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香港特別行政區

終審法院

香港特別行政區 答辯人
(HKSAR)

-訴–

曾世矚 上訴人
(TSANG Sai Chuk)
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上訴人典據宗卷

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(於三月四日下午四時在終審法院​聆訊)

「令人厭惡」及「威脅性質」的範圍
1. Brutus v Cozens [1973] A.C. 854
2. Chambers v DPP [2013] 1 W.L.R. 1833
3. DPP v Collins [2006] 1 W.L.R 2223
4. DPP v Smith [2017] EWHC 359 (Admin)
5. Karsten v Wood Green Crown Court [2014] EWHC 2900 (Admin)
6. R v Clear [1968] 1 Q.B. 670
7. R v Lawrence and Pomroy (1971) 57 Cr. App. R. 64
8. Criminal Law Review 2005 - Grossly offensive telephone messages: test for
determining whether message grossly offensive; by David Ormerod

犯罪意圖的測試
9. Chan Ping Kwan v HKSAR HCMA 960/2004
10.Sweet v Parsley [1970] A.C. 132

引述的法案
(a) United Kingdom Communications Act 2003 s.127
854
L1973J

BRUTUS APPELLANT
AND
COZENS RESPONDENT

[On appeal from COZENS V. B R U T U S ]


B

1972 June 19, 20; Lord Reid, Lord Morris of Borth-y-Gest,


July 19 Viscount Dilhorne, Lord Diplock and
Lord Kilbrandon

Crime—Public order—" Insulting . . . behaviour "—Tennis match—


Public watching from stands but having no access to court—
Interruption by demonstrators invading court—Resentment of
spectators—Whether " insulting . . . behaviour "—Public Order
Act 1936 (1 Edw. 8 & 1 Geo. 6, c. 6), s. 5 (as amended by
Public Order Act 1963 (c. 52), s. 1 (1} and Race Relations
Act 1965 (c. 73), s. 7)
Statute—Construction—Words used in ordinary sense—Not a
question of law
D
Members of the public were admitted to watch the annual
open tennis tournament at Wimbledon from stands around
the courts. They were not allowed access to the courts.
During a tennis match the appellant slepped on to a court
blowing a whistle. He threw around leaflets, attempted to
give one to a player and sat down on the court. Upon the
blowing of the whistle other persons, some bearing banners
or placards on which slogans were written, came on to the
court and more leaflets were distributed. Play was stopped.
The appellant was charged with using insulting behaviour
whereby a breach of the peace was likely to be occasioned
contrary to section 5 of the Public Order Act 1936,1 as
amended. The justices held that his behaviour had not been
insulting, and dismissed the information without calling on him
to give evidence.
On appeal by the respondent prosecutor, the Divisional
Court held that " insulting . . . behaviour " in section 5 of the
Act of 1936 was behaviour which affronted other people and
evidenced a disrespect or contempt for their rights, and which
reasonable persons would foresee as likely to cause resentment
or protest; that on the findings of the justices, which were to
be regarded as provisional, insulting behaviour by the appel-
lant had been established and the case would be sent back to
them to continue the hearing.
On appeal by the appellant: —
Held, that the justices' decision was one of fact just as
would be the decision of a jury if called upon to decide
whether a person had used insulting behaviour; that the deci-
sion either of justices or of a jury could be attacked if there
had been a misdirection, but that since in the present case
1
H
Public Order Act 1936, s. 5 (as amended): "Any person who in any public
place . . . uses . . . insulting . . . behaviour with intent to provoke a breach of the
peace or whereby a breach of the peace is likely to be occasioned, shall be guilty
of an offence."
855
A.C. Cozens v. Brutus (H.L.(E.))
there was no ground whatsoever for suggesting that the justices
A had misdirected themselves the appeal must be allowed (post,
pp. 862H—863B, G, 865H—866B, G-H).
Bryan v. Robinson [1960] 1 W.L.R. 506, D.C. considered.
Per Lord Reid. The meaning of an ordinary word of the
English language is not a question of law. The proper con-
struction of a statute is a question of law. If the context shows
that a word is used in an unusual sense the court will determine
in other words what the unusual sense is. It js for the tribunal
™ which decides the case to consider, not as law but as fact,
whether in the whole circumstances the words of the statute
do or do not as a matter of ordinary usage cover or apply to
the facts which have been proved. If it is alleged that the
tribunal has reached a wrong decision then there can be a
question of law but only of a limited character. The question
would normally be whether their decision was unreasonable in
_ the sense that no tribunal acquainted with the ordinary use of
^ language could reasonably reach that decision (post, p.
861D, E).
Decision of the Divisional Court of the Queen's Bench
Division [1972] 1 W.L.R. 484; [1972] 2 All E.R. 1 reversed.
The following cases are referred to in the opinions of their Lordships:
Bryan v. Robinson [1960] 1 W.L.R. 506; [1960] 2 All E.R. 173, D.C.
D Cooper v. Shield [1971] 2 Q.B. 334; [1971] 2 W.L.R. 1385; [1971] 2
All E.R. 917, D.C.
Jordan v. Burgoyne [1963] 2 Q.B. 744; [1963] 2 W.L.R. 1045; [1963]
2 All E.R. 225, D.C.
The following additional cases were cited in argument:
Kinney v. Police [1971] N.Z.L.R. 924.
E Melser v. Police [1967] N.Z.L.R. 437.
Vernon v. Paddon, The Times, February 12, 1972, D.C.
Ward v. Holman [1964] 2 Q.B. 580; [1964] 2 W.L.R. 1313; [1964] 2
All E.R. 729, D.C.
Wise v. Dunning [1902] 1 K.B. 167, D.C.
APPEAL from the Divisional Court of the Queen's Bench Division.
F This was an appeal by leave of the House of Lords by the appellant,
Dennis Brutus, from an order of the Divisional Court (Lord Widgery C.J.,
Melford Stevenson and Forbes JJ.) dated February 4, 1972, allowing the
appeal by way of case stated of the respondent, John Cozens, from the
dismissal by Wimbledon justices on July 30, 1971, of an information
alleging a contravention of section 5 of the Public Order Act 1936 (as
amended) preferred by him against the appellant.
" The case stated was in the following terms:
On June 28, 1971, an information was preferred by the respondent
against the appellant that on the same day at the All England Lawn
Tennis Club, Church Road, Wimbledon, S.W.19, he had used insulting
behaviour whereby a breach of the peace was likely to be occasioned
contrary to section 5 of the Public Order Act 1936 as amended by the
H Public Order Act 1963 and the Race Relations Act 1965.
The justices heard the information on July 30, 1971, and found the
following facts. On the afternoon of Monday, June 28, 1971, the annual
open tennis tournament was in progress at the All England Lawn Tennis
856
Cozens v. Brutus (H.L.(E.)) [1973]
Club, Church Road, Wimbledon. The public were admitted on payment to
the grounds which included 16 tennis courts. The administrative buildings "
of the club were within the grounds and contiguous with the main tennis
court known as the Centre Court. That court was entirely surrounded by
stands for spectators, which were partly covered, the court itself being
uncovered as were all the other courts and stands. Sitting or standing
space was provided in those stands and around all the courts for spectators,
being both members of the public as well as club members. No person was g
permitted at any time to go on to the playing area of any of the courts or
the grass immediately adjacent to the playing area other than the players,
ball boys or club officials. Low barriers were erected around the courts
which marked out those areas from that to which the public had access.
At 2.30 p.m. on No. 2 Court there was a men's doubles match in
progress involving Messrs. Davidson and Bowrey versus Messrs. Pilic and
Drysdale. Drysdale was a South African. At that time when the match had ^
been proceeding for some 30 minutes and when one of the players was about
to begin his service, the appellant stepped from the audience over the
barrier and on to the court blowing a yellow plastic whistle. He threw
leaflets about and approached the players at one end. He attempted to
hand Bowrey a leaflet but he would not accept it. Upon the whistle
blowing, nine or ten other persons also made their way on to the court, £>
some holding up banners or placards on which slogans were written and
more leaflets were distributed. Play in the match could not continue after
the appellant walked on to the court.
The respondent, who was a police constable of the Metropolitan police
force on duty in uniform at the time, went on to the court and up to the
appellant as he turned to the second player. He asked him to leave the
court. The appellant made as if to leave but then pushed the respondent E
to one side and sat down on the court. When the appellant interrupted
the play in the match there were loud shouts from the spectators
who seemed upset and gesticulated; several waved their programmes,
shook their fists at him and a number shouted " off-off," It was necessary
for the respondent to lift and drag the appellant bodily from the court and
when that was accomplished there were cheers from the crowd. Once the p
appellant was off the court he co-operated and went quietly with the
respondent away from the court. Some of the crowd along a corridor
under a stand showed hostility towards the appellant and gesticulated and
attempted to strike him. All the other demonstrators left the court volun-
tarily shepherded by another police constable and nobody sat down apart
from the appellant. Nobody else was arrested. The incident from start
to finish lasted between two to three minutes. The appellant was told G
why he was arrested in the corridor coming from the court and when he
was later charged he said: " I had no intention of breaking the law or
causing a breach of the peace. This was an entirely peaceful protest."
At the close of the prosecution case it was contended on behalf of the
appellant (a) that there was no evidence to show that the appellant
intended to cause a breach of the peace; (b) that the incident took place on o
the court itself and since that was not open to the public that did not
occur in a public place; (c) that the behaviour itself was not insulting and
that it amounted to no more than annoyance.
857
A.C. Cozens v. Brutus (H.L.(E.))
It was contended on behalf of the respondent that (a) the charge pre-
A
ferred against the appellant being that " . . . he did use insulting behaviour
whereby a breach of the peace was likely to be occasioned . . ." it was
immaterial whether the appellant intended a breach of the peace or not;
(b) the court had to consider the grounds as a whole and if the complex
in reality was an open space to which at the material time the public
were permitted to have access then it mattered not if there was a small
