R v Shivpuri

Weekly Law Reports The Law Reports Cited authorities (28) Cited in (82) Precedent Map Related
JurisdictionUK Non-devolved
CourtHouse of Lords
Year1984
Date1984
[HOUSE OF LORDS] REGINA RESPONDENT AND SHIVPURI APPELLANT 1986 Feb. 4, 24; May 15 Lord Hailsham of St. Marylebone L.C., Lord Elwyn-Jones, Lord Scarman, Lord Bridge of Harwich and Lord MacKay of Clashfern

Crime - Attempt - Drugs importation, prohibition on - Belief in substance dealt with and harboured being heroin - Substance in fact not drug - Whether attempting to be knowingly concerned in dealing with or harbouring drug - Customs and Excise Management Act 1979 (c. 2), s. 170(1)(b) - Criminal Attempts Act 1981 (c. 47), s. 1 - Judicial PrecEdent - House of Lords decisions - Power to overrule previous decisions - Whether permissible notwithstanding especial need for certainty in criminal law

The appellant was tried on counts of attempting to be knowingly concerned in dealing with and harbouring a controlled drug, namely, heroin, the importation of which was prohibited, contrary to section 1(1) of the Criminal Attempts Act 1981F1 and section 170(1)(b) of the Customs and Excise Management Act 1979.F2 He was carrying a package containing a powdered substance and more such substance was found in his flat. Evidence for the prosecution was that at several police interviews he admitted having drugs and under caution he typed his own confession statement and stated that he very deeply suspected that the substance was heroin. Analysis proved it to be merely vegetable material akin to snuff. In evidence he denied making any admissions about drugs and denied that the typed statement amounted to a confession because from testing the substance he knew that it was not drugs. He was found guilty on both counts. He appealed against conviction on the ground that, because the substances found in his possession were not drugs, he could not be guilty of attempting to be concerned in either dealing with or harbouring a controlled drug as charged. The Court of Appeal (Criminal Division) dismissed the appeal.

On appeal:—

Held, dismissing the appeal, (1) that where a person was charged under section 170(1) of the Customs and Excise Management Act 1979 with being knowingly concerned in harbouring or dealing with goods the importation of which was prohibited, it was sufficient to prove that the person knew that the goods concerned were prohibited goods and that, irrespective of the different penalties attaching to offences in connection with the importation of different categories of prohibited goods, no proof was required that he knew the goods to be of a particular category; accordingly, it was immaterial that the appellant was unsure of the exact nature of the substance in his possession in that in any event he believed that he was dealing with controlled drugs the importation of which was prohibited (post, pp. 990D–E, 992F–G, 996D–H, 1002D–E).

Reg. v. Hussain [1969] 2 Q.B. 567, C.A. approved.

(2) That on the true construction of section 1 of the Criminal Attempts Act 1981 the actus reus of the statutory offence of attempt required an act which was more than merely preparatory to the commission of an offence and which the defendant did with the intention of committing an offence, notwithstanding that the commission of the actual offence was, on the true facts, impossible; and that applying the language of the section to the facts of the case the appellant had been rightly convicted of the offences as charged (post, pp. 990D–E, 992F–G, 998G–999A, 1002D–E).

(3) That the distinction which the House had previously sought to draw in regard to section 1 between acts which were “objectively innocent” and those which were not, could not be maintained and that case had therefore been wrongly decided and, on the basis that it was indistinguishable from the present appeal, would be departed from under the Practice Statement (post, pp. 1000E–F, 1001G–H).

Anderton v. Ryan [1985] A.C. 560, H.L.(E.) overruled.

Practice Statement (Judicial PrecEdent) [1966] 1 W.L.R. 1234, H.L.(E.) applied.

Per Lord Hailsham of St. Marylebone L.C., Lord Elwyn-Jones and Lord MacKay of Clashfern. Even if the Practice Statement had not been applied to Anderton v. Ryan the appeal would still have been dismissed by distinguishing its facts from that case, on the basis that the appellant was guilty on the clear wording of section 1(1) and (2) of the Act of 1981 and that no recourse was therefore necessary to the wording of section 1(3) which if so would be irrelevant (post, pp. 991D–E, 992E, 1002E).

Decision of the Court of Appeal (Criminal Division) [1985] Q.B. 1029; [1985] 2 W.L.R. 29; [1985] 1 All E.R. 143 affirmed.

The following cases are referred to in their Lordships opinions:

Anderton v. Ryan [1985] A.C. 560; [1985] 2 W.L.R. 968; [1985] 2 All E.R. 55, H.L.(E.)

Practice Statement (Judicial PrecEdent) [1966] 1 W.L.R. 1234; [1966] 3 All E.R. 77, H.L.(E.)

Reg. v. Courtie [1984] A.C. 463; [1984] 2 W.L.R. 330; [1984] 1 All E.R. 740, H.L.(E.)

