R v Heron
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Simon of Glaisdale,Lord Russell of Killowen,Lord Scarman,Lord Bridge of Harwich |
| Judgment Date | 25 March 1982 |
| Judgment citation (vLex) | [1982] UKHL J0325-2 |
| Date | 25 March 1982 |
| Court | House of Lords |
[1982] UKHL J0325-2
House of Lords
Lord Wilberforce
Lord Simon of Glaisdale
Lord Russell of Killowen
Lord Scarman
Lord Bridge of Harwich
My Lords,
I have had the privilege of reading in draft the speeches to be delivered by your Lordships. I agree with them and would dismiss the appeals.
My Lords,
The appellants were arraigned on an indictment of which the first count charged a conspiracy to "falsely make or counterfeit coins resembling current gold coins, namely half sovereigns." The subject-matter of the conspiracy charged is enacted in section 1(1)(a) of the Coinage Offences Act, 1936:
"(1) Every person who falsely makes or counterfeits any coin resembling any current coin shall be guilty of felony and on conviction thereof liable—
(a) in a case where the coin resembles a current gold or silver coin, to penal servitude for life or for any term not less than three years;"
The appellants pleaded not guilty. The Crown adduced evidence that the appellants intentionally produced coins resembling half sovereigns, which are admittedly "current coin" within the meaning of the Act. The Crown produced no evidence as to what the appellants intended to do with the coins. At the close of the case for the prosecution it was submitted on behalf of the appellants that, to establish an offence under section 1(1)(a) the Crown must prove a dishonest intention, an intent to pass the counterfeit coins as genuine, an intent to defraud—these being merely terminologically alternative ways of putting the mens rea alleged by the appellants to be required. The learned trial judge ruled against this submission, whereupon the appellants changed their pleas to guilty and were convicted. They appealed to the Court of Appeal (Criminal Division) on the point of law on which the ruling had gone against them. The Court of Appeal dismissed the appeal, certifying the following point of law as of general public importance:
"Whether or not the offence of counterfeiting under section 1(1)(a) of the Coinage Offences Act 1936 is an absolute offence which requires no element of dishonest intent."
but refused leave to appeal. Such leave was, however, in due course given by an Appeal Committee of your Lordships' House.
My Lords, it is common ground that the word "absolute" in the certified question is mistaken and should be deleted. There is no question of the offence under section 1(1)(a) being an offence of strict liability. The issue is whether it is, in the modem terminology, a crime of basic intent or a crime of specific intent. The distinction is illuminatingly made in the judgment of Fauteux J. in Reg. v. George (1960) 128 Can.C.C. 289, 301:
"In considering the question ofmens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act."
A crime which requires proof of the type of intention indicated (i) therein is a crime of specific intent; a crime which requires only the type of intention indicated (ii) therein is a crime of basic intent. It is contended on behalf of the appellants that section 1(1)(a) enacted a crime of specific intent—that it is incumbent on the Crown to show that the state of mind of the accused extended to a dishonest purpose.
Section 1 must, of course, be construed in the context of the whole Act. As to this I venture two preliminary observations.
First, for the impression which the statute as a whole makes on me, I cannot do better than quote the words of Collins J. inDickins v. Gill [1896] 2 QB 310 [1896] 2 Q.B. 310, 316, dealing with a comparable statute, the Post Office (Protection) Act, 1884:
"It is obvious that the purpose of the Act is in every way to make it illegitimate for persons to do that which by the policy of the law can only be done by, or with the authority of, the Crown; the section therefore deals with as many possible ways of interfering with the monopoly of the Crown as occurred to the draftsman of the Act."
And Stephen in hisHistory of the Criminal Law of England (Vol. III p. 179), writing of the provisions of the Coinage Offences Act, 1861:
"[They] are to the last degree explicit and minute. They are elaborated to the utmost in order to make it practically impossible to suggest any quibble or evasion by which their operation could be evaded. They comprehend not merely coining and uttering bad money, but making any sort of preparation for that operation, and even being in possession of the materials necessary for carrying it out."