3 area within the grounds that at the material time the public were not
intended to use; (c) to interrupt a tennis match with such behaviour was
an affront both to the players and the audience, who had come for the
purpose of watching tennis, and taking into account that the appellant
actually sat down upon the court his behaviour actually caused a breach of
the peace as well as amounting to conduct that was likely to do so.
The justices agreed with contention (a) made on behalf of the respondent.
C Having considered the evidence and the authorities cited, the justices came
to the conclusion that the appellant's behaviour was not insulting within
the terms of the offence alleged against him. " Insulting behaviour"
being an essential element of an offence within section 5 of the Public
Order Act 1936, the justices did not consider the other points raised before
them and accordingly dismissed the information without calling upon the
JJ appellant.
The respondent appealed.
The question for the opinion of the court was whether, on the above
statement of facts, the justices came to a correct determination and decision
in point of law.
The Divisional Court allowed the appeal.
On an application by the appellant, the court certified that a point of
law of general public importance was involved in the decision, namely,
whether conduct which evidenced a disrespect for the rights of others so
that it was likely to cause their resentment or give rise to protests from
them was insulting behaviour within the meaning of section 5 of the Public
Order Act 1936 but refused leave to appeal. Subsequently the Appeal
Committee granted leave to appeal,
F
Morris Finer Q.C. and B. E. Capstick for the appellant. It is
pertinent to consider the preamble to the Public Order Act 1936:
"An Act to prohibit the wearing of uniforms in connection with
political objects and the maintenance by private persons of associations
of military or similar character; and to make further provision for the
Q preservation of public order on the occasion of public processions and
meetings and in public places."
For the purposes of this appeal, it is conceded that this tennis court at
Wimbledon was a public place: see Cooper v. Shield [1971] 2 Q.B. 334,
340D per Lord Parker C.J. It is also conceded that on the evidence before
the magistrates the appellant is not able to contend that his conduct was
JJ not likely to occasion a breach of the peace. But the question here is
whether on the evidence and on the proper construction of the relevant
words of section 5 of the Act of 1936 the appellant's conduct constituted
insulting behaviour.
858
Cozens v. Brutus (H.L.(E.)) [1973]
The reason for the passing of the Public Meetings Act 1908 and the
Public Order 1936, was that threatening, abusive, oi insulting behaviour
was not covered by previous statutory provisions, nor was it an offence
at common law. For breach of the peace there must be the possibility
of personal violence.
Before the enactment of section 5 of the Act of 1936, there was no
offence of an analogous nature either at common law or under any
statute which applied to the country at large, for the Metropolitan Police B
Act 1839 was confined to the metropolis. There is very little documenta-
tion in relation to the words in question. The word " insult" first appears
in section 4 of the Vagrancy Act 1.824. " Insult" there bears a fairly
clear meaning from its context. The Metropolitan Police Act 1839 put
the police force on its modern basis and it is pertinent to remember that
the Chartist troubles had commenced at the time o!: the passing of that _
Act. Section 54 is the section relevant to the presem appeal. Subsection
(13) thereof is couched in exactly the same terms as section 5 of the Act
of 1936, save that for the words " may be " are substituted " is likely to."
It would seem, therefore, that section 54 (13) is the origin of section 5.
Contrast section 54 (11) and (17) where the relevant word is " annoyance,"
which covers a very different situation from that of insulting behaviour.
The Divisional Court's approach in the present case is wrong. There D
is no evidence in the stated case that any person was affronted. Further,
there is a distinction between an affront and an insult. An insult is
something which is ad hominem—conduct aimed at or intended at a
person's susceptibilities. A strict definition is reqirired here for other-
wise all kinds of conduct could lead to conviction of this quite serious
offence. It is to be remembered that this is a civil liberty question and g
the ambit of the section should be confined. The Divisional Court's
construction would be correct if section 5 were to read " behaviour which
affronts other people, and evidences a disrespect or contempt for them.'1''
The rights of others is a factor which should not bo taken cognisance of
for present purposes. There are many forms of anti-social behaviour
which fall far short of insulting behaviour, for example, persons who
come late into a theatre to the intense annoyance of the audience. This F
may well be an affront, but cannot possibly be termed " insulting
behaviour." English law lacks an offence of criminal trespass or of
disorderly conduct in a public place not coming within the Public Meetings
Act 1908.
A sit-in per se is not threatening, abusive or insulting behaviour and
this illustrates the danger of importing the concept of contempt for the Q
right of others, which is the foundation of the decision of the Divisional
Court in the present case.
The relevant authorities are few in number. In Bryan v. Robinson
[1960] 1 W.L.R. 506 it was held that persons can be annoyed by behaviour
which is not insulting behaviour. That which causes an annoyance or
a disturbance is not per se insulting behaviour. Reliance is placed on „
Jordan v. Burgoyne [1963] 2 Q.B. 744. It demonstrates that the words
of section 5 are strong words and must be given a confined meaning.
In that case it was said that the words must hit the man in question.
859
A.C. Cozens v. Brutus (H.L.(E.))
The New Zealand authorities are of some assistance on the construc-
A
tion of comparable behaviour. In Kinney v. Police [1971] N.Z.L.R. 924
there was a charge of disorderly behaviour under the provisions of the
Police Offences Act 1927. The case is of importance for two reasons
since it shows: (1) a common law legislature which has appreciated that
there is a distinction between offensive and disorderly behaviour and
threatening and insulting behaviour. (2) That disorderly behaviour is
B something less than insulting or threatening behaviour. This points to
the right approach for the construction of section 5 of the Act of 1936:
see also Melser v. Police [1967] N.Z.L.R. 437. Even if the Act of 1936
provided for disorderly conduct, it is questionable whether on the New
Zealand authorities the conduct in question would have come within it.
In conclusion, it would be wrong to stretch the existing criminal law
-, to cover matters of this kind. This is an area of the law where very
great questions of principle are involved relating to the freedom of
the subject and, therefore, it is a matter for Parliament after due delibera-
tion of all the questions involved. It is emphasised that insulting means
hitting at a person in his own personality. It is important to keep apart
the two limbs of section 5 which the Divisional Court have run together.
[Reference was also made to Ward v. Holman [1964] 2 Q.B. 580.]
D E. M. Hill for the respondent. 1. It is agreed that section 5 when
properly construed consists of two parts which must be kept separate.
2. The Divisional Court's test of insulting behaviour is too wide and if
applied would catch conduct which section 5 was never intended by
Parliament to catch. 3. The appellant's conduct on the occasion in question
amounted to insulting behaviour on any proper definition of that term.
E 4. The Act itself is apt to cover the acts of the appellant himself in the
circumstances pertaining here.
To constitute insulting behaviour, the behaviour in question must be
intended or likely to give offence not merely to offend. The Magistrates'
findings of fact here, amount to insulting behaviour within the section.
There are two elements which pertain to the concept of insulting behaviour:
1. Deliberate behaviour which is intended to give offence.
" 2. Behaviour which is broadly speaking contemptuous of or about those
to be offended.
Further, the occasion on which the behaviour or words were used is
a relevant factor in determining whether the behaviour in question is
insulting. Thus here to step on to the court and blow a whistle and stop
the play in progress before the spectators is to display contempt towards
G the players and those watching the game. The dictionary definitions of
" insult" show the element of giving deliberate offence in a contemptuous
manner: see Johnson's Dictionary (1830), p. 644; Richardson's Dictionary
(1836), p. 1130; Skeat's Etymological Dictionary, 4th ed. (1910), pp. 9, 303;
the Oxford Dictionary, vol. 5, p. 361; Chambers's Dictionary (1959), p.
551 and Webster's New International Dictionary, 3rd ed. (1966) p. 1173.
In all these definitions there is more than just attacking a person's dignity
but there is also the element of contempt towards him.
The appellant by interrupting play was contemptuous of those present
and was being deliberately offensive to them. It is emphasised that a
860
Cozens v. Brutus (H.L.(E.) ) [1973]
person is guilty of insulting behaviour if by his deliberate conduct he
shows a contemptuous disregard for and derides otliers because of their A
personality or because of their presence on the occasion in question: see
Wise v. Dunning [1902] 1 K.B. 167, which was a decision on section 149
of the Liverpool Improvement Act 1842, which incorporated the same
words as are to be found in section 54 (13) of the Metropolitan Police Act
1839, the precursor of section 5 of the Public Order Act 1936.
The House is invited to hold that as a matter oi law the facts found B
in the case stated not only are capable of amounting to insulting behaviour
by the appellant, but must in the circumstances amount to insulting
behaviour for no reasonable man could have held that the behaviour in
question was not insulting behaviour.
Bryan v. Robinson [1960] 1 W.L.R. 506 and Jordan v. Burgoyne [1963]
2 Q.B. 744 do not derogate from the above submissions. ,,
[Reference was also made to Vernon v. Paddon, The Times, February
12, 1972].
Finer Q.C. was not called upon to reply.

Their Lordships took time for consideration.

