Selby v Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division))
| Jurisdiction | England & Wales |
| Judge | Lord Guest,Lord Parker of Waddington,Lord Wilberforce,Guest Lord Simon of Glaisdale,Lord Cross of Chelsea,Guest Lord Cross of Chelsa,Lord Simon of Glaisdale |
| Judgment Date | 21 October 1971 |
| Judgment citation (vLex) | [1971] UKHL J1021-2 |
| Date | 21 October 1971 |
| Court | House of Lords |
[1971] UKHL J1021-2
House of Lords
Lord Guest
Lord Parker of Waddington
Lord Wilberforce
Lord Simon of Glaisdale
Lord Cross of Chelsa
Upon Report from the Appellate Committee, to whom was referred the Cause Selby against Director of Public Prosecutions (on Appeal from the Court of Appeal Prosecutions (Criminal Division)), that the Committee had heard Counsel, as well on Tuesday the 27th as on Wednesday the 28th days of July last, upon the Petition and Appeal of Arthur John Selby of 17 Pevensey House, Ben Johnson Road, E.1, in the County of London, at present detained in Her Majesty's Prison at Wandsworth in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 2d of April 1971, might be reviewed before Her Majesty the Queen, in her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 2d day of April 1971, complained of in the said Appeal, be, and the same is hereby Reversed, and that the Conviction imposed by M. Buttrose, Esq., Deputy Chairman of the Inner London Quarter Sessions, on the 10th day of September 1970, be, and the same is hereby, Quashed.
My Lords,
The Appellant was convicted at the Inner London Sessions in September, 1970, of an offence under section 5 (3) of the Coinage Offences Act. 1936. The charge was that he had in his possession 45 false or counterfeit coins resembling current gold coin, knowing the same to be false or counterfeit, and with intent to utter or put off the said coins or any of them. He was sentenced by the Deputy Chairman to two years' imprisonment. His appeal to court of Appeal, Criminal Division, was dismissed on 1st April, 1971. The Court gave a certificate that a point of law of general public importance was involved, namely, what is the meaning of "intent to utter" within section 5 (3) of the Coinage Offences Act, 1936, and gave leave to appeal to this House.
At the trial there was no dispute that the Appellant was in possession of the 45 coins, that those coins were false or counterfeit resembling current gold coin and that the Appellant knew that they were false or counterfeit. But the Appellant's counsel submitted that there was no evidence of intent to utter or put off the coins and that there was accordingly no case to answer. The Deputy Chairman overruled the submission and the Appellant was convicted. The only evidence as to the Appellant's intent depended on his statement to the police officer who arrested him. When asked what he did with the coins, his statement amounted to this. That he dealt in these coins for his living. He denied having uttered them with intent to deceive. "I always say they are imitations". The Deputy Chairman held that this was no defence to the charge and directed the jury to that effect.
The Court of Appeal, Criminal Division, approved of the Deputy Chairman's direction to the jury. The Court held that in order to prove an intent to utter it was not necessary to establish that the Appellant intended to pass off the counterfeit coins as genuine currency and that it was sufficient proof of intent to utter that he intended to part with the coins for any purpose and in any circumstances.
The Coinage Act, 1936, contains a number of provisions. Section 1 makes it an offence to falsely make or counterfeit any coin resembling any current coin. Section 2 deals with the impairment of gold or silver coins. Section 4 (1) makes it an offence to deface any current coins. Subsection (2) provides as follows:
"(2) A tender of payment in money made in any coin which has been defaced as aforesaid shall not be legal tender."
Subsection (3) provides that any person who tenders, utters or puts off any defaced coin shall be guilty of an offence. Section 5 (1) is in the following terms:
"(1) Every person who tenders, utters or puts off any false or counterfeit coin resembling any current coin knowing it to be false or counterfeit, shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for a term not exceeding one year."
