Sweet v Parsley
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Wilberforce,Lord Diplock |
| Judgment Date | 23 January 1969 |
| Judgment citation (vLex) | [1969] UKHL J0123-1 |
| Court | House of Lords |
| Date | 23 January 1969 |
Lord Reid
Lord Morris of Borth-y-Guest
Lord Pearce
Lord Wilberforce
Lord Diplock
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Sweet (A.P.) against Parsley (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Wednesday the 27th and Thursday the 28th, days of November last, as on Monday the 2d, Tuesday the 3d and Wednesday the 4th, days of December last, upon the Petition and Appeal of Stephanie Lavinia Sweet (Assisted Person), of Calle Del Centro 7, Barcelona 13, Spain, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 22d of March 1968, 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 Edmund Raymond Parsley, 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 a Divisional Court of the Queen's Bench Division of the High Court of Justice, of the 22d day of March 1968, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Conviction imposed by C. Morris, Esquire and Felicity Livingstone two of Her Majesty's Justices of the Peace for the County of Oxford acting in and for the Petty Sessional Division of Woodstock, on the 14th day of September 1967, be, and the same is hereby, Quashed: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Courts below, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to a Divisional Court of the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant was convicted at Woodstock Petty Sessions on 14th September 1967 on a charge that on the 16th June 1967 she was concerned in the management of certain premises at Fries Farm, Oxfordshire, which were used for the purpose of smoking cannabis contrary to section 5( b) of the Dangerous Drugs Act 1965. She was fined £25 and ordered to pay £12 18s. 0d. costs. It appears from the Case Stated by the Justices that the tenant of this farm had sublet the farmhouse to her at a rent of £28 per four weeks. She was a teacher at a school in Oxford and she had intended to reside in this house and travel daily by car to Oxford. This proved to be impracticable so she resided in Oxford and let rooms in the house at low rents to tenants allowing them the common use of the kitchen. She retained one room for her own use and visited the farm occasionally to collect her letters, to collect rent from her tenants and generally to see that all was well. Sometimes she stayed overnight but generally she did not.
On 16th June, while she was in Oxford, the police went to the premises with a search warrant. They found receptacles hidden in the garden which contained cannabis resin and L.S.D. They also found in the kitchen cigarette ends containing cannabis, and an ornamental hookah pipe which belonged to the Appellant and which had, admittedly without her knowledge, been used for smoking this substance.
The Justices found that "she did not enter the rooms of tenants except by invitation and she had no reason to go into their rooms. Her own room was occasionally used in her absence by other persons who lived in the house. She had no knowledge whatever that the house was being used for the purpose of smoking cannabis or cannabis resin. Once or twice when staying overnight at the farmhouse the Appellant shouted if there was excessive noise late at night but otherwise she did not exercise any control over the tenants except that she collected rent from them".
A Divisional Court dismissed her appeal, holding that she had been concerned in the management of those premises. The reasons given for holding that she was managing the property were that she was in a position to choose her tenants: that she could put them under as long or as short a tenancy as she desired: and that she could make it a term of any letting that smoking of cannabis was not to take place. All these reasons would apply to every occupier who lets out parts of his house or takes in lodgers or paying quests. But this was held to be an absolute offence following the earlier decision in Yeandel v. Fisher [1966] 1 Q.B. 440.
How has it come about that the Court of Appeal has felt bound to reach such an obviously unjust result? It has in effect held that it was carrying out the will of Parliament because Parliament has chosen to make this an absolute offence. And of course if Parliament has so chosen the Courts must carry out its will, and they cannot be blamed for any unjust consequences. But has Parliament so chosen?
I dealt with this matter at some length in Warner v. Metropolitan Police Commissioner [1968] 2 All E.R. 356. On reconsideration I see no reason to alter anything which I there said. But I think that some amplification is necessary. Our first duty is to consider the words of the Act: if they shew a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.
Where it is contended that an absolute offence has been created, the words of Alderson B. in Attorney-General v. Lockwood 9 R.W. 378 have often been quoted:
"The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain literal and grammatical meaning of the words in which they are expressed unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity." (page 398)
That is perfectly right as a general rule and where there is no legal presumption. But what about the multitude of criminal enactments where the words of the Act simply make it an offence to do certain things but where everyone agrees that there cannot be a conviction without proof of mens rea in some form? This passage, if applied to the present problem, would mean that there is no need to prove mens rea unless it would be "a plain and clear contradiction of the apparent purpose of the Act" to convict without proof of mens rea. But that would be putting the presumption the wrong way round: for 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 that 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", is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. 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.
What, then, are the circumstances which it is proper to take into account? In the well known case of Sherras v. de Rutzen [1895] 1 Q.B. 918 Wright J. only mentioned the subject matter with which the Act deals. But he was there dealing with something which was one of a class of acts which "are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty". It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal...
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