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[1968] 2 All ER 356

Warner v Metropolitan Police Commissioner

HOUSE OF LORDS

LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD GUEST, LORD PEARCE AND LORD WILBERFORCE


13, 14, 15, 19, 20 FEBRUARY, 2 MAY 1968



Drugs - Dangerous drugs - "Possession" - Unauthorised possession - Alleged lack of knowledge of contents of parcel containing prohibited drugs - Mental element in statutory offence - Whether absolute offence - Drugs (Prevention of Misuse) Act 1964 (c 64), s 1(1).

Where the words of an enactment creating a statutory offence, being the offence of possession of a prohibited article or substance, do not expressly predicate or exclude mens rea as an element of the offence, it is wrong to impute to Parliament, even if the enactment is directed against a grave social evil, an intention to deprive an innocent accused of all right to show by way of defence that he had no knowledge, or reason to suspect, that the prohibited article or substance was in his possession or in a container that was in his possession (per Lord Reid, Lord Pearce and Lord Wilberforce; see p 367, letters c and g, p 388, letter f, p 391, letter h, p 394, letter g, post; cf p 376, letter i, to p 377, letter a, and p 384, letter b, post). "Possession" of an article may, however, be satisfied by knowledge of the existence of the thing itself in the control of the possessor, but without his knowledge of its qualities (see p 369, letter h, p 375, letter c, p 376, letter b, p 384, letter a, p 385, letter f, p 388, letter h, and p 393, letter d, post).

The appellant, who was a floor-layer by occupation, sold scent as a sideline. On 18 November 1966, he went to a café, where on inquiry whether anything had been left for him the proprietor told him that there was something for him under the counter. The appellant found two boxes there which, according to his evidence, he took without looking inside the smaller box, assuming that it also contained scent. A police officer stopped the appellant when driving his mini-van. In the smaller of two boxes were found twenty thousand tablets containing amphetamine sulphate, a prohibited drug specified in the schedule to the Drugs (Prevention of Misuse) Act 1964. The larger box contained scent. The appellant was charged with having in his possession drugs contrary to s 1^a of the Act of 1964. The jury were directed that absence of knowledge on the part of the appellant of what the smaller box contained went only to mitigation. The appellant was found guilty. On appeal to the House of Lords on the question whether for the purposes of s 1 a defendant was deemed to be in possession of a prohibited substance when to his knowledge he was in physical possession of the substance but was unaware of its true nature,

^a     Section 1, so far as material, is set out at p 370, letters e and f, post

Held - (i) although there had been misdirection of the jury in the present case (or, per Lord Morris, the summing-up was inadequate on possession) and the appellant had thereby been deprived of putting before the jury a defence that should have been open to him, yet no reasonable jury would on the evidence have accepted the appellant's story; accordingly the proviso^b should be applied (see p 369, letter i, p 370, letter a, p 375, letter f, p 391, letter a, p 395, letter a, post; cf p 381, letter g, and p 385, letter i, post).

^b     Ie the proviso to s 4(1) of the Criminal Appeal Act, 1907, as amended by s 4 of the Criminal Appeal Act, 1966

(ii) (per Lord Reid, Lord Pearce and Lord Willberforce)^c the strong inference that possession of a package by an accused was possession of its contents could be rebutted by raising real doubt either

^c     The formulation of the proposition is that of Lord Pearce; Lord Morris and Lord Guest substantially dissent from (ii) above

(a) whether the accused (if a servant or bailee) had both no right to open

[1968] 2 All ER 356 at 357

the package and no reason to suspect that the contents of the package were illicit, or

(b) that (if the accused were the owner of the package) he had no knowledge of, or was genuinely mistaken as to, the actual contents or their illicit nature and received them innocently, and also that he had no reasonable opportunity since receiving the package to acquaint himself with its contents (see p 389, letters a and b, p 394, letter a, p 369, letter i, and p 368, letter b, post).

Dictum of Lord Parker CJ in Lockyer v Gibb ([1966] 2 All ER at p 655, letter f) approved, but dictum at p 656, letter e, both approved and criticised.

Beaver v Reginam ([1957] SCR 531) considered and applied.

Chajutin v Whitehead ([1938] 1 All ER 159) considered.

Per Lord Reid (Lord Morris of Borth-y-Gest and Lord Guest dissenting): the offence with which the appellant was charged was not an absolute offence, and it was necessary for the prosecution to prove facts from which it could probably be inferred that the appellant knew that he had a prohibited drug in his possession (see p 368, letter a, and p 367, letter f, post).

Per Lord Morris of Borth-y-Gest and Lord Guest: the appellant being, on the evidence, in physical control of the package and its contents either (per Lord Morris) with his consent thereto knowing that it had contents, or (per Lord Guest) with knowledge that the package was in his control, his possession of the tablets was established for the purposes of s 1 of the Act of 1964, whether or not the appellant realised that he was in possession of a prohibited drug (see p 375, letter i, p 380, letter h, p 381, letter c, and p 385, letter f, post).

Decision of the Court of Appeal (sub nom R v Warner [1967] 3 All ER 93) affirmed but by the majority on a different ground.

Notes

There should not be attributed to Parliament the view that an offence could be enacted as an absolute offence on the basis that it would be left to the discretion of the police not to prosecute, or that justice would be served by imposing only a nominal penalty, in cases where the act in question was in fact innocently done, see per Lord Reid (p 366, letter b, post).

As to mens rea in statutory offences, see 10 Halsbury's Laws (3rd Edn) 273, 274, para 508; and for cases on the subject, see 14 Digest (Repl) 35-40, 48-95.

For the Drugs (Prevention of Misuse) Act 1964, s 1, see 4 Halsbury's Statutes (2nd Edn) 734.

Cases referred to in opinions

A-G v Lockwood (1842) 9 M & W 378affd sub nom Lockwood v A-G (1842) 10 M & W 464, 152 ER 552, 39 Digest (Repl) 270, 116.

Bank of New South Wales v Piper [1897] AC 383, 66 LJPC 73, 76 LT 572, 61 JP 660, 14 Digest (Repl) 32, 40.

Beaver v Reginam [1957] SCR 531, 33 Digest (Repl) 557 *353.

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58, [1967] 3 WLR 932Digest (Repl) Supp.

Blaker v Tillstone [1894] 1 QB 345, 63 LJMC 72, 70 LT 31, 58 JP 184, 14 Digest (Repl) 37, 70.

Brend v Wood (1946) 175 LT 306, 110 JP 317, 17 Digest (Repl) 460, 194.

Bridges v Hawkesworth [1843-60] All ER Rep 122, (1851) 21 LJQB 75, 18 LTOS 154, 3 Digest (Repl) 68, 85.

Cartwright v Green (1803) 2 Leach 952, 32 ER 412, 15 Digest (Repl) 1049, 10,330.

Chajutin v Whitehead [1938] 1 All ER 159, [1938] 1 KB 506, 107 LJKB 270, 158 LT 277, 102 JP 117, 14 Digest (Repl) 139, 94.

[1968] 2 All ER 356 at 358

Cundy v Le Cocq [1881-85] All ER Rep 412, (1884) 13 QBD 207, 53 LJMC 125, 51 LT 265, 48 JP 599, 30 Digest (Repl) 96, 719.

Davies v Harvey (1874) LR 9 QB 433, 43 LJMC 121, 30 LT 629, 38 JP 661, 14 Digest (Repl) 42, 100.

