Sweet v Parsley
[1969] 1 All ER 347(Judgment by: Lord Morris of Borth-Y-Gest)
Between: Sweet
And: Parsley
Judges:
Lord Reid
Lord Morris of Borth-Y-GestLord 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 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. If 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 QB 918 at p 921, [1895-99] All ER Rep 1167 at p 1169.) and in Derbyshire v Houliston . In the judgment of the Privy Council in Lim Chin Aik v Reginam , the principle was amply expressed. It was said ([1963] 1 All ER at p 227, [1963] AC at p 172.):
"That proof of the existence of a guilty intent is an essential ingredient of a crime at common law is not at all in doubt."
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. Ther may be cases in which, as Channell J said in Pearks, Gunston & Tee Ltd v Ward, Hennen v Southern Counties Dairies Co Ltd ([1902] 2 KB 1 at p 11, [1900-03] All ER Rep 228 at p 232.):
"... 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 v Metropolitan Police Comr ([1968] 2 All ER 356 at p 379, [1968] 2 WLR 1303 at p 1332.)) the words of Lord Goddard CJ in Brend v Wood ((1946) 175 LT 306 at p 307.), when he said:
"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 constitutent 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 A-G v Lockwood ((1842) 9 M & W 378 at p 398.) Alderson B 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 ((1872), LR 4 PC 184 at p 191.) it was said:
"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 cause 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 commonsense 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 enquiry 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 can be laid down as a guide in finding the fair, reasonable and common-sence 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 difference 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 incorrectly, 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 s 5 of the Dangerous Drugs Act 1965, is as follows:
"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 s 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 s 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 s 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 managements 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 stair-cases 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 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 any such purpose ... " 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 café. 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 any premises used for any such purpose" 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 to be concerned in the management of premises used for purpose of dancing, he could be someone concerned only in the management 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 implications are astonishing. Parliament would not only be indirectly imposing a duty on 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 Parliament 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 measure of supervision. 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.
For the reasons that I have indicated, I consder that, on a fair reading of the phrase "concerned in the management of any premises used for any such purpose", 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 s 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.