Reg. v. Hennessey (Timothy) (1978) 68 Cr.App.R. 419, C.A.

Reg. v. Hussain [1969] 2 Q.B. 567; [1969] 3 W.L.R. 134; [1969] 2 All E.R. 1117, C.A.

Reg. v. Hyam [1975] A.C. 55; [1974] 2 W.L.R. 607; [1974] 2 All E.R. 41, H.L.(E.)

Reg. v. Smith (Roger) [1975] A.C. 476; [1974] 2 W.L.R. 1; [1973] 3 All E.R. 1109, H.L.(E.)

The following additional cases were cited in argument:

Cookson v. Knowles [1979] A.C. 556; [1978] 2 W.L.R. 978; [1978] 2 All E.R. 604; [1978] 2 Lloyd's Rep. 315, H.L.(E.)

Fitzleet Estates Ltd. v. Cherry [1977] 1 W.L.R. 1345; [1977] 3 All E.R. 996, H.L.(E.)

People v. Jaffe (1906) 185 N.Y. 497

President of India v. La Pintada Compania Navigacion S.A. [1985] A.C. 104; [1984] 3 W.L.R. 10; [1984] 2 All E.R. 773; [1984] 2 Lloyd's Rep. 9, H.L.(E.)

Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74; [1983] 2 W.L.R. 321; [1983] 1 All E.R. 765, H.L.(E.)

Reg. v. Taaffe [1984] A.C. 539; [1984] 2 W.L.R. 326; [1984] 1 All E.R. 747, H.L.(E.)

Rex v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, C.C.A.

Westminster City Council v. Croyalgrange Ltd. [1985] 1 All E.R. 740, D.C.

APPEAL from the Court of Appeal (Criminal Division).

This was an appeal by the appellant, Pyare Shivpuri, by leave of the Court of Appeal (Criminal Division) (Ackner L.J., Stuart-Smith and Leggatt JJ.) [1985] Q.B. 1029 from their judgment dismissing his appeal against conviction at the Crown Court at Reading on 13 February 1984 before Judge Pigot Q.C. and a Jury on one count of attempting to be knowingly concerned in dealing with a controlled drug the importation of which was prohibited under section 3(1) of the Misuse of Drugs Act 1971, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 170 of the Customs and Excise Management Act 1979 and a second count of attempting to harbour a similar controlled drug. The Court of Appeal certified that the following point of law of general public importance was involved in their decision, namely,

“Does a person commit an offence under section 1 of the Criminal Attempts Act 1981 where, if the facts were as that person believed them to be, the full offence would have been committed by him, but where on the true facts the offence which that person set out to commit was in law impossible, e.g., because the substance imported and believed to be heroin was not heroin but a harmless substance?”

The facts are set out in the opinion of Lord Bridge of Harwich.

Their Lordships took time for consideration.

David Christie for the appellant.

Alan Suckling QC and Tony Docking for the Crown.

15 May. LORD HAILSHAM OF ST. MARYLEBONE L.C. My Lords, I have had the advantage of reading in draft the speech about to be delivered (and now available in print) by my noble and learned friend, Lord Bridge of Harwich Save for one relatively minor point I agree with it in its entirety and would dispose of this appeal as he proposes and for the reasons which he gives. I add a few remarks of my own for reasons which will appear.

The first comment I make is that I believe that this is the first time that the Practice Statement (Judicial PrecEdent) [1966] 1 W.L.R. 1234 has been applied to a decision as recent as that in Anderton v. Ryan [1985] A.C. 560. Ordinarily I might have been loth to take so bold a step, even though I may have entertained privately the thought that such a case so recently and so carefully considered and supported by two such powerfully reasoned judgments was nevertheless seriously open to question. Quite clearly a departure from recent decisions by means of the Practice Statement has dangers of its own which are too obvious to need elaboration. But there is obviously much to be said for the view about to be expressed by my noble and learned friend that “if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.” This consideration must be of all the greater force when the error is, as in the present case, to be corrected by a palinode composed by one of the original authors of the majority judgment. I also agree with my noble and learned friend that in the very nature of the present case it would seem impossible that anyone could have acted to his detriment in reliance on the law as stated in the decision departed from. Thirdly, as one of the authors of the decision in Reg. v. Smith (Roger) [1975] A.C. 476 I must say that I had hoped that my opinion in that case would be read by Parliament as a cri de coeur, at least on my part, that Parliament should use its legislative power to rescue the law of criminal attempts from the subtleties and absurdities to which I felt that, on existing premises, it was doomed to reduce itself, and, after long discussions with the late Lord Reid, I had reached the conclusion that the key to the anomalies aRose from the various kinds of circumstance to which the word “attempt” can be legitimately applied, and that the road to freedom lay in making an inchoate crime of this nature depend on a prohibited act (the so called, but ineptly called, “actus reus”) amounting to something more...

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