Gaumont British Distributors Ltd v Henry [1939] 2 All ER 808, [1939] 2 KB 711, 108 LJKB 675, 160 LT 646, 103 JP 256, 13 Digest (Repl) 139, 822.

Harding v Price [1948] 1 All ER 283, [1948] 1 KB 695, [1948] LJR 1624, 112 JP 189, 45 Digest (Repl) 48, 160.

Hibbert v McKiernan [1948] 1 All ER 860, [1948] 2 KB 142, [1948] LJR 1521, 112 JP 287, 15 Digest (Repl) 1086, 10,752.

Hobbs v Winchester Corpn [1910] 2 KB 471, 79 LJKB 1123, 102 LT 841, 74 JP 413, 14 Digest (Repl) 37, 71.

Lim Chin Aik v Reginam [1963] 1 All ER 223, [1963] AC 160, [1963] 2 WLR 42, Digest (Cont Vol A) 23, *166a.

Lockyer v Gibb [1966] 2 All ER 653, [1967] 2 QB 243, [1966] 3 WLR 84, 130 JP 306, Digest (Cont Vol B) 522, 243b.

Merry v Green (1841) 7 M & W 623, 10 LJMC 154, 151 ER 916, 15 Digest (Repl) 1048, 10,323.

Nichols v Hall (1873) LR 8 CP 322, 42 LJMC 105, 28 LT 473, 37 JP 424, 14 Digest (Repl) 37, 66.

Oliver v Goodger [1944] 2 All ER 481, 109 JP 48, 25 Digest (Repl) 148, 616.

Pearks, Gunston and Tee Ltd v Ward, Hennen v Southern Counties Dairies Co [1900-03] All ER Rep 228, [1902] 2 KB 1, 71 LJKB 656, 87 LT 51, 66 JP 774, 14 Digest (Repl) 43, 115.

R v Ashwell (1885) 16 QBD 190, 55 LJMC 65, 53 LT 773, 50 JP 181, 198, 15 Digest (Repl) 1048, 10,325.

R v Bishop (1880) LR 5 QBD 259, 49 LJMC 45, 42 LT 240, 44 JP 330, 14 Digest (Repl) 37, 77.

R v Carpenter [1960] Crim LR 633.

R v Cohen (1858) 8 Cox, CC 41, 14 Digest (Repl) 37, 74.

R v Gould [1968] 1 All ER 849, [1968] 2 WLR 643.

R v Hallam [1957] 1 All ER 665, [1957] 1 QB 569, [1957] 2 WLR 521, 121 JP 254, Digest (Cont Vol A) 450, 12,403a.

R v Hehir [1895] 2 IR 709, 29 ILT 119, 15 Digest (Repl) 1049, *6418.

R v Hudson [1943] 1 All ER 642, [1943] KB 458, 112 LJKB 332, 169 LT 46, 107 JP 134, 15 Digest (Repl) 1049, 10,329.

R v Jacobs (1908) 1 Cr App Rep 215, 12 Cox, CC 151, 14 Digest (Repl) 533, 5180.

R v Langa [1936] SALR (CP Div) 158.

R v Leinster (Duke of) [1923] All ER Rep 187, 17 Cr App Rep 176, 14 Digest (Repl) 181, 1475.

R v Prince [1874-80] All ER Rep 881, (1875) LR 2CCR 154, 44 LJMC 122, 32 LT 700, 39 JP 676, 14 Digest (Repl) 52, 181.

R v St Margaret's Trust Ltd [1958] 2 All ER 289, [1958] 1 WLR 522, 112 JP 312, Digest (Cont Vol A) 327, 95a.

R v Sleep [1861-73] All ER Rep 248, (1861) Le & Ca 44, 30 LJMC 170, 4 LT 525, 25 JP 532, 14 Digest (Repl) 32, 35.

R v Tolson [1886-90] All ER Rep 26, (1889) 23 QBD 168, 58 LJMC 97, 60 LT 899, 54 JP 4, 20, 15 Digest (Repl) 890, 8578.

R v Wheat, R v Stocks [1921] All ER Rep 602, [1921] 2 KB 119, 90 LJKB 583, 124 LT 830, 85 JP 203, 15 Digest (Repl) 891, 8591.

R v Wilmett (1848) 11 LTOS 495, 3 Cox, CC 281, 15 Digest (Repl) 863, 8293.

R v Woodrow (1846) 15 M & W 404, 16 LJMC 122, 105 JP 791, 153 ER 907, 14 Digest (Repl) 36, 57.

[1968] 2 All ER 356 at 359

Reynolds v G H Austin & Sons Ltd [1951] 1 All ER 606, [1951] 2 KB 135, 115 JP 192, 14 Digest (Repl) 39, 95.

Roper v Taylor's Central Garages (Exeter) Ltd (1951) 2 TLR 284, 45 Digest (Repl) 134, 494.

Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458, 15 Digest (Repl) 784, *4912.

Sherras v de Rutzen [1895-99] All ER Rep 1167, [1895] 1 QB 918, 64 LJMC 218, 72 LT 839, 59 JP 440, 14 Digest (Repl) 39, 90.

South Staffordshire Water Co v Sharman [1895-99] All ER Rep 259, [1896] 2 QB 44, 65 LJQB 460, 74 LT 761, 37 Digest (Repl) 171, 38.

Thomas v Regem (1937) 59 CLR 279.

Towers & Co Ltd v Gray [1961] 2 All ER 68, [1961] 2 QB 351, [1961] 2 WLR 553, 125 JP 391, 46 Digest (Repl) 167, 1115.

United States of America v Dollfus Mieg et Compagnie SA [1952] 1 All ER 572, [1952] AC 582, 1 Digest (Repl) 58, 433.

Webb v Baker [1916] 2 KB 753, 86 LJKB 36, 115 LT 630, 80 JP 449, 25 Digest (Repl) 119, 405.

Woolmington v Director of Public Prosecutions [1935] 1 All ER 1, [1935] AC 462, 104 LJKB 433, 153 LT 232, 14 Digest (Repl) 493, 4768.

Yeandel v Fisher [1965] 3 All ER 158, [1966] 1 QB 440, [1965] 3 WLR 1002, 129 JP 546, Digest (Cont Vol B) 151, 57a.

Appeal

This was an appeal by leave from the judgment of the Court of Appeal, Criminal Division (Diplock LJ Brabin and Waller JJ) dated 30 June 1967, and reported [1967] 3 All ER 93, dismissing the appeal by the appellant Reginald Charles Warner, against his conviction at Inner London Quarter Sessions before the chairman (R E Seaton Esq) and a jury on 3 February 1967, on a charge that on 18 November 1966, not being authorised he had in his possession twenty thousand tablets containing amphetamine sulphate tablets specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964. The point of law certified for the determination of the House of Lords was whether for the purposes of s 1 of the Drugs (Prevention of Misuse) Act 1964 the appellant was deemed to be in possession of a prohibited substance, ie, amphetamine sulphate, when to his knowledge he was in physical possession of the substance but was unaware of its true nature.

W M Howard QC and J G Boal for the appellant.

J B R Hazan and A C L Lewisohn for the Crown.

Their Lordships took time for consideration

2 May 1968. The following opinions were delivered.



LORD REID.

My Lords, the appellant was tried at Inner London Quarter Sessions on 3 February 1967, on a charge that on 18 November 1966, he had in his possession a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 namely twenty thousand tablets containing amphetamine sulphate. When stopped by the police he had in his car inter alia two packages. His defence was that he believed 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 the

[1968] 2 All ER 356 at 360

authority of Lockyer v Gibb, holding that this was an absolute offence for which mens rea was not necessary.