July 19, 1972. LORD REID. My Lords, the charge against the D
appellant is that on June 28, 1971, during the annual tournament at the
All England Lawn Tennis Club, Wimbledon, he used insulting behaviour
whereby a breach of the peace was likely to be occasioned, contrary to
section 5 of the Public Order Act 1936, as amended.
While a match was in progress on No. 2 Court he went on to the court,
blew a whistle and threw leaflets around. On the whistle being blown nine g
or ten others invaded the court with banners and placards. I shall assume
that they did this at the instigation of the appellant though that is not made
very clear in the case stated by the magistrates. Then the appellant sat
down and had to be forcibly removed by the police. The incident lasted
for two or three minutes. This is said to have been insulting behaviour.
It appears that the object of this demonstration was to protest against
the apartheid policy of the Government of South Africa, But it is not F
said that that government was insulted. The insult is said to have been
offered to or directed at the spectators.
The spectators at No. 2 Court were upset: they made loud shouts,
gesticulated and shook their fists and while the appellant was being
removed some showed hostility and attempted to strike him.
The magistrates came to the conclusion that the appellant's behaviour G
was not insulting within the terms of the offence alleged. They did not
consider the other points raised in argument but dismissed the information
without calling upon the appellant.
On a case stated a Divisional Court set aside the judgment of the
magistrates and remitted the case to them to continue the hearing of the
case. They certified as a point of law of general public importance [1972]
H
1 W.L.R. 484,488:
" whether conduct which evidences a disrespect for the rights of others
so that it is likely to cause their resentment or give rise to protests
861
A.C. Cozens v. Brutus (H.L.(E.)) Lord Reid
from them is insulting behaviour within the meaning of section 5 of
A
the Public Order Act 1936."
Section 5 is in these terms:
" Any person who in any public place or at any public meeting uses
threatening, abusive or insulting words or behaviour with intent to
provoke a breach of the peace or whereby a breach of the peace is
o likely to be occasioned, shall be guilty of an offence."
Subsequent amendments do not affect the question which we have to
consider.
It is not clear to me what precisely is the point of law which we have
to decide. The question in the case stated for the opinion of the court is
" Whether, on the above statement of facts, we came to a correct deter-
c mination and decision in point of law." This seems to assume that the
meaning of the word " insulting " in section 5 is a matter of law. And
the Divisional Court appear to have proceeded on that footing.
In my judgment that is not right. The meaning of an ordinary word
of the English language is not a question of law. The proper construction
of a statute is a question of law. If the context shows that a word is used
in an unusual sense the court will determine in other words what that
D unusual sense is. But here there is in my opinion no question of the word
" insulting " being used in any unusual sense. It appears to me, for reasons
which I shall give later, to be intended to have its ordinary meaning. It
is for the tribunal which decides the case to consider, not as law but as
fact, whether in the whole circumstances the words of the statute do or
do not as a matter of ordinary usage of the English language cover
or apply to the facts which have been proved. If it is alleged that the
E tribunal has reached a wrong decision then there can be a question of
law but only of a limited character. The question would normally be
whether their decision was unreasonable in the sense diat no tribunal
acquainted with the ordinary use of language could reasonably reach
that decision.
Were it otherwise we should reach an impossible position. When
p considering the meaning of a word one often goes to a dictionary. There
one finds other words set out. And if one wants to pursue the matter
and find the meaning of those other words the dictionary will give the
meaning of those other words in still further words which often include
the word for whose meaning one is searching.
No doubt the court could act as a dictionary. It could direct the
tribunal to take some word or phrase other than the word in the statute
G and consider whether that word or phrase applied to or covered the facts
proved. But we have been warned time and again not to substitute other
words for the words of a statute. And there is very good reason for that.
Few words have exact synonyms. The overtones are almost always
different.
Or the court could frame a definition. But then again the tribunal
H would be left with words to consider. No doubt a statute may contain
a definition—which incidentally often creates more problems than it
solves—but the purpose of a definition is to limit or modify the ordinary
meaning of a word and the court is not entitled to do that,
862
Lord Reid Cozens v. Brutus (H.L.(E.)) [1973]
So the question of law in this case must be whether it was unreason-
able to hold that the appellant's behaviour was not insulting. To that
question there could in my view be only one answei—No.
But as the Divisional Court [1972] 1 W.L.R. 484, have expressed
their view as to the meaning of " insulting " I must, I think, consider it.
It was said, at p. 487:
" The language of section 5, as amended, of the Public Order Act
1936, omitting words which do not matter for our present purpose, B
is: 'Any person who in any public place . . . uses . . . insulting . . .
behaviour, . . . with intent to provoke a breach of the peace or whereby
a breach of the peace is likely to be occasioned, shall be guilty of
an offence.' It therefore becomes necessary to consider the meaning
of the word ' insulting' in its context in that section. In my view it
is not necessary, and is probably undesirable, to try to frame an Q
exhaustive definition which will cover every possible set of facts that
may arise for consideration under this section. It is, as I think, quite
sufficient for the purpose of this case to say that behaviour which
affronts other people, and evidences a disrespect or contempt for their
rights, behaviour which reasonable persons would foresee is likely
to cause resentment or protest such as was aroused in this case, and I
rely particularly on the reaction of the crowd as set out in the case D
stated, is insulting for the purpose of this section."
I cannot agree with that. Parliament had to solve the difficult
question of how far freedom of speech or behaviour must be limited in the
general public interest. It would have been going much too far to pro-
hibit all speech or conduct likely to occasion a breach of the peace because
determined opponents may not shrink from organising or at least threatening E
a breach of the peace in order to silence a speaker whose views they
detest. Therefore vigorous and it may be distasteful or unmannerly speech
or behaviour is permitted so long as it does not go beyond any one of
three limits. It must not be threatening. It must not be abusive. It
must not be insulting. I see no reason why any of these should be
construed as having a specially wide or a specially narrow meaning. p
They are all limits easily recognisable by the ordinary man. Free speech
is not impaired by ruling them out. But before a man can be convicted
it must be clearly shown that one or more of them has been disregarded.
We were referred to a number of dictionary meanings of " insult" such
as treating with insolence or contempt or indignity or derision or dishonour
or offensive disrespect. Many things otherwise unobjectionable may be said
or done in an insulting way. There can be no definition. But an ordinary G
sensible man knows an insult when he sees or hears it,
Taking the passage which I have quoted, " affront"' is much too vague a
word to be helpful; there can often be disrespect without insult, and I do
not think that contempt for a person's rights as district from contempt of
the person himself would generally be held to be insulting. Moreover, there
are many grounds other than insult for feeling resentment or protesting. I JJ
do not agree that there can be conduct which is not insulting in the ordinary
sense of the word but which is " insulting for the purpose of this section."
If the view of the Divisional Court was mat in this section the word
863
A.C. Cozens v. Brutus (H.L.(E.)) Lord Reid
" insulting " has some special or unusually wide meaning, then I do not
agree. Parliament has given no indication that the word is to be given any
unusual meaning. Insulting means insulting and nothing else.
If I had to decide, which I do not, whether the appellant's conduct
insulted the spectators in this case, I would agree with the magistrates.
The spectators may have been very angry and justly so. The appellant's
conduct was deplorable. Probably it ought to be punishable. But I cannot
B see how it insulted the spectators.
I would allow the appeal with costs.
LORD MORRIS OF BORTH-Y-GEST. My Lords, the charge which was
brought against the appellant was that he " Did use insulting behaviour
whereby a breach of the peace was likely to be occasioned at the All
_ England Lawn Tennis Club, Church Road, Wimbledon, S.W.19 on June 28,
1971." Having found the facts the magistrates came to the conclusion
that the appellant's behaviour was not " insulting behaviour " within the
terms of the offence charged under section 5 of the Public Order Act
1936, as amended: it was therefore unnecessary for them to consider any
further matters. Under that section, provided other matters are proved,
a person will commit an offence if he uses threatening behaviour or if he
£) uses abusive behaviour or if he uses insulting behaviour. In the present
case the magistrates had to consider whether the appellant had used
insulting behaviour. The words " insulting behaviour" are words that
permit of ready comprehension. Having found the facts it was for the
magistrates applying rational judgment and common sense to reach a
decision. Manifestly they thought that however else the appellant's
behaviour might be characterised it was not to be described as insulting.
E
Having had the case of Bryan v. Robinson [1960] 1 W.L.R. 506 cited to
them, in which Lord Parker C.J. had pointed out that persons may be
annoyed by behaviour which is not insulting behaviour, the magistrates may
have thought that the appellant's behaviour was annoying or very annoying
but yet was not on that account to be held to have been insulting. The
magistrates may have considered that in most cases insulting behaviour is
P behaviour which insults some person or persons: they may have thought
that after the incident neither a spectator nor a player, however displeased
or annoyed he might have been, could sensibly have complained that he had
been " insulted."
In my view, the magistrates' decision was really a decision of fact just
as would be the decision of a jury if called upon to decide whether someone
had used insulting behaviour. The decision either of magistrates or of a
G jury could be attacked if there had been misdirection. In the present case
I can see no ground at all for suggesting that the magistrates had misdirected
themselves.
The decision of the magistrates could, in my view, only be reversed if
it is held that the facts as found show as a matter of law that the appellant's
behaviour was insulting. What the Divisional Court have done is to lay
jj down a definition of the words " insulting behaviour " and then to say that
the appellant's behaviour came within the definition. But the Act contains
no such definition and indeed no words of definition are needed. The words
of the section are clear and they convey of themselves a meaning which the
864
Lord Morris Cozens v. Brutus (H.L.(E.)) [1973]
x
of Borlh-y-Gcst
ordinary citizen can well understand. The suggested definition would
A
enlarge what Parliament has enacted, and it would do this in relation to a
criminal offence. It would lay down that behaviour which affronts other
people and evidences a disrespect or contempt for tlieir rights and which
reasonable people would foresee would be likely to cause resentment or
protest is insulting behaviour for the purposes of section 5, It may well be
that behaviour which is insulting will often be behaviour which shows a
disrespect or contempt for people's rights but it does not follow that when- g
ever there is disrespect or contempt for people's rights there must always
be insulting behaviour. Furthermore, there may be many manifestations
of behaviour which will cause resentment or protest without being insulting.
In the submissions made on behalf of the respondent it was acknow-
ledged that the definition laid down by the Divisional Court was too wide
and that it would embrace conduct going beyond what Parliament had
intended. It was not supported. An alternative definition was propounded. C
It was suggested that in the concept of insulting behaviour there are the two
elements (a) that it is deliberate behaviour which is intended or is likely to
give offence and (b) that it is behaviour which is contemptuous of or about
those who are to be offended. My Lords, I find it unnecessary and indeed
undesirable to compose a definition of a word which is in general use and
which presents no difficulty of application or understanding. If the facts as ^
found by the magistrates (which I do not recount because they are recorded
in the case stated) were put to a juryman who was asked to say whether,
in his view, they constituted insulting behaviour I would think it probable
that his answer would be the same as that given by the magistrates. But
whether this be so or not I find it impossible to sa)' that on the facts as
they found them the magistrates were obliged as a matter of law to find
that the behaviour was insulting. E
For the reasons which I have given I would allow the appeal and set
aside the order made by the Divisional Court.

