Sweet v Parsley
[1969] 1 All ER 347(Judgment by: Lord Diplock)
Between: Sweet
And: Parsley
Judges:
Lord Reid
Lord 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 Diplock
My Lords, on premises of which the appellant 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 s 5 of the Dangerous Drugs Act 1965. She was not charged under para (a) as an occupier of premises who "permits those premises to be used for the purpose of smoking cannabis" but under para (b) as a person "concerned in the management of ... permises used for any such purpose". She was convicted and fined £25. That conviction was upheld by the Divisional Court who gave leave to appeal to your Lordships' House and certified that the following points of law of general public importance were involved in their decision, viz:
- "(i)
- Whether section 5(b) of the Dangerous Drugs Act 1965 creates an absolute offence
- (ii)
- What, if any, mental element is involved in the offence; and (since leave to Appeal is given in regard to (i) and (ii) above)
- (iii)
- Whether on the facts found a reasonable bench of Magistrates, properly directing their minds as to the law, could have convicted the Appellant."
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 QB 918 at p 921, [1895-99] All ER Rep 1167 at p 1169.) as "evil intention, or a 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 Stephen J in R v Tolson ((1889) 23 QBD 168 at p 187, [1886-90] All ER Rep 26 at p 37.):
"The full definition of every crime 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 defined 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 an 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 ((1889) 23 QBD at p 187, [1886-90] All ER Rep at p 37.), may be stated explicitly by the use of such qualifying adverbs as "maliciously", "fraudulently", "negligently" or "knowingly"-expressions which in relation 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 connotes some degree of awareness of that which was within the possessor's physical control ( Warner v Metropolitan Police Comr).
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 M'Naghten'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 M'Naghten rules; yet this part of the full definition of the offence is invariably left unexpressed by Parliament. Stephen J in R v Tolson ((1889) 23 QBD 168 at p 187, [1886-90] All ER Rep 26 at p 37.) 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 s 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 nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief held honestly and on reasonable grounds in the existence of facts which, if true, would make the act innocent. As was said by the Privy Council in Bank of New South Wales v Piper ([1897] AC 383 at pp 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 conduct 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 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 on 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 Lim Chin Aik v Reginam ([1963] 1 All ER 223 at p 228, [1963] AC 160 at p 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 CLR 100 at p 104.), and by the majority of the High Court of Australia in Thomas v Regem. 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 R v Tolson has been overlooked until recently (see R v Gould ) partly because the ratio decidendi was misunderstood by the Court of Criminal Appeal in R v Wheat , R v Stocks , 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 Director of Public Prosecutions . 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.
Woolmington's case affirmed the principle that the onus lies on 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 by 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 on 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 Proudman v Dayman ((1941), 67 CLR 536 at p 541.). Unlike the position where a statute expressly places the onus of proving lack of gulty 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 s 5 of the Dangerous Drugs Act 1965, under which the appellant was charged. It contains separate prohibitions in para (a) and para (b), respectively. The offence under para (a), with which the appellant 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 recorse 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 para (b), the phrase "concerned in the management of any premises", unlike the phrase "being the occupier of any premises" in para (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 any 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 (eg, "premises on which cannabis is smoked") but by the purpose for which they are used. "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 the appellant, 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 the appellant "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.
Appeal allowed.