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.

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 is 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. We were not referred, however, 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.

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.

R v Woodrow 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 fifty-four 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 ((1846) 15 M & W at p 413) in the course of the argument 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". The commissioners, however, did prosecute. Pollock CB said ((1846) 15 M & W at p 415):

"... it is not necessary that he should know that the tobacco was

[1968] 2 All ER 356 at 361

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."

And later he said ((1846) 15 M & W at p 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."

I need not deal with other early cases because the whole question was dealt with by Wright J in a judgment in Sherras v de Rutzen which has frequently been approved--in particular by the Privy Council in Lim Chin Aik v Reginam ([1963] 1 All ER 223 at p 228 [1963] AC 160 at p 173). Wright J said ([1895-99] All ER Rep at p 169 [1895] 1 QB at p 921):

"The presumption is, that means 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 ... "

Then he mentioned two cases and continued ([1895-99] All ER Rep at p 169 [1895] 1 QB at p 921):

"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, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty."

Then he gave examples and continued ([1895-99] All ER Rep at p 1170 [1895] 1 QB at p 922):

"Another class comprehends some, and perhaps all, public nuisances ... There may be cases where, although the proceedings may be criminal in form, they are really only a summary mode of enforcing a civil right ... "

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.

One of the "isolated and extreme cases" mentioned by Wright J was R v Prince. 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 ([1874-80] All ER Rep at p 886, (1875), LR 2 CCR at p 171):

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

Bramwell B with whom seven judges concurred dealt with the point at greater length. He said ([1874-80] All ER Rep at p 884 (1875), LR 2 CCR at p 174):

"The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong ... [[1874-80] All ER Rep at p 884 (1875), LR 2 CCR at p 175]. The legislature has enacted that if anyone

[1968] 2 All ER 356 at 362

does this wrong act he does it at the risk of the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession ... In those cases he would not know he was doing the act forbidden by the statute ... [[1874-80] All ER Rep at p 885 (1875), LR 2 CCR at p 176]. The same principle applies in other cases ... a man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer. Why? Because the act was wrong in itself."

That case is no authority for construing a statute so that a member of the public who genuinely believes that he is doing something lawful and innocent can be found guilty of a criminal offence.

The other extreme case was bigamy, but there the law has been altered and mens rea is now of the essence of the offence. In a very recent case R v Gould the Court of Appeal refused to follow R v Wheat, R v Stocks, and, in my view rightly, cited with approval a judgment^d of Dixon J than whom there is no greater authority on questions of legal principle:

^d     Thomas v Regem (1937) 59 CLR 279; the passage quoted above is at p 309

"The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact--the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code."

Before coming to the more recent cases I must examine Hobbs v Winchester Corpn, because the judgment of Kennedy LJ has been much relied on. It was held that a butcher sold unsound meat at his peril. Kennedy LJ said ([1910] 2 KB at p 483):

"I think there is a clear balance of authority that in construing a modern statute this presumption as to mens rea does not exist. I think with great respect to my brother CHANNELL that he has applied to the construction of this modern statute a maxim which is recognised as applicable to offences at common law, and it may be, as STEPHEN, J., suggests in Cundy v. Le Cocq, also to offences under the earlier statutes which are to be treated on the same basis as offences under the common law."

I do not think that the distinction depends on the date of the statute; it depends on the nature of the offence. Kennedy LJ said later ([1910] 2 KB at pp 484, 485):

"I think that the policy of the Act is this: that if a man chooses for profit to engage in a business which involves the offering for sale of that which may be deadly or injurious to health he must take that risk ... He has chosen to engage in that which on the face of it may be a dangerous business and he must do so at his own risk."

The judge's words were very wide, but again they must be read in their context.

[1968] 2 All ER 356 at 363

No instance is given of any truly criminal offence under any statute where absence of mens rea was not a defence; and that is not surprising because, when counsel for the Crown in this case was invited in the course of his able argument to cite any Act of or before that period which made a truly criminal offence an absolute offence though the accused had done what he reasonably believed was innocent and lawful, he was unable to cite any, with the possible exception of a bankrupt obtaining credit without informing the creditor of his bankruptcy (R v Duke of Leinster).

A valuable discussion of the matter is to be found in the judgment of Wills J in R v Tolson, where he refers to numerous cases where similar language in two statutes has led to different results. He says ([1886-90] All ER Rep at p 30 (1889), 23 QBD at p 175):

"there is nothing in the mere form of words used in the enactment now under consideration to prevent the application of what is certainly the normal rule of construction in the case of a statute constituting an offence entailing severe and degrading punishment. If the words are not conclusive in themselves, the reasonableness or otherwise of the construction contended for has always been recognised as a matter fairly to be taken into account."

Next I must refer to Chajutin v Whitehead, where the appellant had been convicted of having in his possession an altered passport, was fined £40 and recommended for deportation, although it was found as a fact that he did not know that it had been altered and honestly believed on reasonable grounds that it had been issued to him in the ordinary course by the proper authority in Budapest. The offence was not against an Act of Parliament but against an Order--The Aliens Order, 1920. I would have thought that the first question ought to have been whether the terms of the Act of Parliament were such as to authorise the Secretary of State to create an absolute offence but that point was not taken. If Parliament chooses to create an absolute offence it can do so, but I would be very hesitant to hold that a general authority to make regulations or orders entitles a Minister to do that. In the vast majority of cases he could without hampering enforcement make it a defence for the accused to prove that he did not know and had no reasonable grounds for suspecting that the document had been altered--or whatever the offence might be. It is one thing to say that Parliament has been in the habit of making persons who engage in trades absolutely liable for certain offences. It seems to me to be quite another thing to say that Parliament has intended to authorise a Minister to deprive an ordinary member of the public of such a defence whenever he may think that desirable.

The next important case is Harding v Price. There a trailer attached to a lorry had damaged a stationary vehicle when passing it and the driver was charged with failing to stop or report the accident. He was acquitted because it was held that he did not know there had been an accident. The words of the Act were clear and imperative--the driver of a motor vehicle shall stop, and he shall report the accident. There was no question of this being in the class of serious crimes and a more alert driver would almost certainly have realised that there had been an accident; but Lord Goddard CJ however, thought it proper to say ([1948] 1 All ER at p 284 [1948] 1 KB at p 700):

"The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea, and I venture to repeat what I said in Brend v. Wood [(1946), 175 LT 306 at p 307]: 'It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent

[1968] 2 All ER 356 at 364

part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.' In these days when offences are multiplied by various regulations and orders to an extent which makes it difficult for the most law-abiding subjects in some way or at some time to avoid offending against the law, it is more important than ever to adhere to this principle."

Then Lord Goddard, however, went on to say that ([1948] 1 All ER at p 285; [1948] 1 KB at p 701):

"... there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed?"

I am bound to say that I find that distinction very unsatisfactory. Take the passport case Chajutin v Whitehead. So far as the man knew or could know, he was doing something perfectly innocent which many people constantly do--carrying a proper and valid passport. A passage often quoted from the judgment of the Privy Council in Bank of New South Wales v Piper ([1897] AC 383 at pp 389, 390) is that

"... the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent."