VISCOUNT DILHORNE. My Lords, after the magistrates at Wimbledon


had dismissed the information laid against the appelant without calling
on him to answer the prosecution's case, they were asked to state a case.
They did so and in paragraph 7 thereof said: ^
"Having considered the evidence and the authorities cited to us, we
came to the conclusion that the respondent's " (the present appellant's)
" behaviour was not insulting within the terms of the offence alleged
against him."
and in paragraph 8 that ^
" The question for the opinion of the High Court is whether, on the
above statement of facts, we came to a correct determination and
decision in point of law."
The case stated did not state precisely what was the question of law on
which the opinion of the High Court was sought. II: may be because the
magistrates found some difficulty in formulating it. The Divisional Court, JJ
however, treated the case as raising the question of the meaning to be
given to the word " insulting " in the expression " insulting behaviour " in
section 5 of the Public Order Act 1936.
865
A.C. Cozens v. Brutus (H.L.(E.)) Viscount Dilhorne
The Divisional Court allowed the appeal but, while refusing leave to
A appeal to this House, certified that a point of law of general public importance
was involved, namely [1972] 1 W.L.R. 484, 488:
" whether conduct which evidences a disrespect for the rights of
others so that it is likely to cause their resentment or give rise to
protests from them is insulting behaviour within the meaning of
section 5 of the Public Order Act 1936."
B
The appellant now appeals with the leave of this House.
In the Divisional Court [1972] 1 W.L.R. 484 in the course of his
judgment, with which the other members of the court agreed, Melford
Stevenson J. said, at p. 487:
"behaviour which affronts other people, and evidences a disrespect
r or contempt for their rights, behaviour which reasonable persons
would foresee is likely to cause resentment or protest such as was
aroused in this case, and I rely particularly on the reaction of the
crowd as set out in the case stated, is insulting for the purpose of this
section."
I do not think that this is right. The Public Order Act 1936, by
-. section 5, made it an offence for a person to use threatening, abusive or
insulting behaviour whereby a breach of the peace is likely to be occasioned.
It does not make any kind of behaviour which is likely to lead to a breach of
the peace an offence. Behaviour which evidences a disrespect or contempt
for the rights of others does not of itself establish that that behaviour
was threatening, abusive or insulting. Such behaviour may be very annoying
to those who see it and cause resentment and protests but it does not
E suffice to show that the behaviour was annoying and did annoy, for a
person can be guilty of annoying behaviour without that behaviour being
insulting. And what must be established to justify conviction of the offence
is not that the behaviour was annoying but that it was threatening, abusive
or insulting.
The reaction of those who saw the behaviour may be relevant to the
p question whether a breach of the peace was likely to be occasioned but it
is not, in my opinion, relevant to the question, was the behaviour
threatening, abusive or insulting.
The Act does not define the meaning to be given to the word " insulting "
and the cases cited in this House, the Divisional Court and before the
magistrates do not say or suggest that it should be given any special
meaning. Unless the context otherwise requires, words in a statute have to
be given their ordinary natural meaning and there is in this Act, in my
opinion, nothing to indicate or suggest that the word " insulting " should
be given any other than its ordinary natural meaning.
The magistrates had two questions to decide; first, was the appellant's
behaviour insulting and, secondly, if so, was it likely to occasion a breach
of the peace. Both were questions of fact for them to decide. In consider-
" ing the first, it was relevant for them to consider whether the behaviour was
such as to indicate an intention to insult anyone, and if so whom; and if
the magistrates in this case did so, they may well have concluded that the
A.C. 1973—33
866
Viscount Dilborne Cozens v. Brutus (H.L.(E.)) [1973]
appellant's behaviour did not evince any intention to insult either players
or spectators, and so could not properly be regarded as insulting.
In my opinion, the answer to the question certified by the Divisional
Court is in the negative, for proof of the matters therein referred to does
not suffice to show or tend to show that the behaviour was insulting and
the decision of the Divisional Court was wrong.
I would therefore allow the appeal with costs.
LORD DIPLOCK. My Lords, I agree with your Lordships that this
appeal should be allowed.

LORD KILBRANDON. My Lords, I agree that this appeal should be


allowed. At the close of the prosecution evidence, the magistrates found
no case to answer, and gave their decision in the following terms:
" Having considered the evidence and the authorities cited to us, we C
came to the conclusion that the respondent's behaviour was not insulting
within the terms of the offence alleged against him. ' Insulting
behaviour' being an essential element of an offence within section 5
of the Public Order Act, 1936, we did not consider the other points
raised before us and accordingly dismissed the information without
calling upon the respondent." D
The authorities were Bryan v. Robinson [1960] 1 W.L.R. 506, Jordan v.
Burgoyne [1963] 2 Q.B. 744 and Cooper V. Shield [1971] 2 Q,B. 334.
In the first, a case of alleged insulting behaviour, Lord Parker C.J.
had laid it down, at p. 509, that " somebody can be annoyed by
behaviour which is not insulting behaviour." We must assume that the
magistrates weighed the evidence against this ruling, and appreciated accord- E
ingly that, while the spectators may have been annoyed, that did not
necessarily mean that they had been insulted, The second relates to
insulting words which might have been expected to, and did, cause a riot
to break out at a public meeting; this could not have assisted the magistrates
or affected their decision. The third is concerned w:ith whether the locus
of the incident was a public place, and the present point did not arise. „
No authority was cited to the magistrates, or indeed before this House,
which declares that any positive test is available by which insulting
behaviour can be recognised as such; nevertheless, we were in effect invited
to apply some such test. We were asked to hold that, accepting as facts
the incidents described in the stated case, it followsd as matter of law
that the conduct of the accused was insulting and therefore, in the circum-
stances, criminal. This seem to me to be impossible. It may well be G
that if the magistrates had found the appellant's behaviour to have been
insulting, their decision would not have been challengeable, but that only
means that their decision, whichever way it went, must have been a decision
on a question of fact; no question of law can be spelled out of their
evaluation of behaviour which, in the absence of a specific finding that it
was of an insulting character, is capable of more than one interpretation. „
The drawing of inferences from behaviour is a fact-finding process. It
would be unwise, in my opinion, to attempt to lay down any positive rules
for the recognition of insulting behaviour as such, since the circumstances
867
A.C. Cozens v. Brutus (H.L.(E.)) Lord Kilbrandon
in which the application of the rules would be called for are almost
"■ infinitely variable; the most that can be done is to lay down limits, as was
done in Bryan v. Robinson [1960] 1 W.L.R. 506, in order to ensure
that the statute is not interpreted more widely than its terms will bear.
I did not myself find the quotation of dictionary definitions helpful, as
it might perhaps have been had the question been whether, the magistrates
having convicted, there is any accepted meaning of the word " insulting "
B which they might be said legitimately to have adopted in coming to their
conclusion. But " insulting " is an ordinary uncomplicated English word.
Boswell defends Dr. Johnson, to whose work we were referred, against a
charge of obscurity in his definitions, by quoting from the preface to the
dictionary:
" To explain, requires the use of terms less abstruse than that which
Q is to be explained, and such terms cannot always be found. . . . The
easiest word, whatever it may be, can never be translated into one
more easy."
One felt the force of this upon being offered as exegetical substitutions for
the word "insult" such words as "insolence" or "affront." All three
words are as much, or as little, in need of interpretation.
j) It was conceded before us that the question which has been submitted to
us as involving a point of law of public importance could not be answered
in the affirmative. To do so would be to declare that, among other
manifestations, " conduct which evidences a disrespect for the rights of
others so that it is likely to cause their resentment" must as matter of law
be held to be insulting, and punishable under the Public Order Act 1936.
A common example might be, an assertion, by throwing down a gate, of a
E public right of way. This would be showing disrespect of a right of
property, and would certainly be resented, but the behaviour might in
certain circumstances be in fact lawful. I would accordingly allow
this appeal.
Appeal allowed.
p Solicitors: B. M. Bimberg & Co.; Metropolitan Police Solicitor.

