Sweet v Parsley
[1969] 1 All ER 347(Judgment by: Lord Pearce)
Between: Sweet
And: Parsley
Judges:
Lord Reid
Lord Morris of Borth-Y-Gest
Lord PearceLord 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 Pearce
My Lords, the respondent contends 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, he argues, a practical Act intended to prevent a practical evil. Only by convicting some innocents along with the guilty can sufficient pressure be put on 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 respondent'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 housemaster and matron of a boarding school, all these, it is conceded, are on the respondent'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 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, since 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 posibility 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 respondent contends, 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 knowledge 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 common sense. If a judge on a drug case, feeling disheartened, perhaps, after a close study of Warner v Metropolitan Police Comr , 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. I see no difficulty in it apart from the opinion of Lord Sankey LC in Woolmington v Director of Public Prosecutions . 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, counsel for the appellants 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 ((1889) 23 QBD at p 181, [1986-90] All ER Rep at p 34.), and Wills J ((1889) 23 QBD at p 175, [1886-90] All ER Rep at pp 30, 31.), in R v Tolson , have evolved a defence of reasonable mistake of fact and the burden of proving this on a balance of probabilities rests on the defendant. The whole matter is discussed in an interesting article by Professor Howard in the Law Quarterly Review (vol 76, p 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. ( Maher v. Musson , per Dixon, J. ((1934) 52 CLR at p 105.), and per Evatt and McTiernan, JJ. ((1934) 52 CLR at p 108.), cf. Sherras v. De Rutzen ([1895] 1 QB 918 at p 921, [1895-99] All ER Rep 1167 at p 1169.), per Day, J.)."
That decision was before Woolmington's case. In Thomas v Regem , the matter was further discussed, but I see no reference to Woolmington's case. I should be happy to be persuaded 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 purpose of the present case to go fully into that aspect of the matter.
Although s 5(b) of the Dangerous Drugs Act 1965 cannot constitute an absolute offence in the wide application for which the respondent contends, 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, eg the word "possession" as in Warner's case. In saying that the section relating to possession (which was there under discussion) 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 agreement.
The history of s 5(b) and the words themselves lend strong support to the view that a narrow meaning was intended. In the Dangerous Drugs Act 1920, s 5(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 5 of the Act of 1920 was in fact re-enacted in s 8 of the Act of 1965 now under consideration. The words thus from the Act of 1920 cannot have a different sense when used in the Act of 1965, especially when they are re-enacted in another part of the Act of 1965 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 respondent points 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 preparation. 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 s 5 of the Act of 1920 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 s 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 the appellant had no knowledge.
I appreciate that this limitation will, as the respondent contends, rob s 5(b) of the Act of 1965 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.