I can see no real difference between the lorry driver who does not know there has been an accident and the carrier of the passport who does not know there is anything wrong with it. Neither has any mens rea as explained in the above quotation. Both in ignorance do something which is forbidden--the one carries an altered passport, the other drives on after an accident--but for some reason which escapes me every man who carries a passport acts at his peril, though the man who drives on does not. Both do forbidden acts but one is guilty and the other is not. We seem to be in a very technical region far removed from the principle stated by Lord Goddard or from anything that any reasonable Parliament could possibly be supposed to have intended. I think that the explanation of this case must be that the court, disliking some of the older authorities but being unable to overrule them, seized on an insubstantial distinction to prevent any extention of the doctrine of absolute liability. I observe the same tendency in the next case Reynolds v G H Austin & Sons Ltd. There it was a condition of a licence to carry a party of people that the journey "must be made without previous advertisement to the public"; but some of the passengers did make a previous advertisement without the knowledge of the coach owner. He was prosecuted, but held to be not guilty. It was argued that this was an absolute prohibition but Lord Goddard CJ said ([1951] 1 All ER at p 609 [1951] 2 KB at p 144):

"Unless compelled by the words of the statute so to hold no court shall give effect to a proposition which is so repugnant to all the principles of criminal law in this kingdom."

Devlin J in a long judgment dealt with the question of principle. He quoted from Dean Roscoe Pound^e who said with regard to statutes creating absolute liability ([1951] 1 All ER at p 611 [1951] 2 KB at p 149):

^e     The Spirit of The Common Law. See LQR Vol 64, p 176

"Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals."

Then he said ([1951] 1 All ER at p 612 [1951] 2 KB at p 149):

[1968] 2 All ER 356 at 365

"I am not willing to conclude that Parliament can intend what would seem to the ordinary man (as plainly it seemed to the justices in this case) to be the useless and unjust infliction of a penalty."

In Sambasivam v Public Prosecutor, Federation of Malaya the Privy Council had to deal with emergency regulations ([1950] AC at p 470) "a drastic code designed to meet a state of grave disorder". The words were that "any person who carries ... any firearm not being a firearm which he is duly licensed to carry ... shall be guilty of an offence". Lord MacDermott said ([1950] AC at p 469):

"It was conceded on behalf of the Crown--and rightly in their lordships' opinion--that 'carries' here means 'carries to his knowledge', and that the carrying of a firearm by a person who did not know what he carried would not constitute an offence under this provision."

No doubt this expression of opinion by the Board was obiter but, it is significant that even in an enactment dealing with so grave a menace to public safety the Board did not think that words which apparently created an absolute offence ought to be so interpreted. No doubt one reason was the drastic penalty. It is much easier to infer an intention to exclude mens rea when the penalty is only pecuniary. I would also refer to a passage in the judgment of the Privy Council in Lim Chin Aik v Reginam ([1963] 1 All ER at p 228 [1963] AC at p 174):

"But it is not enough in their lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

In Yeandel v Fisher an innkeeper and his wife were charged that they were persons concerned in the management of premises--the inn--used for the purposes of smoking and dealing in cannabis. It was not proved that they knew that this was being done on the premises but an appeal against their conviction was dismissed. This case falls within the well established class of case where persons who carry on some particular activity must do or refrain from doing a particular thing at their peril, if, but only if, this is limited to persons engaged in the day-to-day management; then it is reasonable to suppose that if they were alert they would at least notice something suspicious. Lord Parker CJ pointed out the difference between this provision and that which makes the occupier liable if he "permits" these things. He may well have no knowledge of what is going on, but someone who is or ought to be there constantly ought to be aware of it.

The only thing that makes me hesitate about this case is the severity of the penalty and the fact that this would be regarded as a truly criminal and disgraceful offence, so that a stigma would attach to a person convicted of it. Applicants for employment, permits or other advantages are often asked whether they have been convicted of any offence. Admission of a conviction of an ordinary offence of this class ought not to be too seriously regarded--and the conviction might be of the man's company and not of the man himself. A man who had, however, to admit a conviction with regard to dangerous drugs might be at a grave disadvantage, and this might not be removed by an explanation that he had only suffered a small penalty. He might even be dismissed by his employer. This

[1968] 2 All ER 356 at 366

makes me hesitate to impute to Parliament an intention to deprive persons accused of these offences of the defence that they had no mens rea. I would think it difficult to convince Parliament that there was any real need to convict a man who could prove that he had neither knowledge of what was being done nor any grounds for suspecting that there was anything wrong.

I dissent emphatically from the view that Parliament can be supposed to have been of the opinion that it could be left to the discretion of the police not to prosecute, or that if there was a prosecution justice would be served by only a nominal penalty being imposed.

I agree with the view of the Privy Council in Lim Chin Aik v Reginam ([1963] 1 All ER at pp 228, 229 [1963] AC at pp 174, 175) where their lordships disapproved

"... the alternative view that strict liability follows simply from the nature of the subject-matter and that person whose conduct is beyond any sort of criticism can be dealt with by the imposition of a nominal penalty. The latter view can perhaps be supported to some extent by the dicta of KENNEDY, L.J., in Hobbs v. Winchester Corpn. [[1910] 2 KB at p 485] and of DONOVAN, J., in R. v. St. Margaret's Trust Ltd. [[1958] 2 All ER 289 at p 293]. But though a nominal penalty may be appropriate in an individual case where exceptional lenience is called for, the lordships cannot, with respect, suppose that it is envisaged by the legislature as a way of dealing with offenders generally. Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their lorships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended."

One or other House of Parliament has been asked on more than one occasion in recent years to approve of some change in the law which would increase the chance of convicting offenders, but has refused because it would or might also imperil the innocent. Although I would not entirely agree, I think that the general view still is that it is better that ten guilty men should escape than that one innocent man should be convicted.

I shall deal more fully later with the decision in Lockyer v Gibb because the main point seems to me to have been what is meant by "possession". Lord Parker CJ did regard the case as analogous to Yeandel v Fisher; but I do not think it is. Yeandel v Fisher was a case where a person engaged in a certain occupation--being concerned in the management of premises--was held to do so at his peril. There is, however, no limitation of the class of persons to whom regulations made under the Dangerous Drugs Act 1965 may apply. These regulations purport to make any ordinary member of the public guilty of a very serious offence if a drug within the meaning of the Act is "in his actual custody". Any person may, and most people do, from time to time take into their custody an apparently innocent package without ascertaining what it contains, without having the slightest reason to suspect that it may contain anything out of the ordinary, and indeed without having any right to open the package and see what is in it. If every person who takes such a package into his custody must do so at his peril, then this goes immensely farther than any enactment imposing absolute liability has yet been held to go, and I refuse to believe that Parliament can ever have intended such an oppressive result.

Normally the plain ordinary grammatical meaning of the words of an enactment affords the best guide. But in cases of this kind the question is not what the words mean but whether there are sufficient grounds for inferring that Parliament intended to exclude the general rule that mens rea is an essential element in every

[1968] 2 All ER 356 at 367

offence; and the authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration. That being so the layman may well wonder why we do not consult the Parliamentary debates for we are much more likely to find the intention of Parliament there than anywhere else. The rule is firmly established that we may not look at Hansard, and in general I agree with it for reasons which I gave last year in Beswick v Beswick ([1967] 2 All ER 1197 at p 1202 [1968] AC 58 at pp 73, 74). This is not a suitable case in which to reopen the matter, but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other. Members of both Houses are particularly interested in the liberty of the subject, and if it were intended by those promoting a Bill to extend the old but limited class of cases in which absence of mens rea is no defence I would certainly expect Parliament to be so informed. Then, if Parliament acquiesced, those who dislike this kind of legislation would know whom to blame. If, however, the words of the Act are not crystal clear and Parliament has not been told of this intention, I would hold without hesitation that it would be wrong to impute to Parliament an intention to depart from its known desire to prevent innocent persons from being convicted.

