Harrow London Borough Council v Shah
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE MITCHELL |
| Judgment Date | 19 April 1999 |
| Judgment citation (vLex) | [1999] EWHC J0419-4 |
| Docket Number | CO/4775/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 April 1999 |
[1999] EWHC J0419-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Lord Justice Kennedy
(Vice President of the Queen's Bench Division) and
Mr Justice Mitchell
CO/4775/98
MR M BATCHELOR (instructed by Messrs Shah and Burke, London, NW10) appeared on behalf of the Appellant.
MR M DULOVIC (instructed by the London Borough of Brent and Harrow, London, NW2) appeared on behalf of the Respondent.
Monday 19th April 1999
Mitchell J will give the first judgment.
This is a prosecutor's appeal by way of case stated against a decision of the Harrow Justices on 30th September 1998 dismissing informations laid against the respondents, Dilip Shah and Bharti Shah, alleging a contravention of section 13 of the National Lottery Act 1993 and regulation 3 of the National Lottery Regulations 1994. Regulation 3 provides:
"No National Lottery ticket shall be sold by or to a person who has not attained the age of 16 years."
Section 12(1) of the Act provides:
"The Secretary of State may by regulations make such provisions in relation to the promotion of lotteries that form part of the National Lottery as he considers necessary or expedient.
(2) Such regulations may in particular impose requirements or restrictions as to—
(a) the minimum age of persons to whom or by whom tickets or chances may be sold."
Section 13(1):
"If any requirement or restriction imposed by regulations made under section 12 is contravened in relation to the promotion of a lottery that forms part of the National Lottery—
(a) the promoter of the lottery shall be of guilty of an offence, except if the contravention occurred without the consent or connivance of the promoter and the promoter exercised all due diligence to prevent such a contravention,
(b) any director, manager, secretary or other similar officer of the promoter, or any person purporting to act in such a capacity, shall be guilty of an offence if he has consented to or connived at the contravention or if the contravention was attributable to any neglect on his part, and
(c) any other person who was a party to the contravention shall be guilty of an offence."
Section 13(2):
"A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment not exceeding two years, to a fine or to both."
Section 13 has two important features. First, whereas in subsection (1) paragraphs (a) and (b) the liability of the promoter and the promoter's, directors, managers and the like is tempered by the provision of a statutory defence, in subsection (1)(c) the liability of 'any other person' who was a party to the contravention of the regulation is not expressed to be subject to a statutory defence. Second, although the maximum sentence for conviction on indictment is two years, a fine, or both, those penalties apply to all persons who are guilty of any offence under the section including the promoter. The maximum of two years cannot therefore be said to be tailormade for a contravention of regulation 3 by a shopkeeper.
The facts were found by the Justices as follows.
The respondents were proprietors of Woods Newsagents at Uxbridge Road, Harrow. They employed a Mr Hobday. On
25th April 1998, during the course of his employment, Mr Hobday sold a national lottery ticket to a young boy who was thirteen-and-a-half. At the time of the making of the sale Mr Hobday reasonably, but mistakenly, believed that the boy was at least sixteen years old. At the time of the sale the respondent, Dilip Shah, was not in the shop, but was working in the back room and the respondent, Bharti Shah, was not on the premises. Neither respondent was therefore aware of the transaction. Mr Hobday was aware of the obligation not to sell lottery tickets to under age purchasers. He understood that if he was in any doubt about the age of the purchaser he should ask for proof of identity and that if still in doubt he should then refer the matter to the respondents or refuse to sell. In addition to mandatory public signs, concerning the sale of lottery tickets to under 16s, the respondents had other handwritten signs on the counter, on the till and the lottery terminal reminding staff not to sell to under 16s and they regularly reminded the staff orally of their obligation.
The question set out in paragraph 8 of the Case is this:
"whether an offence contrary to Regulation 3 of the National Lottery Regulations 1994 and Section 13 of the National Lottery Act 1993 requires the prosecution to prove that the defendant or his agent was aware of the buyer's age, or was reckless as to his age."
Put another way, do these provisions create an offence of strict (or absolute) liability? If they do, then plainly, in order to prove a contravention of regulation 3, all that is required of the prosecution is proof of the sale of a national lottery ticket to a particular person and proof that at the time of the sale that person was under 16. Clearly, before any question of criminal liability attaching to the respondents can arise, the contravention must be proved as against their employee, Mr Hobday who, as the Justices found, reasonably, but mistakenly, believed that the purchaser of the ticket was at least 16.
Determining whether Parliament has created an offence of strict liability involves rather more than applying a particular test, or working through a list of clearly and closely defined criteria. There are various aspects to the exercise. The starting point in each case is always the same—namely, there is a presumption that included in the ingredients of the offence under consideration is the element of mens rea. This was emphasised as long ago as 1970 in the case of
Sweet v. Parsley [1970] AC 132 . At page 149 Lord Reid said this:
"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 it 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', it is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute defence. 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."
At page 163 Lord Diplock explained the rationale of the presumption. Some ten years later in the case of
Sheppard & Ors (1981) 72 Cr.App.R. 82 at p. 90 Lord Diplock returned to the subject. He said this:
"The climate of both parliamentary and judicial opinion has been growing less favourable to the recognition of absolute offences over the last few decades; a trend to which section 1 of the Homicide Act 1957 and section 8 of the Criminal Justice Act 1967 bear witness in the case of Parliament, and in the case of the Judiciary, is illustrated by the speeches of this House in Sweet v. Parsley [1970] AC 132."
In 1984 in the Privy Council case of Gammon Limited v. Attorney General of Hong Kong [1985] 1 AC 10, having reviewed the speeches in Sweet v. Parsley and
Lim Chin Aik v. The Queen [1963] AC 160 in which the Privy Council considered Wright J's formulation of the principle in Sherras v. De Rutzen [1895] 1 QB 918, Lord Scarman identified the issue in the appeal as being "whether the offences charged were offences of strict liability or required proof of mens rea as to their essential facts". At page 14 Lord Scarman summarised in five propositions the law relevant to that...
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