So this is the type of Act where I should expect to find considerable overlapping of offences.
Secondly, the 1936 Act is a Consolidation Act. InFarrell v. Alexander [1977] AC 59, where your Lordships were concerned with a modem Consolidation Act, I ventured to describe the modern processes of consolidation, and to suggest that it was rarely necessary or permissible to interpret the Consolidation Act by scrutinising the provisions of the Acts which had been consolidated. But your Lordships are instantly concerned with consolidation before modern techniques were evolved: the "Gibson-Bowles doctrine" (that there must be verbatim reproduction of existing enactment "with all its blemishes and imperfections;" otherwise what purported to be consolidation might be changing the law: see Public Law, Autumn 19 [1975] P 292was still potent. Consolidation Acts of this period may therefore throw up ambiguities, tautologies, contradictions, redundancies and other problems which can only be resolved by considering the origin of the provisions in question. This is relevant to an argument advanced on behalf of the appellants founded on a comparison of sections 1 1 And 8f the 1936 Act.
With these considerations in mind, I turn to the nature of themens rea in various other provisions of the 1936 Act in order to see what light they throw on the intent required to be proved in section 1(1)(a). I deal with them summarily, without setting out in full all the provisions in question.
First, the statute enacts a number of crimes which are palpably of basic intent: sections 2(a)(i) (gilding, silvering, filing and altering), 4 (defacing coins), 6 (buying or selling etc. counterfeit coins for lower value than their denominations), 7 (importing and exporting counterfeit coins) and 8 (making, possessing and selling medals resembling gold or silver coins). It should, therefore, be a matter of no surprise if section 1(1)(a) also enacts a crime of basic intent.
Secondly, the Act also contains a number of crimes of specific intent; which are plainly indicated by the use of the words "with intent to": see sections 2(a)(ii), 2(a)(iii), 2(b), 3, 5( 3 And 5(4). Section 1(1)(a) lacks these significant words indicating specific intent.
Thirdly, and most striking of all, section 5(6) (uttering) expressly uses the precise words—"with intent to defraud"—which counsel for the appellant would have your Lordships understand in section 1(1)(a). He deftly sought to sidestep this difficulty by reference to Selby v. D.P.P. [1972] AC 515, where a majority of their Lordships discounted the significance of these words in interpreting section 5(3), holding this latter provision required proof of an intent to defraud notwithstanding the absence of those words in section 5(3) and their (consequently tautological) presence in section 5(6). But the basis of this decision was that "uttering" involved inherently a fraudulent intent (see p.538A–D): it was this that led to the discounting of the absence of the words "with intent to defraud" in section 5(3) notwithstanding their presence in section 5(6). As will appear, I can find nothing in section 1(1)(a) which would lead me similarly to discount the significance of "with intent to defraud" in section 5(6).
But counsel for the appellants had two further linked, arguments. First, although section 1(1)(a) did not expressly use the significant words "with intent to defraud", such an intent is implicit in both the words "falsely" and "counterfeit". Secondly, that this is so is borne out by a comparison with section 8, which enacts what is plainly a crime of basic intent, a misdemeanour carrying a maximum sentence of one year, as compared with the felony carrying a maximum sentence of penal servitude for life.
No doubt both "falsely" and "counterfeits" can import a connotation of fraud; but they do not necessarily do so. They can as readily bear the connotation merely of "spurious". I think that this is their meaning here: "falsely makes or counterfeits any coin …" having the same significance as the words "false or counterfeit coin" which recur throughout the Act or "the false making or counterfeiting of any … coin" in section 9(2)(b).
Section 8 enacts a misdemeanour if any person, without lawful authority or excuse, "makes [etc] any medal, cast, coin or other thing … resembling … any current gold or silver coin [etc]." The Court of Appeal dismissed its relevance to the construction of section 1: it was, they said, designed to deal with medals resembling coins. (It is, indeed, the only section which specifies medals.) But counsel for the appellants emphasized that it also dealt with coins themselves: in order to obviate redundancy, he argued, section 8 must establish a lesser crime of basic...
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