As things are we must do our best with the material available to us. The object of this legislation is to penalise possession of certain drugs. So if mens rea has not been excluded what would be required would be the knowledge of the accused that he had prohibited drugs in his possession. It would be no defence, though it would be a mitigation, that he did not intend that they should be used improperly. And it is a commonplace that, if the accused had a suspicion but deliberately shut his eyes, the court or jury is well entitled to hold him guilty. Further, it would be pedantic to hold that it must be shown that the accused knew precisely which drug he had in his possession. Ignorance of the law is no defence and in fact virtually everyone knows that there are prohibited drugs. So it would be quite sufficient to prove facts from which it could properly be inferred that the accused knew that he had a prohibited drug in his possession. That would not lead to an unreasonable result. In a case like this Parliament, if consulted, might think it right to transfer the onus of proof so that an accused would have to prove that he neither knew nor had any reason to suspect that he had a prohibited drug in his possession; I am unable to find sufficient grounds for imputing to Parliament an intention to deprive the accused of all rights to show that he had no knowledge or reason to suspect that any prohibited drug was on his premises or in a container which was in his possession.

It was suggested in argument that it may always be a defence, even to an absolute offence, to prove absence of mens rea. There are some dicta to that effect, but I do not think that your lordships could introduce such a far reaching doctrine without statutory authority. When we are dealing with the original type of absolute offence--a person engaging in a business where he does certain things at the peril of a pecuniary penalty--it is clearly established that absence of mens rea is no defence. And a right to prove absence of mens rea would sometimes go too far. Mens rea or its absence is a subjective test, and any attempt to substitute an objective test for serious crime has been successfully resisted. If, however, there is to be a halfway house between the common law doctrine and absolute liability, there could be an objective test: not whether the accused knew, but whether a reasonable man in his shoes would have known or have had reason to suspect that there was something wrong. I would not support an objective test where the ordinary member of the public is concerned, but it is not unreasonable to say that if a person engages in some particular business he must behave as, and have the capacity of, the ordinary reasonable man.

[1968] 2 All ER 356 at 368

Lord Parker CJ referred to a decision of the Supreme Court of Canada, Beaver v Reginam, where it was held by a majority that the offence created by legislation against the possession of drugs in terms almost identical with the British Act was not an absolute offence. He said that he preferred the view of the minority. I do not. Fauteux J for the minority founded on Chajutin v Whitehead; but I have already given my reasons for thinking that this decision is out of line with the other authorities.

It is possible to reach the same result in the present case on a narrower ground. The Drugs (Prevention of Misuse) Act 1964, s 1(1), provides that "it shall not be lawful for a person to have in his possession" any of the specified substances unless in specified circumstances. So we have to determine what is meant by having a thing in one's possession. The problem here is whether the possessor of a house or box or package is necessarily in possession of everything found in it, or, if not, what mental element is necessary before he can be held to be in possession of the contents. This problem has given rise to a great deal of legal discussion and the numerous authorities are not at all easy to reconcile. I shall not attempt that task. I think that the best approach to this case is to suppose that an innkeeper is handed, in ordinary course, a box or package by a guest for safe keeping. He has no right to open the box--it may be locked. If he is told truthfully what is in it, it may be right to say that he is in possession of the contents; but what if he is told nothing, or is told that it contains jewellery and it contains prohibited drugs? It may contain nothing but drugs or it may contain both jewellery and drugs or it may be an antique trinket apparently empty but containing drugs hidden in a small secret recess. It would in my opinion be irrational to draw distinctions and say that in one such case he is in possession of the drugs and therefore guilty of an offence, but not in another. It is for that reason that I cannot agree with the contention that if the possessor of a box genuinely believes that there is nothing in the box then he is not in possession of the contents, but that on the other hand if he knows there is something in it he is in possession of the contents though they may turn out to be something quite unexpected. In any case this contention does not seem to me to take account of the case where the possessor of the box believes that it does contain jewellery and in fact it does contain jewellery but it contains drugs as well. It would, I think, be absurd to say that the innkeeper is not guilty if he genuinely believes that the box is empty and it has some drugs secreted in it, but that he is guilty of an offence under the Act of 1964 if he truly believes that it contains jewellery, though it also contains some drugs secreted in it. If he is not guilty in the case where the box contains jewellery as well as drugs, on what rational ground can he become guilty if there is no jewellery in the box but only drugs?

In considering what is the proper construction of a provision in any Act of Parliament which is ambiguous one ought to reject that construction which leads to an unreasonable result. As a legal term "possession" is ambiguous at least to this extent: there is no clear rule as to the nature of the mental element required. All are agreed that there must be some mental element in possession, but there is no agreement as to what precisely it must be. Indeed the view which prevailed in R v Ashwell and was approved in R v Hudson went so far that a person who received a sovereign thinking it to be a shilling was held not to possess the sovereign until he discovered the mistake. There it was argued that "possession" in this context should be given a popular and not a legal meaning; but even if that were a legitimate way to construe a well-known legal term, I think that it would lead to the same ambiguity. If the ordinary reasonable man were asked what he thought "possession" meant in this context he would probably say that is a puzzle for the lawyers, and if he ventured his own opinion he might say it meant control; but if asked whether

[1968] 2 All ER 356 at 369

the innkeeper controls the contents of a box handed to him for safekeeping, I think that he would most probably say "No".

Lockyer v Gibb was relied on by the Court of Appeal as the case most nearly in point. There the accused had been in a café with some people when the police came in. A man, whom apparently she did not know, gave her a bottle containing tablets "to look after for him". She put them at the bottom of her shopping bag and when she went out she was stopped by the police. She was prosecuted under a regulation made under the Dangerous Drugs Act 1965 for being in possession of a scheduled drug. The magistrate held that there was a possibility that she did not know that the tablets contained any of the scheduled drugs. She may have been a very stupid woman, for I would think that any normal person being given a bottle of tablets in such circumstances would know perfectly well that the tablets must contain prohibited drugs which the man did not want the police to find in his possession. With regard to possession Lord Parker CJ said ([1966] 2 All ER at p 655 [1967] 2 QB at p 248):

"In my judgment, it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, or may be, in her handbag, in her room, or in some other place over which she had control. That, I should have thought, is elementary; if something were slipped into one's basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it."

I entirely agree; but that destroys any contention that mere physical control or custody without any mental element is sufficient to constitute possession under that enactment. If something is slipped into my bag I have as much physical control over it as I have over anything else in my bag. I can carry it where I will and I can transfer the whole contents of my bag to some other person without ever realising that this particular thing is included. Then, however, Lord Parker went on to say ([1966] 2 All ER at p 656, [1967] 2 QB at p 249):

"... in my judgment, under this provision, while it is necessary to show that the appellant knew she had the articles which turned out to be a drug, it is not necessary that she should know that in fact it was a drug and a drug of a particular character."

