Drugs Act, 1965, under
which Miss Sweet
was charged. It contains separate prohibitions in
paragraphs (a) and (b)
respectively. The offence
under (a), with which Miss Sweet was not charged,
can only
be committed by the occupier of premises. The act of the
occupier
which is prohibited is to " permit" those
premises to be used for the
purpose of smoking cannabis or
cannabis resin or of dealing in cannabis or
cannabis resin. Here
the word " permits " used to define the prohibited act
in
itself connotes as a mental element of the prohibited conduct
knowledge
or grounds for reasonable suspicion on the part of the
occupier that the
premises will be used by someone for that
purpose and an unwillingness on
his part to take means available
to him to prevent it. As regards this offence
there is no need to
have recourse to the more general implication as to the
need for
mens rea where the words are in themselves descriptive only of
a
physical act.
In
paragraph (b) the phrase "concerned with the management
of any
premises" unlike the phrase " being the occupier
of any premises " in
paragraph (a) is not descriptive
of a class of person to whom a particular
kind of conduct
subsequently defined is prohibited. It is part of the
definition
of the offence itself. The conduct prohibited is to be "
concerned
in the management of premises used for the purpose of
smoking cannabis ".
etc. What, if any, mental element does
this compound phrase connote?
The premises of which it is an
offence to be concerned in the management
are defined not by
reference merely to what happens on them (e.g. " premises
on
which cannabis is smoked ") but by the purpose for which they
are used.
16
"
Purpose" connotes an intention by some person to achieve a
result
desired by him. Whose purpose must it be that the premises
should be used
for smoking cannabis? The answer is, in my opinion,
to be found in the
words " is concerned in the management".
To manage or to be concerned
in the management itself connotes
control or direction of an activity to
achieve a result desired by
those who control or direct the activity. In my
opinion, in the
compound phrase " is concerned in the management of
premises
used for the purpose of smoking cannabis" etc., the
purpose
described must be the purpose of the person concerned in
the management of
the premises.
But at its
highest against Miss Sweet the words of the paragraph are
ambiguous
as to whose is the relevant purpose. That ambiguity in a
penal
statute which, on the alternative construction that it would
be sufficient if
the purpose to use the premises for smoking
cannabis were that of anyone
who in fact smoked cannabis, would
render her liable, despite lack of any
knowledge or acquiescence
on her part, should be unhesitatingly resolved in
her favour.
In view of
the finding that Miss Sweet " had no knowledge whatever that
the
house was being used for the purpose of smoking cannabis or
cannabis
resin " she could not properly be convicted of the
offence charged. I, too,
would allow this appeal.
(323489) 197024 St.S/PA/19 150 1/69