Subsection (3) provides:
"(3) Every person who has in his possession three or more false or counterfeit coins resembling any current gold or silver coin, knowing them to be false or counterfeit and with intent to utter or put off the said coins or any of them, shall be guilty of a misdemeanour and on conviction thereof liable to penal servitude for a term not exceeding five years or less than three years."
Subsection (4) provides for a similar offence in relation to copper coins. Subsection (6) provides as follows:
"(6) Every person who, with intent to defraud, tenders, utters or puts off as or for any current gold or silver coin—
( a) any coin not being that current coin and being of less value than that current coin; or
( b) any medal or piece of metal or mixed metals resembling in size, figure and colour that current coin and being of less value than that current coin;
shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for a term not exceeding one year."
Subsection (7) is in the following terms:
"(7) The offence of tendering, uttering or putting off a false or counterfeit coin shall be deemed to be complete although the coin is not in a fit state to be uttered or the counterfeiting thereof has not been finished or perfected."
The first question to which I must address myself is what in the context of section 5 (3) is the meaning of "intent to utter". Does it require that there shall be an intention to pass the counterfeit coin as current coin of the realm or is it sufficient that there shall be an intention to part with the coin in any circumstances? The first meaning involves an element of deceit or fraud. The elementary point which must strike the construer is that the contrast is between a person who merely has the coins in his possession and a person who not only has the coins in his possession but also intends to part with them in some way or other. The first is not criminal, the second may be, depending on the meaning of "intent to utter". The next question is, what is the meaning of the words "tenders, utters or puts off" in section 5 (1). The words "utters or puts off" must have the same meaning in subsection (3) which relates to possession. The meaning of "tenders" is fairly clear. It must mean "offers in payment". This is made plain by section 4 (2) which speaks of "a tender of payment in money made in any coin which has been defaced" not being legal tender. What about "utters or puts off"? They cannot have the same meaning as "tenders" which has already been provided for. In its natural meaning "utters" comprises the issuing out of the control of the possessor, such as "publishing a libel". "Puts off" might suggest the parting of possession possibly with the added concept of deception. But the expression "puts off as or for any current gold or silver coin" which occurs in section 5 (6) is coupled with an intent to defraud suggesting that in subsection (1) intent to defraud is not necessary. "Uttering",—in my view, in the context means parting with possession with no element of deceit.
The Appellant's construction of "uttering" must involve an element of deceit or fraud in passing off the coin as current coin of the realm. This element of fraud is requisite for an offence under section 5(6)—"Every person who with intent to defraud…". I see no necessity for importing into subsection (3) an intent to defraud which is not present in the statute and I decline to read those words into the section. To do so would involve the tautologous expression in section 5(6) "Every person who, with intent to defraud tenders, utters or puts off"—in my view an impossible construction. There is no special reason why "intent to defraud" should be mentioned in subsection (6).
It appears to me that the Appellant's construction of section 5 in regard to the meaning of "uttering" would ignore the mischief at which the Coinage Offences Act, 1936, is aimed. It is the manufacture and circulation of coins resembling current coin with the consequent damage to the currency of the realm. As a matter of pure construction I have no doubt as to the meaning of "utter" in section 5. It must mean put into circulation for any purpose and in any circumstances.
I now ask the question—Is there anything in the coinage legislation or in the authorities which would lead to a different conclusion? The history of the legislation goes back to the Statute of Treason, 1352, (25 Ed. III c.2) whereby counterfeiting the King's seals or money or importing counterfeit money into the realm was made a treasonable offence punishable with death. There followed a number of statutes dealing with foreign coins, namely, 1 Mary c.6 (1553), 1 & 2 Phil. Mary c.11 (1554), 14 Eliz. c.3 (1570) which require an element of falsity or fraud relative to the offence. Counterfeiting was still a treasonable offence by 8 & 9 Geo. III c.26.
There is no doubt that prior to 1742 uttering counterfeit coins was not a statutory offence. It was treated as cheating at Common Law (see East's Pleas of the Crown I p. 178; Russell on Crimes vol. 2 p. 1508). The precedents of indictments over...
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