With that I cannot agree for reasons which I have already given. I do not think that this distinction will bear critical examination and I do not know what the result would be on this view if, in the present case, both the scent and the drugs had been in the same parcel. The appellant, if his story were accepted, would have rightly believed that the parcel contained scent, but would have been ignorant of the fact that drugs had been slipped in with the scent. Could it be right that if the appellant had taken possession of the parcel of scent and thereafter the drugs had been slipped in without his knowledge he would be innocent (which is Lord Parker's view), but that if the drugs had been slipped in without his knowledge before he took possession then he would be guilty? That seems to me to be quite unreasonable and it seems to me to be equally unreasonable that the fact that there were two parcels and not one should make all the difference between guilt and innocence.

If this case is to be decided on this narrower ground I accept the view of my noble and learned friends, Lord Pearce and Lord Wilberforce. It enables justice to be done in all cases which resemble this case. But it still leaves subject to injustice persons who in innocent circumstances take into their possession what they genuinely and reasonably believe to be an ordinary medicine, if in fact the substance turns out to be a prohibited drug. Nevertheless this ground is sufficient to show that the learned trial judge must be held to have misdirected the jury in the present case.

[1968] 2 All ER 356 at 370

So it remains to consider whether this is a proper case for the application of the proviso as amended by s 4 of the Criminal Appeal Act 1966. Taking into account the prevarications of the appellant before he produced his final story and the whole circumstances, I cannot believe that any reasonable jury would accept that story. If they did not, they would be certain to return a verdict of guilty. So in my judgment there has been no miscarriage of justice and I would, therefore, dismiss this appeal.



LORD MORRIS OF BORTH-Y-GEST.

My Lords, the charge which was brought against the appellant was that he was in unlawful possession of twenty thousand tablets which, as was proved at the trial, contained amphetamine sulphate. That was a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964. It was not lawful for him to have the tablets in his possession unless he came within one of the groups or classes of people in the case of whom possession is not prohibited. He did not, and there was no suggestion that he did. The charge was laid under s 1 of the Drugs (Prevention of Misuse) Act 1964. That is an Act, as its long title proclaims, "to penalise the possession and restrict the importation of drugs of certain kinds". Section 1(1) provides that subject to any exemptions for which provision may be made by regulations made by the Secretary of State and to the provisions of the section which follows

"... it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act unless--

(a) it is in his possession by virtue of the issue of a prescription by a duly qualified medical practitioner or a registered dental practitioner for its administration by way of treatment to him, or to a person under his care; or

(b) it is in his possession by virtue of the issue of a prescription by a registered veterinary surgeon or a registered veterinary practitioner for its administration by way of treatment to an animal under his care; or

(c) he is registered in a register kept for the purposes of this paragraph by the Secretary of State as a manufacturer of, or a dealer in bulk in, substances for the time being specified in that Schedule ... "

A person "who has a substance in his possession in contravention of the provision" is liable to a fine or to imprisonment or to both as set out in the section.

In sub-s (2) it is provided that sub-s (1) shall not be taken to prohibit possession by a person of any one of twelve specified "kinds" (such, for example, as a duly qualified medical practitioner or an authorised seller of poison) provided that it is in his possession for the purpose of his acting in the capacity of a person of that kind. Other exemptions are provided for by the terms of sub-s (3) and sub-s (4). Pursuant to the power given him by s 1(1) of the Act the Secretary of State on 17 September 1964, made Regulations (the Drugs (Prevention of Misuse) Exemptions Regulations 1964^f) under which the exemptions, subject to stated conditions, were given so that prohibition of possession would not apply (inter alia) to carriers or to those concerned, in the performance of their duty, in the transmission of postal packets by post or in certain specified circumstances to the owner or master of certain ships.

^f     SI 1964 No 1528

It appears therefore to be clear that unless a person comes within the exclusions and exemptions which are specified and precise it is not lawful for him "to have in his possession" any one of the substances specified in the Schedule to the Act of 1964.

It was for the prosecution to prove that the appellant had the tablets in his possession; if he did so have them then his possession was in contravention of

[1968] 2 All ER 356 at 371

s 1 of the Act of 1964. The appellant was convicted. He appealed to the Court of Appeal. One of the grounds of his appeal was that there had been misdirection as to "possession". On 30 June 1967, the Court of Appeal gave judgment dismissing the appeal. On 28 July 1967, the appellant (who was on that occasion unrepresented) applied to the Court of Appeal for leave to appeal. The court adjourned the application but said that while in their view there was a point of law of general public importance they did not consider, having regard to the particular facts of the case, that they ought to give leave to appeal. On a renewal of the application on 9 October leave to appeal was refused. On further consideration on 19 October leave was granted. The point of law of general public importance was stated by the Court of Appeal to be:

"Whether for the purposes of s. 1 of the Drugs (Prevention of Misuse) Act 1964 a defendant is deemed to be in possession of a prohibited substance when to his knowledge he is in physical possession of the substance but is unaware of its true nature."

It will be seen that there is a certain ambiguity in this formulation.

Your lordships were not supplied with a transcript of the evidence but were invited to take the facts as recounted or summarised in the summing-up. It appears that on the morning of 18 November 1966, the appellant was driving a minivan. He was stopped by a police officer. The police officer questioned him as to the contents of his van. In the van there were three cases. Being asked what was in them the appellant said that it was rubbish. Being further asked separately as to each one of the three cases the appellant said that each only contained rubbish which it was his intention to dump. In the words of the summing-up--"Eventually there emerged two packages". They were then opened by the police. One contained bottles of scent. The other contained the twenty thousand tablets containing amphetamine sulphate. The evidence as to what was said at the time was conflicting. The appellant said that the police officer did not ask him where he got the pills, but had said that they looked like "pep pills" and that he (the appellant) had said "I don't know how they got there". The police officer said that he did ask the appellant where he got the pills and that the appellant's explanation was that they came from his address.

Evidence for the defence was given at the trial by the appellant, by the owner of a certain café and by a friend of the appellant. The effect of this evidence was that the appellant (who is by occupation a floor-layer) had by arrangement with his friend been selling scent as a sideline. The owner of the café sometimes allowed customers to leave goods to be called for. The friend called at the café on the morning of 18 November and by permission left a package for the appellant. The café owner put it (one package) under the shelf under the counter. Some ten minutes later the appellant called at the café. He learned that his friend had been but had gone. He enquired whether his friend had left anything for him and was told by the café proprietor: "Yes, it is under the counter." The evidence of the appellant, according to the summing-up, was that he then looked under the counter: "there were two boxes; one was the big box which in fact had the scent in it and on top was the smaller box: I didn't look inside it: I assumed it was scent, so I collected it up and I drove off."

On the state of the evidence as summarised above the question arises as to the extent of the burden of proof which lay on the prosecution. It was for the prosecution to prove that the prohibited substance was in the possession of the appellant. They undoubtedly proved that the tablets which were inside the package which he had were tablets which contained prohibited substances. They had to prove that the appellant had the tablets in his possession. Did this involve that the prosecution had to establish not only that the appellant had the package in question but also had to establish positively that he knew that the contents of his package were tablets containing amphetamine sulphate tablets? Stated

[1968] 2 All ER 356 at 372

otherwise, if the appellant says "I had the package and I knew that it had certain contents but I thought that the contents were bottles of scent", is the onus cast on the prosecution to prove that he knew that the contents were not bottles of scent but were prohibited substances?

If these burdens rested on the prosecution then the summing-up was defective. The jury were directed in these terms:

"Now then, members of the jury, it was under control because 'possession' means that you have control. [The appellant] quite clearly had, and does not deny he had, control of these pills, and if he had, and it is a matter for you to make up your minds about because you are the judges of fact--if you think the evidence is, he does not dispute it, that he had control of that box which in fact turned out to be full of amphetamine sulphate, that creates the original offence; it is only mitigation that he did not know."