J. A. G.
1833
[2013] 1 WLR Chambers v DPP (DC)

A Queens Bench Division

*Chambers v Director of Public Prosecutions


[2012] EWHC 2157 (Admin)
2012 June 27; Lord Judge CJ, Owen, Gri–th Williams JJ
B July 27

Crime  Message of menacing character  Sending by means of public electronic


communications network  Defendant posting words on Internet social
network site apparently threatening to blow up airport  Defendant intending
posting as joke  Whether message of menacing character  Whether
necessary that message create fear or apprehension in those to whom it was
C communicated or who might reasonably be expected to see it  Whether
necessary to prove defendant intended message to be menacing 
Communications Act 2003 (c 21), s 127(1)(a)

Following an alert on the Internet social network, Twitter, the defendant became
aware that, due to adverse weather conditions, an airport from which he was due to
travel nine days later was closed. He responded by posting several tweets on
Twitter in his own name, including the following: Crap! Robin Hood Airport is
D
closed. Youve got a week and a bit to get your shit together otherwise I am blowing
the airport sky high!! None of the defendants followers who read the posting was
alarmed by it at the time. Some ve days after its posting the defendants tweet was
read by the duty manager responsible for security at the airport on a general Internet
search for tweets relating to the airport. Though not believed to be a credible threat
the matter was reported to the police. In interview the defendant asserted that the
tweet was a joke and not intended to be menacing. The defendant was charged with
E sending by a public electronic communications network a message of a menacing
character, contrary to section 127(1)(a) of the Communications Act 20031. He was
convicted in a magistrates court and, on appeal, the Crown Court upheld
the conviction, being satised that the message was menacing per se and that the
defendant was, at the very least, aware that his message was of a menacing character.
On the defendants appeal by way of case stated
Held, allowing the appeal, that at the time when a tweet was posted on the
F Twitter Internet social network it was a message sent by a public electronic
communications network for the purposes of section 127(1) of the Communications
Act 2003, even if it was found by means of a subsequent search of published content;
that a message which did not create fear or apprehension in those to whom it was
communicated, or who might reasonably be expected to see it, was not of a
menacing character within the meaning of section 127(1)(a); that before concluding
that a message was criminal on the basis that it represented a menace, its precise terms
G and any inferences to be drawn from its precise terms had to be examined in the
context in and the means by which the message had beens sent; and that, on an
objective assessment, the decision of the Crown Court that the tweet constituted or
included a message of a menacing character had not been open to it (post, paras 24,
25, 30, 31, 34).
Director of Public Prosecutions v Collins [2006] 1 WLR 2223, HL(E) applied.
Per curiam. The mental element of the o›ence contrary to section 127(1)(a) of the
H 2003 Act with which the defendant was charged is satised if the o›ender is proved
to have intended that the message should be of a menacing character (the most
serious form of the o›ence) or alternatively, if he is proved to have been aware of or
to have recognised the risk at the time of sending the message that it may create fear
1
Communications Act 2003, s 127: see post, para 2.

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1834
Chambers v DPP (DC) [2013] 1 WLR

or apprehension in any reasonable member of the public who reads or sees it. Even A
expressed in those terms, the mental element of the o›ence is directed exclusively to
the state of the mind of the o›ender, and if he may have intended the message as a
joke, even if a poor joke in bad taste, it is unlikely that the requisite mens rea will be
established (post, para 38).

The following case is referred to in the judgment of the court:


Director of Public Prosecutions v Collins [2005] EWHC 1308 (Admin); [2006] B
1 WLR 308; [2005] 3 All ER 326; [2005] 2 Cr App R 652, DC; [2006] UKHL 40;
[2006] 1 WLR 2223; [2006] 4 All ER 602; [2007] 1 Cr App R 49, HL(E)

The following additional cases were referred to in argument:


Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin); 175 JP 190,
DC
Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin); [2008] C
1 WLR 276; [2007] 2 All ER 1012; [2007] 2 Cr App R 43, DC
Cozens v Brutus [1973] AC 854; [1972] 3 WLR 521; [1972] 2 All ER 1297;
56 Cr App R 799, HL(E)
R v Boyle [1914] 3 KB 339; 10 Cr App R 180, CCA
R v Caldwell [1982] AC 341; [1981] 2 WLR 509; [1981] 1 All ER 961; 73 Cr App R
13, HL(E)
R v Clear [1968] 1 QB 670; [1968] 2 WLR 122; [1968] 1 All ER 74; 52 Cr App R 58, D
CA
R v John Rae (1998) 104 ACR 348
Sweet v Parsley [1970] AC 132; [1969] 2 WLR 470; [1969] 1 All ER 347;
53 Cr App R 221, HL(E)

CASE STATED by the Crown Court at Doncaster


The defendant, Paul Chambers, was convicted in Doncaster Magistrates E
Court of sending by a public electronic communications network a
message of a menacing character, contrary to section 127(1)(a) of the
Communications Act 2003. The defendant appealed. The Crown Court at
Doncaster (Judge Davies and justices) dismissed the appeal on 3 March
2011. The defendant appealed by way of case stated. The questions posed
by the Crown Court for the opinion of the High Court are set out, post, F
para 19.
The facts are stated in the judgment of the court.

John Cooper QC and Sarah Przybylska (instructed by Preiskel &


Co LLP) for the defendant.
Robert Smith QC (instructed by Director of Public Prosecutions) for the
prosecution. G

The court took time for consideration.

27 July 2012. LORD JUDGE CJ handed down the following judgment of


the court.

Introduction H
1 This is an appeal by way of case stated from the decision of the Crown
Court at Doncaster (Judge Davies and justices) on 3 March 2011 upholding
the conviction of the defendant in the magistrates court for sending by a
public electronic communication network a message of a menacing

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[2013] 1 WLR Chambers v DPP (DC)

A character, contrary to section 127(1)(a)(3) of the Communications Act


2003.
2 Section 127 of the 2003 Act addresses the problem of the unlawful use
of the public electronic communications network. It provides:
(1) A person is guilty of an o›ence if he (a) sends by means of a
public electronic communications network a message or other matter that
B is grossly o›ensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an o›ence if, for the purpose of causing
annoyance, inconvenience or needless anxiety to another, he (a) sends
by means of a public electronic communications network, a message that
he knows to be false, (b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
C
(3) A person guilty of an o›ence under this section shall be liable, on
summary conviction, to imprisonment for a term not exceeding six
months or to a ne not exceeding level 5 on the standard scale or to both.
3 Section 32 of the 2003 Act (as amended by regulation 2(1) of and
paragraph 9 of Schedule 1 to the Electronic Communications and Wireless
Telegraphy Regulations 2011 (SI 2011/1210)) provides:
D
(1) . . . electronic communications network means (a) a transmission
system for the conveyance, by the use of electrical, magnetic or
electro-magnetic energy, of signals of any description; and (b) such
of the following as are used, by the persons providing the system and
in association with it, for the conveyance of the signals (i) apparatus
E
comprised in the system; (ii) apparatus used for the switching or routing of
the signal; (iii) software and stored data . . .
(2) In this Act electronic communications service means a service
consisting in, or having as its principal feature, the conveyance by means
of an electronic communications network of signals, except in so far as it
is a content service.
(4) In this Act (a) references to the provision of an electronic
F communications network include references to its establishment,
maintenance or operation . . .
(7) In subsection (2) a content service means so much of any service
as consists in one or both of the following (a) the provision of material
with a view to its being comprised in signals conveyed by means of an
electronic communications network; (b) the exercise of editorial control
G
over the contents of signals conveyed by means of such a network.
4 Section 151(1) is an interpretation section. It provides:
In this Chapter . . . public electronic communications network
means an electronic communications network provided wholly or mainly
for the purpose of making electronic communications services available
to members of the public; public electronic communications service
H means any electronic communications service that is provided so as to be
available for use by members of the public . . .

The facts
5 We take the essential facts from the case stated.

