Warner v Metropolitan Police Commissioner; R v Warner

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid, Lord Morris of Borth-y-Gest, Lord Guest, Lord Pearce, Lord Wilberforce
Judgment Date02 May 1968

[1968] UKHL J0502-2

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Guest

Lord Pearce

Lord Wilberforce

Warner
and
Commissioner of Police for the Metropolis

Upon Report from the Appellate Committee, to whom was referred the Cause Warner against Commissioner of Police for the Metropolis (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Tuesday the 13th, as on Wednesday the 14th, Thursday the 15th, Monday the 19th and Tuesday the 20th, days of February last, upon the Petition and Appeal of Reginald Charles Warner, at present detained at Her Majesty's Prison Eastchurch, Sheerness, Kent, 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 19th of October 1967, 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 Commissioner of Police for the Metropolis, 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 19th day of October 1967, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Reid

My Lords,

1

The Appellant was tried at Inner London Quarter Sessions on 3rd February 1967 on a charge that on 18th November 1966 he had in his possession a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 namely 20,000 tablets containing amphetamine sulphate. When stopped by the police he had in his car inter alia two packages. His defence was that he believed that both packages contained scent. In fact when they were opened in his presence one was found to contain scent and the other to contain these tablets. I shall not deal further with the facts at this point. His defence may not have been credible: it may be that no reasonable jury would have believed it. But the learned chairman directed the jury that this was no defence. He said that those tablets were under the control of the Appellant: that "possession" meant that he had control; and the statute says you must not have such drugs in your possession in any circumstances whatever—there is absolute prohibition in law unless you have lawful authority. The jury returned a verdict of guilty after three minutes and the Appellant was sentenced to two years' imprisonment. The Court of Appeal dismissed his appeal on authority of Lockyer v. Gibb [1966] 3 W.L.R. 84 holding that this was an absolute offence for which mens rea was not necessary.

2

I understand that this is the first case in which this House has had to consider whether a statutory offence is an absolute offence in the sense that the belief, intention, or state of mind of the accused is immaterial and irrelevant. It appears from the authorities that the law on this matter is in some confusion, there being at least two schools of thought. So I think it necessary to begin by making some observations of a general character.

3

There is no doubt that for centuries mens rea has been an essential element in every common law crime or offence. Equally there is no doubt that Parliament, being sovereign, can create absolute offences if so minded. But we were referred to no instance where Parliament in giving statutory form to an old common law crime has or has been held to have excluded the necessity to prove mens rea. There are a number of statutes going back for over a century where Parliament in creating a new offence has transferred the onus of proof so that, once the facts necessary to constitute the crime have been proved, the accused will be held to be guilty unless he can prove that he had no mens rea. But we were not referred to any except quite recent cases in which it was held that it was no defence to a charge of a serious and truly criminal statutory offence to prove absence of mens rea.

4

On the other hand there is a long line of cases in which it has been held with regard to less serious offences that absence of mens rea was no defence. Typical examples are offences under Public Health, Licensing and Industrial legislation. If a person sets up as say a butcher, a publican, or a manufacturer and exposes unsound meat for sale, or sells drink to a drunk man or certain parts of his factory are unsafe, it is no defence that he could not by the exercise of reasonable care have known or discovered that the meat was unsound, or that the man was drunk or that his premises were unsafe. He must take the risk and when it is found that the statutory prohibition or requirement has been infringed he must pay the penalty. This may well seem unjust but it is a comparatively minor injustice, and there is good reason for it as affording some protection to his customers or servants or to the public at large. Although this man might be able to show that he did his best, a more skilful or diligent man in his position might have done better, and when we are dealing with minor penalties which do not involve the disgrace of criminality it may be in the public interest to have a hard and fast rule. Strictly speaking there ought perhaps to be a defence that the defect was truly latent so that no one could have discovered it. But the law has not developed in that way, and one can see the difficulty if such a defence were allowed in a summary prosecution. These are only quasi-criminal offences and it does not really offend the ordinary man's sense of justice that moral guilt is not of the essence of the offence.

5

Reg. v. Woodrow (1846) 15 M. & W. 400 was an early case. A statute provided that "every … retailer of tobacco who shall receive or take into or have in his possession" any adulterated tobacco shall forfeit £200. The accused had 54 pounds of tobacco in his possession which had been adulterated by the manufacturer, but he did not know that. He had bought it as genuine tobacco believing it to be such and he had no reason to suspect that it was not. But he had to pay the penalty. Rolfe B. pointed out in the course of the argument (page 413) that another section empowered the Commissioners of Excise to forbear to prosecute if satisfied that a penalty was incurred "without any intention of fraud or of offending against this Act". But the Commissioners did prosecute.

6

Pollock C.B. said (page 415):

"It is not necessary that he should know that the tobacco was adulterated; for reasons probably very sound, and not applicable to this case only, but to many other branches of the law, persons who deal in an article are made responsible for its being of a certain quality."

7

And later he said (page 416):

"In reality, a prudent man who conducts this business, will take care to guard against the injury he complains of…. If he examines the article, he may reject it, and not keep it in his possession; or if he is incompetent to do that, he may take a guarantee that shall render the person with whom he is dealing responsible for all the consequences of a prosecution."

8

I need not deal with other early cases because the whole question was dealt with by R. S. Wright J. in a judgment in Sherras v. De Rutzen [1895] 1 Q.B. 918 which has frequently been approved—in particular by the Privy Council in Lim Chin Aik v. Reg. [1963] A.C. 160 at page 173. Wright J. said:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."

9

Then he mentioned two cases and continued:

"Apart from isolated and extreme cases of this kind, the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush J. in Davies v. Harvey 9 Q.B. 433, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty."

10

Then he gave examples and continued:

"Another class comprehends some, and perhaps all, public nuisances. … Lastly, there may be cases in which, although the preceeding is criminal in form, it is really only a summary mode of enforcing a civil right."

11

Down to that time there appears to have been no case of an absolute offence where the punishment could be imprisonment or the offence was truly of a criminal character.

12

One of the "isolated and extreme cases" mentioned by Wright J. was R. v. Prince Law Rep. 2 C.C. 154. The offence was taking an unmarried girl, being under the age of sixteen, out of the possession of her father. The accused did knowingly take a girl out of the possession of her father but the jury found that he believed that she was eighteen and that his belief was reasonable. That was held not to be a defence. Blackburn J. with whom nine judges concurred dealt with the matter briefly; he said:

"We are of opinion that the intention of the legislature sufficiently appears to have been to punish the abduction, unless the girl, in fact, was of such an age as to make her consent an excuse."

13

Bramwell B. with whom seven judges concurred dealt with the point at greater length. He said (page 174):

"The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong … (page 1751. The legislature has enacted that if anyone does this wrong...

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