The first question which arises relates to the meaning of the words "to have in his possession" in s 1. Let the case be supposed that in a man's pocket there is to his knowledge a package having contents, which contents are in fact prohibited substances which it is not lawful for him to have in his possession, and that when the package is produced from his pocket he says "I thought they were sweets", is the onus cast on the prosecution to prove that he knew that they were not sweets? It is submitted on behalf of the Crown that if a man chooses to have on him a package with contents he takes the risk, if he has not examined what he has, that he may be in possession of that which it is not lawful for him to have.

It is submitted that if, in some particular circumstances, it is found that the contents of a package which someone deliberately has in his possession are contents which it is not lawful for him to have, but if it appears that by some series of mischances he was under a complete misapprehension as to what he had, there could be good reasons to invite a court to exercise the ample powers it possesses where mitigating circumstances are compelling.

As the Drugs (Prevention of Misuse) Act 1964 does not contain a definition of the word "possession" it must be given a sensible and reasonable meaning in its context in an Act designed to penalise the possession of drugs. The word "possession" is much to be found in the vocabulary of the law and it cannot always be given the same meaning in all its divers contexts; but the notion of being in possession of drugs is not one which as a rule should present difficulty in comprehending. A useful start in considering an Act of Parliament is to take the plain literal and grammatical meaning of the words used. In A-G v Lockwood, Alderson, B., said ((1842), 9 M & W at p 398):

"The rule of law, I take it, upon the construction of all statutes ... 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."

On this basis I think that the notion of having something in one's possession involves a mental element. It involves in the first place that one knows that one has something in one's possession. It does not, however, involve that one knows precisely what it is that one has got. I agree with what Lord Parker CJ said in Lockyer v Gibb ([1966] 2 All ER at p 655 [1967] 2 QB at p 248):

"In my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, or may be, in her handbag, in her room, or in some other place over which she has control. That, I should have thought, is elementary; if something were slipped into

[1968] 2 All ER 356 at 373

one's basket and one had not the vaguest notion it was there at all one could not possibly be said to be in possession of it."

In this connexion reference may usefully be made to the case of R v Woodrow. In that case (in 1846) a dealer in tobacco was held liable to the monetary penalty imposed by s 3 of 5 & 6 Vict c 93. There was a provision "that every ... dealer in or retailer of tobacco who shall ... have in his possession" any adulterated tobacco should forfeit £200. The dealer had purchased the tobacco as genuine and had no knowledge or cause to suspect that it was not so. The section did not contain the word "knowingly". Pollock CB said that s 3 applied to the case "whether the party knows it or not". Parke B said ((1846), 15 M & W at p 417):

"With respect to the offence itself, I have not the least doubt that the ordinary grammatical construction of this clause is the true one. It is very true that in particular instances it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would be very seldom able to do so. The legislature have made a stringent provision for the purpose of protecting the revenue, and have used very plain words. If a man is in possession of an article as the defendant was in this case, and that article falls within the terms mentioned in the statute, there is no question but that the offence is proved."

Alderson B said ((1846) 15 M & W at p 418):

"... the words of the Act, though they are no doubt very stringent, are nevertheless very clear, and any retailer of tobacco who has an adulterated article in his possession is liable to the penalty. I cannot say that this man had not the tobacco in his possession, because he clearly knew it. He did not know it was in an adulterated state, but he knew he had it in his possession; and the question of 'knowingly', it appears to me, is involved in the word possession. That is, a man has not in his possession that which he does not know to be about him. I am not in possession of anything which a person has put into my stable without my knowledge. It is clear, therefore, that possession includes a knowledge of the facts as far as the possession of the article is concerned."

In the present case there is no suggestion that any package got inadvertently or surreptitiously in to the appellant's hands. There may be situations in which on particular facts a jury would have to determine whether some parcel or package was in a man's pocket or bag or house or motor-car without any knowledge on his part that it was there. No such question arises in this case.

If a package or parcel is in a house which is occupied by several people, then there may be facts calling for the consideration of a jury whether it has been proved that the package or parcel was in the possession of some one person. Whatever view, however, a jury might in the present case have formed as to the origin and movements of the package in which were the twenty thousand tablets, the appellant was in my opinion on his own admissions in possession of those tablets. He expected to receive a package. He says that he found a second package. We were told that the second package, though smaller than the one containing scent, was of the size of about a cubic foot. He took both packages away. He put them in his van. He intended to exercise complete control over both of them. He could have left the second parcel. Presumably he could have opened it. On his story he assumed that it had been left for him. Though we have not seen the transcript of the evidence, it is to be assumed that his friend said that he only left one package (a package containing scent). Taking the appellant's evidence at its face value, however, if he assumed that his friend had left two

[1968] 2 All ER 356 at 374

packages for him, and if he assumed that both contained scent, when he took both packages and put them in his van and drove away with them he was taking the packages and their contents in his possession. If, in having the tablets in his possession, he became guilty of an offence under s 1, then if a court considered that in truth he believed that he had scent and not tablets it would be for the court to decide as to the weight of and the effect to give to such mitigating circumstances.

Reference was made in argument to cases in which the question arose whether, if a man received from another a coin of a different denomination from that which it had been intended to hand over, there could be a conviction of larceny. Thus in R v Ashwell, A asked K for a loan of one shilling. K by mistake, intending to hand a shilling coin to A, in fact handed him a sovereign. Could A be convicted of larceny of the sovereign? Had K parted with the possession of the sovereign to A so that A was lawfully in possession of it? The case gave rise to considerable divergence of judicial opinion. A somewhat similar question arose in R v Jacobs, where a half sovereign was by mistake handed over instead of a sixpence. The crime of larceny needed proof of an animus furandi; but it was also necessary to prove that the accused has taken the chattel from the possession of its possessor. Larceny was an offence against possession. If the possessor K had given A possession of the sovereign, then A was not guilty of larceny. If the possessor (K) had handed over the chattel by mistake, did the accused (A) acquire possession? I do not propose to consider these cases or to examine their precise facts for, in my view, they have no bearing on the present problem. There is no suggestion in the present case that the appellant took possession by mistake of the package which contained the tablets. It is difficult to know what are the true facts, but if for present purposes it is assumed that some person (other than one of those who gave evidence) placed a package on the top of the one left by the friend, it would seem likely that possession of that package was not being retained by that person. It would seem probable that the package was left by someone so that the appellant would take it. Conceivably, however, the package could have been left by someone so that someone other than the appellant would take it. Conceivably, also, someone could have just placed the package down while having the intention shortly thereafter himself to take it up again. Even though there are these possibilities, no question of the law of larceny is here involved. It does not seem to me that it can be said that the appellant took the package itself by mistake. He took it quite deliberately. He intended to take it. He did not open it or examine it. He took it away. Acting freely and consciously he intended to take it and its contents away. He placed the package in his van and drove away. If his evidence warranted credence, it would not mean that he took possession by mistake; it would mean that by mischance or lack of care in investigation he found that the contents which he took into his possession were different from what he thought that they were.