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Chambers v DPP (DC) [2013] 1 WLR

6 The defendant was 26 years old at the time with which the court is A
concerned, a well educated young man of previous good character, holding a
responsible job as an administration and nance supervisor.
7 The defendant was, and is, a registered user of the Twitter social
networking platform, owned and operated by Twitter Inc, an American
corporation, typically accessed by a registered user by means of the Internet.
Twitter was not invented until 2006, that is after the enactment of the B
2003 Act, but, as is the way with modern means of communication, its daily
use by millions of people throughout the world has rocketed.
8 Each registered user adopts an unique user name or Twitter handle.
The defendant used his own name for this purpose and was registered as
@PaulJChambers, with a personal photograph as his account picture.
9 In very brief terms Twitter enables its users to post messages
(of no more than 140 characters) on the Twitter Internet and other sites. C
Such messages are called tweets. Tweets include expressions of opinion,
assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions
of what the user is or has been doing, or where he has been, or intends to go.
E›ectively it may communicate any information at all that the user wishes to
send, and for some users, at any rate, it represents no more and no less than
conversation without speech. D
10 Those who use Twitter can be followed by other users and
Twitter users often enter into conversations or dialogues with other
Twitter users. Depending on how an user posts his tweets, they can
become available for others to read. A public time line of an user shows
the most recent tweets. Unless they are addressed as a direct message to
another Twitter user or users, in which case the message will only be seen
E
by the user posting the tweet, and the specic user or users to whom it is
addressed, the followers of a Twitter user are able to access his or her
messages. Accordingly most tweets remain visible to the user and his/her
followers for a short while, until they are replaced by more recently posted
tweets. As every Twitter user appreciates or should appreciate, it is
possible for non-followers to access these public time lines and they, too,
can then read the messages. It is also possible for non-users to use the F
Twitter search facility to nd tweets of possible interest to them.
11 Using Twitter the defendant met another user of Twitter,
identied as Crazycolours, online. She is a woman who lives in
Northern Ireland. They started communicating using Twitter, and a
romance developed. The defendant was due to y to Belfast from Doncaster
Robin Hood Airport to meet Crazycolours on 15 January 2010. G
12 On 6 January 2010, following an alert on Twitter, the defendant
became aware of problems at Doncaster Robin Hood Airport, due to
adverse weather conditions. He and Crazycolours had a dialogue on
Twitter. Two messages were referred to in the Crown Court. They were:
@Crazycolours: I was thinking that if it does then I had decided to
resort to terrorism. H
@Crazycolours: Thats the plan! I am sure the pilots will be expecting
me to demand a more exotic location than NI.
In context, this seems to have been a reference to the possibility of the airport
closing, but the picture was incomplete because no reply from Crazycolours

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[2013] 1 WLR Chambers v DPP (DC)

A was produced. Some two hours later, when he heard that the airport had
closed, he posted the following message:
Crap! Robin Hood Airport is closed. Youve got a week and a bit to
get your shit together otherwise I am blowing the airport sky high!!
The message was posted onto the public time line, which meant that it was
available to be read by some 600, or so, of the followers of his Twitter
B
postings.
13 There was no evidence before the Crown Court to suggest that any of
the followers of the defendants tweet, or indeed anyone else who may
have seen the tweet posted on the defendants time line, found it to be of a
menacing character or, at a time when the threat of terrorism is real, even
minimally alarming. In fact nothing was done about it by anyone until
C 11 January 2010, some ve days later when the duty manager responsible
for security at Robin Hood Airport, while o› duty at home, found it.
Mr Du–eld did not see this tweet on the defendants time line, and it was
never sent to him or to the airport. Rather he was at home searching
generally for any tweets which referred to Robin Hood Airport. In cross-
examination he said that he did not know whether the tweet was a joke or
D not, but as even a joke could cause major disruption it had to be investigated.
Accordingly he referred the tweet to his manager, Mr Armson.
Mr Armson was responsible for deciding whether any perceived threat to the
airport should be graded as credible or non-credible. If credible, it
was to be referred immediately to the Ministry of Defence, but if
non-credible, as a matter of standard practice it was to be reported to the
airport police. Mr Armson examined the defendants tweet. He regarded
E it as non-credible, not least because it featured the defendants name and,
as he noted, the defendant was due to y from the airport in the near future.
Nevertheless in accordance with airport procedure he passed this tweet to
the airport police. The airport police themselves took no action, presumably
for exactly the same reason, but they decided to refer the matter on to the
South Yorkshire police.
F 14 The South Yorkshire police arrested the defendant, while he was at
work, two days later, on 13 January 2010 on suspicion of involvement
in a bomb hoax. It was now seven days since the o›ending message
was tweeted. The defendant was interviewed under caution. When
interviewed, and indeed in his evidence, the defendant repeatedly asserted
that this tweet was a joke or meant to be a joke and not intended to be
menacing. He said that he did not see any risk at all that it would be
G regarded as menacing, and that if he had, he would not have posted it.
In interview he was asked whether some people might get a bit jumpy and
responded yah. Hmm mmm.
15 On 10 February 2010, when the police investigation was completed,
one of the investigating o–cers recorded the following observation on the
South Yorkshire Police Crime Management System:
H
Male detained re making threats to Doncaster Robin Hood Airport.
The male in question has been bailed and his phone/computer has been
seizedthere is no evidence at this stage to suggest that there is anything
other than a foolish comment posted on Twitter as a joke for only his
close friends to see.

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Chambers v DPP (DC) [2013] 1 WLR

16 The police sought the advice of the Crown Prosecution Service. As a A


result the defendant was charged with the o›ence of which he now stands
convicted.
17 On the basis of these facts the Crown Court was satised that the
message in question was menacing per se. The court took the view that
an ordinary person seeing the tweet would see it in that way and be
alarmed. The airport sta› did see it and were su–ciently concerned to
B
report it.
18 The Crown Court went on to hold that the required mens rea . . . is
that the person sending the message must have intended the message to be
menacing, or be aware that it might be taken to be so . . . The court was
satised that the defendant was, at the very least, aware that his message was
of a menacing character.
19 The Crown Court posed the following very wide ranging issues for C
the decision of the High Court:
The questions for the High Court
(1) In order to prove that a message is of a menacing character
within the meaning of section 127(1)(a) [of the 2003 Act] (read
according to conventional canons of construction or with the benet of
article 10 [of the Convention for the Protection of Human Rights and D
Fundamental Freedoms] and section 3 of the Human Rights Act 1998) is
the prosecution required to prove, as part of the actus reus of the o›ence,
that the person sending the message intended, to create a fear in or
through the recipient (per Sedley LJ in Director of Public Prosecutions v
Collins [2006] 1 WLR 308) or, were we correct to conclude that the
question whether a message if of a menacing character is an objective E
question of fact for the court to determine?
1(a) In order to prove that a message is of a menacing character
within the meaning of section 127(1)(a) (read according to conventional
canons of construction or with the benet of article 10 [of the
Convention] and section 3 of the [1998 Act]), is the prosecution required
to prove that the person sending the message intended to create a fear in
or through the recipient (Sedley LJ, in Collinss case, having dened a F
menacing message as a message that conveys a threat . . . which seeks to
create a fear in or through the recipient that something unpleasant is
likely to happen) or were we correct to conclude that the question of
whether a message is of a menacing character is an objective question
of fact for the court to determine applying the standards of an open and
just society and taking account of the words, context and all relevant G
circumstances?
1(b) Is the actus reus of the o›ence (Lord Bingham of Cornhill in
Collinss case [2006] 1 WLR 2223), the sending of a message of the
proscribed character by the dened means, as we found, or does the actus
reus include a requirement that the person sending the message intended
the message to create a fear in or through the recipient?
H
(2) What is the mens rea for an o›ence of sending a message
of menacing character contrary to section 127(1)(a)? In particular:
(a) Is section 127(1)(a) (read according to conventional canons of
construction or with the benet of article 10 [of the Convention] and
section 3 of the [1998 Act]) a crime of specic intent? (b) Is the

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[2013] 1 WLR Chambers v DPP (DC)

A prosecution required to prove as part of the mens rea of the o›ence that
the person sending the message intended to put another person in fear?
(c) If the answer to (b) is no, is it su–cient for the prosecution to prove
that the person sending the message realised that his message may or
might be taken as menacing, or must the prosecution prove that he
realised that it would be taken as menacing by a person of reasonable
rmness aware of all the relevant circumstances?
B
(3) Did the court act lawfully (within the meaning of section 6 of the
Human Rights Act 1998) in convicting and sentencing the [defendant] as
it did? In particular: (a) Did the [defendants] act in posting the message
engage his right to freedom of expression under article 10.1 [of the
Convention]? (b) If so, did his conviction and sentence amount to
an interference with the exercise of that right? (c) If so, was that
C interference necessary in a democratic society for one of the reasons listed
in article 10.2?
(4) In all the circumstances, was the court correct to conclude that the
message sent by the [defendant] crossed the threshold of gravity necessary
to constitute a message of a menacing character so as to amount to a
criminal o›ence within the meaning of section 127(1)(a)(3) and was the
D
court correct to convict the [defendant] on the evidence and sentence him
as it did?
20 We propose only to deal with the issues necessary to decide this
appeal.

Public electronic communications network


E 21 It was agreed before the magistrates that the defendants message
was sent using the Twitter social networking site which fell within the
description of a public electronic communications network. It was,
however, a ground of appeal to the Crown Court that the message was not
sent by a public electronic communications network. By the date of the
hearing in the Crown Court there was a formal admission in these terms:
F Twitter is a privately owned company which operates via a public
electronic communications network. Messages which are posted on the
public timeline of Twitter are accessible to all those who have access to
the Internet.
Nevertheless Mr John Cooper QC on behalf of the defendant sought to argue
that the defendants message was not sent by means of a public electronic
G communications network. He submitted that this was a tweet found by
means of a subsequent search, and so should be treated as no more than
content created and published on a social media platform rather
than a message sent by means of a communications network. It would,
he submitted, be a dangerous development to extend the ambit of
section 127(1) of the 2003 Act to Twitter. He relied on the words used by
Lord Bingham of Cornhill in the context of grossly o›ensive telephone
H
messages under consideration in Director of Public Prosecution v Collins
[2006] 1 WLR 2223 that the section addressed a service provided and
funding by the public for the benet of the public. Therefore, he contended,
the section was primarily concerned with such messages sent by the
telephone system and so with voice telephony.

