Sweet v Parsley
[1969] 1 All ER 347(Judgment by: Lord Reid)
Between: Sweet
And: Parsley
Judges:
Lord ReidLord Morris of Borth-Y-Gest
Lord Pearce
Lord Wilberforce
Lord Diplock
Subject References:
Drugs
Dangerous drugs
Cannabis
Tenant of house
No knowledge that cannabis being smoked on premises
Rooms in house sublet and in fact used for smoking cannabis
Mental element in statutory offence
Whether tenant concerned in the management of premises used for smoking of cannabis
Criminal Law
Mens rea
Statutory offence
Absolute liability
Concerned in management of premises used for smoking or dealing in cannabis
Examination of relevant circumstances establishing intention of Parliament to create absolute offence
Legislative References:
Dangerous Drugs Act 1965 (c 15) - s 5(b)
Case References:
A-G v Lockwood - (1842) 9 M & W 378; 152 ER 160, affd sub nom
Lockwoood v A-G - (1842) 10 M & W 464; 152 ER 552; 39 Digest (Repl) 270, 116
Bank of New South Wales v Piper - [1897] AC 383; 66 LJPC 73; 76 LT 572; 61 JP 660; 14 Digest (Repl) 32 40
Brend v Wood - (1946) 175 LT 306; 110 JP 317; 17 Digest (Repl) 460, 194
Derbyshire v Houliston - [1897] 1 QB 772; 66 LJQB 569; 76 LT 624; 61 JP 374; 14 Digest (Repl) 36, 60
Dyke v Elliott, The Gauntlet - (1872) LR 4 PC 184; 26 LT 45; 17 ER 373
sub nom R v Elliott - 41 LJAdm 65; 15 Digest (Repl) 877, 8445
Lim Chin Aik v Reginam - [1963] 1 All ER 223; [1963] AC 160; [1963] 2 WLR 42; Digest (Cont Vol A) 23, *166a
M'Naghten's Case - (1843) 10 Cl & Fin 200; [1843-60] All ER Rep 229; 8 ER 718; 14 Digest (Repl) 60, 246
Maher v Musson - (1934) 52 CLR 100
Pearks, Gunston & Tee Ltd v Ward, Hennen v Southern Counties Dairies Co Ltd - [1902] 2 KB 1; [1900-03] All ER Rep 228; 71 LJKB 656; 87 LT 51; 66 JP 774; 14 Digest (Repl) 43, 115
Proudman v Dayman - (1941) 67 CLR 536; 14 Digest (Repl) 33, *24
R v Gould - [1968] 1 All ER 849; [1968] 2 QB 65; [1968] 2 WLR 643
R v Tolson - (1889) 23 QBD 168; [1886-90] All ER Rep 26; 58 LJMC 97; 60 LT 899; 54 JP 4, 20; 20, 15 Digest (Repl) 890, 8578
R v Wheat, R v Stocks - [1921] 2 KB 119; [1921] All ER Rep 602; 90 LJKB 583; 124 LT 830; 85 JP 203; 15 Digest (Repl) 891, 8591
Sherras v De Rutzen - [1895] 1 QB 918; [1895-99] All ER Rep 1167; 64 LJMC 218; 72 LT 839; 59 JP 440; 14 Digest (Repl) 39, 90
Thomas v Regem - (1937) 59 CLR 279
Warner v Metropolitan Police Comr - [1968] 2 All ER 356; [1968] 2 WLR 1303
Woolmington v Director of Public Prosecutions - [1935] AC 462; [1935] All ER Rep 1; 104 LJKB 433; 153 LT 232; 14 Digest (Repl) 493, 4768
Yeandel v Fisher - [1965] 3 All ER 158; [1966] 1 QB 440; [1965] 3 WLR 1002; 129 JP 546; Digest (Cont Vol B) 151, 57a
Judgment date: 23 January 1969
Judgment by:
Lord Reid
My Lords, the appellant was convicted at Woodstock Petty Sessions on 14 September 1967 on a charge that, on 16 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 s 5(b) of the Dangerous Drugs Act 1965. She was fined £25 and ordered to pay £12 18s 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 16 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 LSD. They also found in the kitchen cigarette ends containing cannabis resin and LSD. 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 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 guests. But this was held to be an absolute offence following the earlier decision in Yeandel v Fisher.
How has it come about that the Divisional Court 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 Comr . 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 show 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 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 A-G v Lockwood ((1842), 9 M & W 378 at p 398.) 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."
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 QB 918 at p 924, [1895-99] All ER Rep 1167 at p 1169.), 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 stigma. 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 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 v Director of Public Prosecutions 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 R v Tolson ((1889) 23 QBD 168 at p 181, [1886-90] All ER Rep 26 at p 34.). This appears to have been done in Australia where authority appears to support what Dixon J said in Proudman v Dayman ((1941) 67 CLR 536 at p 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 Divisional Court 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 the 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 s 5 of the Act of 1965. 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
- (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 para (b), and the first question is what is meant by "used for any such purpose". Is the "purpose" the purpose on the smoker or the purpose of the management? When in Warner's case. If dealt briefly with Yeandel's case I thought it was the purpose of the smoke, but fuller argument in the present case brought out that an identical provision occurs in s 8(d) which deals with opium. This latter provision 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 s 5 different from that which it has in the Act of 1920 and now has in s 8 of the Act of 1965. I think that in s 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 is absolute 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.