Section 1 of the Act of 1964 does not contain any definition of the word "possession". Unless one of the exemptions applies it is not "lawful" for a person "to have in his possession" one of the scheduled substances, and a person who "has a substance in his possession" in contravention of the provision is liable to certain penalties either on summary conviction or on conviction on indictment. The problem presented in this case is, in my view, purely one of construction and interpretation. The intention of Parliament is to be ascertained. Parliament uses words to express its intention. The words that are employed must be considered in their context and in the setting of the purpose which Parliament has proclaimed. What, then, does "possession" mean? Does "possession" involve that someone must knowingly have control over some thing; does "possession" further involve that there must be knowledge, either in general or with precision, as to what the thing is? In relation to the present case

[1968] 2 All ER 356 at 375

the practical problem that arises is whether it was necessary for the prosecution to prove that the appellant knew that what he had was one of the substances named in the Act of 1964 or at least to prove that he knew that what he had was a parcel of tablets? Though the decision in Lockyer v Gibb was not a decision in regard to the Act of 1964 but related to the Dangerous Drugs Act 1965 and to a regulation^g which in defining possession had a "deeming" provision, the question now raised concerns the validity or the applicability of the reasoning which was thus expressed in the judgment in that case ([1966] 2 All ER at p 656 [1967] 2 QB at p 249):

^g     The Dangerous Drugs (No 2) Regulations 1964 (SI 1964 No 1811)

"... while it is necessary to show that the appellant knew she had the articles which turned out to be a drug, it is not necessary that she should know that in fact it was a drug and a drug of a particular character."

In my view, the approach denoted by those words is applicable in the present case. The question resolves itself into one as to the nature and extent of the mental element which is involved in "possession", as that word is used in the section now being considered. In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it. They need not prove that in fact he had actual knowledge of the nature of that which he had. In Lockyer v Gibb, Lord Parker CJ gave the illustration of something being slipped into a person's basket. While the person was unaware of what had happened there would be no possession. But in such circumstances on becoming aware of the presence of the newly discovered article there would be opportunity to see what the article was: whether the opportunity was availed of or not, if the article was deliberately retained there would be possession of it. So also in the illustration given by Alderson B in 1846 in R v Woodrow. Something is placed in a man's stable without his knowledge. He is not in possession of it. If he goes to his stable and sees the unexpected presence of the article then, according to the particular circumstances, he might with knowledge so act as to assume control of it. He would then be in possession of the article.

On the admitted facts in the present case the appellant was, in my view, in possession of the tablets. Though the summing-up was inadequate in its references to the conception of possession, on the admitted facts of this particular case the omissions in the summing-up do not vitiate the conviction. In other cases, however, it would be necessary to give a more complete and careful direction to a jury as to what the prosecution must prove in regard to possession. A jury must not convict unless they are satisfied that possession in an accused has been proved. There can be no rigid formula to be used in directing a jury. Varying sets of facts and circumstances will call for guidance on particular matters. The conception to be explained, however, will be that of being knowingly in control of a thing in circumstances which have involved an opportunity (whether availed of or not) to learn or to discover, at least in a general way, what the thing is. The same result might follow if it was a matter of indifference whether there was such opportunity or not. If there is assent to the control of a thing, either after having the means of knowledge of what the thing is or contains or being unmindful whether there are means of knowledge or not, then ordinarily there will be possession. If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains--then, ordinarily, I would suppose that there would not be possession. If, however, someone deliberately assumes control of some package or container, then I would think that he is in possession of it. If he deliberately so assumes control knowing that it has contents, he would also be in possession of the contents. I cannot think that it would be rational to hold that someone who is in possession

[1968] 2 All ER 356 at 376

of a box which he knows to have things in it is in possession of the box but not in possession of the things in it. If he had been misinformed or misled as to the nature of the contents, or if he had made a wrong surmise as to them, it seems to me that he would nevertheless be in possession of them. Similarly, if he wrongly surmised that a box was empty which in fact had things in it possession of the box (if established in the way which I have outlined) would involve possession of the contents. For the purposes of the present Act, however, I do not consider that, in order to prove possession of a prohibited substance, it is necessary to prove knowledge that the thing possessed was in fact a prohibited substance.

It is to be observed that in Lockyer v Gibb the appellant did not assert that the prosecution had to prove that she knew that she had a particular drug or even a dangerous drug, but it was submitted that at least it had to be proved that she knew that what she had was a drug. In a similar way it has not been contended on behalf of the appellant in the present case that the prosecution had to prove that the appellant knew that the substance which he had was a substance specified in the Schedule to the Act of 1964. What was contended was that the prosecution had to prove that the appellant knew that he had some substance other than scent and that he did not believe that he had lawful authority to have what he had or, stated otherwise, that the prosecution had to prove that the appellant did not believe that he had an innocent purpose in having what he had. My lords, I find this not only vague and imprecise and unworkable but also illogical. Accepting that the words "to have in his possession a substance" carry with them an involvement of knowledge, I could have understood a submission that in a prosecution under s 1 of the Act of 1964 the prosecution must both prove that someone with knowledge has possession of a thing and also prove that he knew what was the quality of the thing, ie, that the thing was or contained a substance specified in the Schedule to the Act of 1964. I can, however, see no reason for, and I know of no authority for, the contention advanced on behalf of the appellant.

The present case concerns wording which is different from that which was considered in R v Hallam. That case required a construction of the words in s 4(1) of the Explosive Substances Act, 1883, which were:

"Any person who ... knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he ... does not have it in his possession or under his control for a lawful object, shall, unless he can show that he ... had it in his possession ... for a lawful object, be guilty of felony."

Lord Goddard CJ in giving the judgment of the court said that the point raised was purely a matter of construction of the sentence. He said ([1957] 1 All ER at p 665 [1957] 1 QB at p 572):

"The question is whether the word 'knowingly' means that he must know, not only that he has a parcel or a substance in his possession but also that it is an explosive. The words, I repeat, are 'knowingly has in his possession any explosive substance'. Having given the best consideration that we can to this case, we think that the words must mean that he must know that it is an explosive substance."

Inasmuch as this case depends on the interpretation of s 1 of the Act of 1964 now in question I doubt whether it would be profitable, even if it were practicable, to attempt to refer to, or to review all the very numerous cases in which courts have held that in particular legislation Parliament has used words which exclude wholly or partially the requirement of mens rea. That Parliament may so legislate admits of no doubt.

It think that it is important to recognise and to affirm that it is a general

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principle of our law that to commit an offence a man must have a guilty mind. Generally speaking, a statute will be applied as though that principle was incorporated into the enactment. I think, however, that it may be too sweeping to say that, if Parliament introduces the word "knowingly", it merely states what would be implied. The presence or absence of the word "knowingly" may in some cases be of great importance in construing particular words in a particular enactment.

In R v Sleep, the accused was charged under a legislative enactment, 9 & 10 Wm 3 c 41, which was designed for the protection of government property which would be marked with broad arrows. The accused had despatched certain copper: it was proved that some of the copper had broad arrow marks. The relevant statutory words were: "in whose possession ... goods ... marked as aforesaid shall be found". At the trial a question was left to the jury: "Whether the prisoner knew that the copper or any part of it was so marked?". The answer of the jury was: "We have not sufficient evidence before us to show that he knew it." It was held in the Court for Crown Cases Reserved that he ought not to have been convicted. In giving judgment Sir Alexander Cockburn CJ used these words ((1861) Le & Ca at p 54 [1861-73] All ER Rep at pp 250, 251):

"It has been contended that mere possession constitutes the offence provided against by the 9 & 10 Wm. 3 c. 41; but I am unable to adopt that view. It is a principle of our law that to constitute an offence there must be a guilty mind; and that principle must be imported into the statute, as has already been laid down in R. v.