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Chambers v DPP (DC) [2013] 1 WLR

22 When we examined the issue in argument, Mr Cooper accepted that A


a message on public Twitter is accessible to all who have access to the
Internet, and therefore, by inference, to the public, or to that vast section of
the public which included anyone who chose to access a timeline consisting
of any of the posted key words by use of a search engine.
23 In her judgment in the Crown Court Judge Davies addressed this
issue when rejecting a submission that there was no case for the defendant
B
to answer. She said:
The Twitter website although privately owned cannot, as we
understand it, operate save through the Internet, which is plainly a public
electronic network provided for the public and paid for by the public
through the various service providers we are all familiar with . . . The
Internet is widely available to the public and funded by the public and
C
without it facilities such as Twitter would not exist. The fact that it is a
private company in our view is irrelevant; the mechanism by which it was
sent was a public electronic network and within the statutory
denition . . . Twitter, as we all know is widely used by individuals and
organisations to disseminate and receive information. In our judgment, it
is inconceivable that grossly o›ensive, indecent, obscene or menacing
messages sent in this way would not be potentially unlawful. D
24 We agree with this approach. As Mr Robert Smith QC submitted on
behalf of the Crown, the potential recipients of the message were the public
as a whole, consisting of all sections of society. It is immaterial that the
defendant may have intended only that his message should be read by a
limited class of people, that is, his followers, who, knowing him, would be
neither fearful nor apprehensive when they read it. E
25 In our judgment, whether one reads the tweet at a time when it
was read as content rather than message, at the time when it was posted
it was indeed a message sent by an electronic communications service for
the purposes of section 127(1) of the 2003 Act. Accordingly Twitter falls
within its ambit. We can now come to the heart of the case.

Actus reus F

26 This is the rst occasion when this court has been required to address
the ingredients of the o›ence created by section 127(1) of the 2003 Act in the
context of messages of a menacing character. As we have seen, however, the
section has been considered in the context of grossly o›ensive messages in
Director of Public Prosecutions v Collins [2006] 1 WLR 2223.
27 It is perhaps di–cult for anyone nowadays to remember the time G
when the telephone system was at the forefront of communications
technology of which Twitter is a modern example. Nevertheless as long
ago as the Post O–ce (Amendment) Act 1935, section 10(2)(a) introduced a
prohibition against the misuse of the telephone to communicate indecent,
obscene or menacing messages, and because of the limited technology
available at the time, these messages would largely be communicated to a
H
single, often deliberately targeted recipient like telephone operators, who
were subjected to indecent, obscene or menacing messages. Unsurprisingly,
no one thought that was appropriate and statutory prohibitions against
such messages were accordingly introduced. Section 127(1) of the Act has
simply updated the protection to be provided from the misuse of technology.

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[2013] 1 WLR Chambers v DPP (DC)

A This once took the form of a telephone system and has now advanced to the
present electric communications networks which, notwithstanding that
Twitter was not invented at the date when the 2003 Act came into force,
includes messages of the proscribed description sent by Twitter.
28 The 2003 Act did not create some newly minted interference with
the rst of President Roosevelts essential freedomsfreedom of speech and
expression. Satirical, or iconoclastic, or rude comment, the expression of
B
unpopular or unfashionable opinion about serious or trivial matters, banter
or humour, even if distasteful to some or painful to those subjected to it
should and no doubt will continue at their customary level, quite
undiminished by this legislation. Given the submissions by Mr Cooper, we
should perhaps add that for those who have the inclination to use Twitter
for the purpose, Shakespeare can be quoted unbowdlerised, and with
C Albany, at the end of King Lear, they are free to speak not what they ought
to say, but what they feel.
29 It is elementary, and unsurprisingly there was no dispute before us,
that the o›ence of which the defendant was convicted cannot be proved
unless the content of the message was of a menacing character. Given that
there is disappointingly little coherence in English laws approach to threat
o›ences (Smith & Hogans Criminal Law, 13th ed (2011), p 951) we do
D
not think that an analysis of the numerous other o›ences based on threats,
including blackmail, takes the interpretation of this statutory provision any
further. We were told that the word menace is dened in the Shorter
Oxford English Dictionary as a thing threatening danger or catastrophe; a
dangerous or obnoxious thing or person; a great inconvenience, and that as
an intransitive verb, to menace was to utter menaces; be threatening.
E Mr Smith submitted that no more, and no less, was needed than the
application of ordinary language to the context in which any particular
message was expressed and to all the relevant circumstances. Mr Cooper
suggested that for a message to be of a menacing character it must, on an
objective assessment, contain a threat of such a nature and extent that the
mind of an ordinary person of normal stability and courage might be
inuenced or made apprehensive. Our attention was drawn to Collinss case
F
[2006] 1 WLR 308, in the Divisional Court. While considering the meaning
to be given to grossly o›ensive within the section, Sedley LJ identied
the four di›erent classes of message proscribed by section 127(1)(a). In the
context of a menacing message he observed: fairly plainly, is a message
which conveys a threatin other words, which seeks to create a fear in or
through the recipient that something unpleasant is going to happen.
G 30 The attraction of the argument, implicit in the development of
Mr Coopers submission, that it is a necessary requirement of this o›ence
that the message must be credible as an immediate threat to the mind of an
ordinary person of normal stability and courage does not quite penetrate to
the heart of the problem. The telephone operator in the 1930s and 1940s
may not have believed that the person using the telephone to threaten
violence would or could implement the threat, but that would not extinguish
H
its menacing character. After all a message which cannot or is unlikely to be
implemented may nevertheless create a sense of apprehension or fear in the
person who receives or reads it. However unless it does so, it is di–cult to
see how it can sensibly be described as a message of a menacing character.
So, if the person or persons who receive or read it, or may reasonably be

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Chambers v DPP (DC) [2013] 1 WLR

expected to receive, or read it, would brush it aside as a silly joke, or a joke in A
bad taste, or empty bombastic or ridiculous banter, then it would be a
contradiction in terms to describe it as a message of a menacing character.
In short, a message which does not create fear or apprehension in those to
whom it is communicated, or who may reasonably be expected to see it,
falls outside this provision, for the very simple reason that the message
lacks menace.
B
31 Before concluding that a message is criminal on the basis that it
represents a menace, its precise terms, and any inferences to be drawn from
its precise terms, need to be examined in the context in and the means by
which the message was sent. The Crown Court was understandably
concerned that this message was sent at a time when, as we all know, there is
public concern about acts of terrorism and the continuing threat to the
security of the country from possible further terrorist attacks. That is plainly C
relevant to context, but the o›ence is not directed to the inconvenience
which may be caused by the message. In any event, the more one reects on
it, the clearer it becomes that this message did not represent a terrorist
threat, or indeed any other form of threat. It was posted on Twitter for
widespread reading, a conversation piece for the defendants followers,
drawing attention to himself and his predicament. Much more signicantly,
D
although it purports to address you, meaning those responsible for the
airport, it was not sent to anyone at the airport or anyone responsible for
airport security, or indeed any form of public security. The grievance
addressed by the message is that the airport is closed when the writer wants
it to be open. The language and punctuation are inconsistent with the
writer intending it to be or to be taken as a serious warning. Moreover, as
Mr Armson noted, it is unusual for a threat of a terrorist nature to invite the E
person making it to ready identied, as this message did. Finally, although
we are accustomed to very brief messages by terrorists to indicate that a
bomb or explosive device has been put in place and will detonate shortly,
it is di–cult to image a serious threat in which warning of it is given to a
large number of tweet followers in ample time for the threat to be reported
and extinguished.
F
32 It seems to us unsurprising, but not irrelevant, that none of those
who read the message during the rst days after it appeared thought
anything of it. In our view, the Crown Court read too much into the
observation of Lord Bingham in his judgment in the House of Lords that the
criminality of the sender cannot depend upon whether a message is received
by A or by As reaction. Lord Bingham was saying no more than that a
message proved by an objective assessment, applying the standards of an G
open and multi-racial society to be of a prescribed kind, does not cease to be
so just because it was not received or because the person who received it was
not, in the context of the present prosecution, menaced. The e›ect of the
message on those who read it is not excluded from the consideration.
Among the many followers who would have read the defendants tweet
there would surely have been some who would have reported such a threat if
H
any one of them thought it was to be taken even half seriously. It is not, of
course, a requirement of this o›ence that the threat should immediately have
been reported to the police, but given the nature of the threat, namely, that
an airport would be blown up, it would be surprising if the reasonable
member of the public of normal fortitude, alert to the risks of terrorism faced

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[2013] 1 WLR Chambers v DPP (DC)

A by our society, would have chosen to ignore it. More important, because
they would have been quite uninuenced by their knowledge of the
defendant deduced from his previous messages, the two gentlemen
responsible for the safety of the airport showed no anxiety or urgency in
dealing with it. It was treated and addressed as if it was not a credible threat.
The airport police took no action. No evidence was provided to suggest that
even minimal consequential protective measures were taken at the airport,
B
or that the level of perceived threat was heightened. Indeed,
notwithstanding the nature of the threat, we can detect no urgent response
to it. Police action was not exactly hurried. After the investigation, the
South Yorkshire Police concluded that the defendant presented no threat.
Although this conclusion reected the outcome of the investigation rather
than the immediate reaction to the text of the message, it was in fact entirely
C consistent with the attitude and approach of those who had seen the message
before the investigation began.
33 We are of course well aware that the Crown Court concluded, as a
matter of fact, that the message sent by the defendant was of a menacing
character. Proper respect must be paid to such a nding. However, the
ndings do not address the unbroken pattern of evidence to be derived from
the responses of those who read or must have read the message before the
D
South Yorkshire Police investigated it. No weight appears to have been
given to the lack of urgency which characterised the approach of the
authorities to this problem, while the fact that those responsible for security
at the airport decided to report it at all, which was treated as a signicant
feature, rather overlooked that this represented compliance with their
duties rather than their alarmed response to the message. By contrast,
E disproportionate weight seemed to be placed on the response of the
defendant in interview to how some people might react, without
recognising that the care needed to approach such a widely phrased question
in context. The response was part of the interview as a whole, when looking
back at what the defendant admitted he had done and his assertions that it
was a joke. The question based on what some people might think
embraced everyone, included those who might lack reasonable fortitude.
F This entirely equivocal response added nothing which supported the
contention that the message was of a menacing character.
34 We have concluded that, on an objective assessment, the decision of
the Crown Court that this tweet constituted or included a message of a
menacing character was not open to it. On this basis, the appeal against
conviction must be allowed.
G
Mens rea
35 As the message lacked the characteristic required for the purposes of
this o›ence, the issue of the defendants state of mind when he sent it, and
whether it was criminal, does not arise for decision. We shall therefore deal
very briey with this question.
36 By contrast with the o›ences to be found in section 127(1)(b) of the
H
Act and section 1 of the Malicious Communications Act 1988 which require
the defendant to act with a specic purpose in mind, and therefore with a
specic intent, no express provision is made in section 127(1)(a) for mens
rea. It is therefore an o›ence of basic intent. That intent was examined by
the House of Lords in Collinss case [2006] 1 WLR 2223. While it is true

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Chambers v DPP (DC) [2013] 1 WLR

that the examination was directed to grossly o›ensive messages, it would be A


quite unrealistic for the mens rea required for the di›erent classes of
behaviour prohibited by the same statutory provision to be di›erent in
principle, the one from the other, or on the basis of some articial distinction
between the method of communication employed on the particular
occasion. In consequence we are unable to accept that it must be proved
that, before it can be stigmatised as criminal, the sender of the message must
B
intend to threaten the person to whom it was or was likely to be
communicated, or that such a specic purpose is a necessary ingredient of
the o›ence. That would, in e›ect involve an o›ence of specic intent which
Parliament elected not to create.
37 In Collinss case, Lord Bingham emphasised, at para 11:
Parliament cannot have intended to criminalise the conduct of a
C
person using language which is, for reasons unknown to him, grossly
o›ensive to those to whom it relates, or which may even be thought,
however wrongly, to represent a polite or acceptable usage.
He continued:
On the other hand, a culpable state of mind will ordinarily be found
where a message is couched in terms showing an intention to insult D
those to whom the message relates or giving rise to the inference that a
risk of doing so must have been recognised by the sender. The same
will be true where facts known to the sender of the message about
an intended recipient render the message peculiarly o›ensive to that
recipient, or likely to be so, whether or not the message in fact reaches
the recipient.
E
38 We agree with the submission by Mr Smith that the mental element
of the o›ence is satised if the o›ender is proved to have intended that the
message should be of a menacing character (the most serious form of the
o›ence) or alternatively, if he is proved to have been aware of or to have
recognised the risk at the time of sending the message that it may create fear
or apprehension in any reasonable member of the public who reads or sees it.
We would merely emphasise that even expressed in these terms, the mental F
element of the o›ence is directed exclusively to the state of the mind of the
o›ender, and that if he may have intended the message as a joke, even if a
poor joke in bad taste, it is unlikely that the mens rea required before
conviction for the o›ence of sending a message of a menacing character will
be established. The appeal against conviction will be allowed on the basis
that this tweet did not constitute or include a message of a menacing G
character; we cannot usefully take this aspect of the appeal further.

Appeal allowed.
DANIEL HOADLEY, Barrister

' 2013 The Incorporated Council of Law Reporting for England and Wales
The Weekly Law Reports 4 August 2006

2223
[2006] 1 WLR Director of Public Prosecutions v Collins (HL(E))

A House of Lords

*Director of Public Prosecutions v Collins


[2006] UKHL 40
2006 June 22; Lord Bingham of Cornhill, Lord Nicholls of Birkenhead,
B July 19 Baroness Hale of Richmond, Lord Carswell and
Lord Brown of Eaton-under-Heywood

Crime Ñ Grossly o­ensive message Ñ Sending by means of public electronic


communications network Ñ Defendant using racist terms during telephone
conversations Ñ Terms not heard by members of ethnic minorities Ñ Whether
ÔÔgrossly o­ensiveÕÕ Ñ Communications Act 2003 (c 21), s 127
C
The defendant telephoned his Member of Parliament and spoke either directly to
him or members of his sta­ or left messages on an answering machine. In those
conversations and messages the defendant referred to ÔÔwogsÕÕ, ÔÔPakisÕÕ, ÔÔblack
bastardsÕÕ and ÔÔniggersÕÕ. None of the people whom the defendant addressed or who
picked up the recorded messages was a member of an ethnic minority. The defendant
was tried for sending, by means of a public telecommunications system, messages
that were grossly o­ensive contrary to section 127 of the Communications Act
D
20031. The justices held that, although the conversations and messages were
o­ensive, a reasonable person would not have found them grossly o­ensive;
accordingly, they acquitted the defendant. The Divisional Court dismissed the
CrownÕs appeal by way of case stated.
On appeal by the CrownÑ
Held, allowing the appeal, that the purpose of section 127(1)(a) was to prohibit
the use of a service provided and funded by the public for the beneÞt of the public, for
E the transmission of communications which contravened the basic standards of
society; that the proscribed act was the sending of the message of the proscribed
character by the deÞned means, and the o­ence was complete when the message was
sent; that it was for the court, applying the standards of an open and just multiracial
society and taking account of the context and all relevant circumstances, to
determine as a question of fact whether a message was grossly o­ensive; that it was
necessary to show that the defendant intended his words to be grossly o­ensive to
F those to whom the message related, or that he was aware that they might be taken to
be so; that the defendantÕs messages were grossly o­ensive and would be found by a
reasonable person to be so; that although section 127(1)(a) interfered with the right
to freedom of expression under article 10 of the Convention for the Protection of
Human Rights and Fundamental Freedoms, it went no further than was necessary in
a democratic society for achieving the legitimate objective of preventing the use of the
public electronic communications network for attacking the reputations and rights of
G others; and that, accordingly, since the messages had been sent by the defendant
by means of a public electronic communications network, he should have been
convicted of an o­ence under section 127(1)(a) ( post, paras 7Ð11, 13Ð17, 21Ð24,
26Ð27).
Decision of the Divisional Court of the QueenÕs Bench Division [2005] EWHC
1308 (Admin); [2006] 1 WLR 308; [2005] 3 All ER 326 reversed.

H The following cases are referred to in the opinions of their Lordships:


Cozens v Brutus [1973] AC 854; [1972] 3 WLR 521; [1972] 2 All ER 1297, HL(E)
Norwood v United Kingdom (2004) 40 EHRR SE 111
Sweet v Parsley [1970] AC 132; [1969] 2 WLR 470; [1969] 1 All ER 347, HL(E)
1
Communications Act 2003, s 127(1)(a): see post, para 6.
The Weekly Law Reports 4 August 2006

2224
Director of Public Prosecutions v Collins (HL(E)) [2006] 1 WLR
Lord Bingham of Cornhill

The following additional cases were cited in argument: A


R v Clear [1968] 1 QB 670; [1968] 2 WLR 122; [1968] 1 All ER 74, CA
R v Garwood [1987] 1 WLR 319; [1987] 1 All ER 1032; 85 Cr App R 85, CA

APPEAL from the Divisional Court of the QueenÕs Bench Division


By leave of the House of Lords (Lord Bingham of Cornhill, Lord Rodger
of Earlsferry and Lord Carswell) granted on 15 November 2005, the
Director of Public Prosecutions appealed from a decision of the Divisional B
Court of the QueenÕs Bench Division (Sedley LJ and Mitting J) on 23 June
2005, dismissing the CrownÕs appeal by case stated from a decision of
Leicester justices who on 4 October 2004 had acquitted the defendant,
Leslie George Collins, of a charge of sending by means of a public electronic
communications network, between 1 January 2002 and 6 January 2004,
messages that were grossly o­ensive contrary to section 127(1)(a) of the C
Communications Act 2003.
The court certiÞed the following question of general public importance:
ÔÔWhen deciding whether a message is grossly o­ensive for the
purposes of section 127(1)(a) of the Communications Act 2003, what, if
anything, is the relevance of (a) the intention of the person who sent the
message and (b) the reaction of the recipient?ÕÕ D

The facts are stated in the opinion of Lord Bingham of Cornhill.

David Perry and Louis Mably for the Crown.


Frances Oldham QC and Esther Harrison for the defendant.
Their Lordships took time for consideration. E
19 July. LORD BINGHAM OF CORNHILL
1 My Lords, by section 127(1)(a) of the Communications Act 2003 it is
an o­ence to send a message that is grossly o­ensive by means of a public
electronic communications network. In this appeal by the Director of Public
Prosecutions, the House is asked to consider the meaning and application of
that provision. F

The facts and the proceedings


2 The relevant facts are simple and (save in one important respect)
undisputed. The respondent, a man now aged 61, made a number of
telephone calls over the two years from January 2002 to January 2004 to the
constituency and Westminster o±ces of Mr David Taylor, the Member of G
Parliament for North West Leicestershire, whose constituent the respondent
was. On some occasions he spoke to a member of Mr TaylorÕs sta­; on
others he left recorded messages, to which members of sta­ and Mr Taylor
himself later listened. In these telephone calls and recorded messages the
respondent, who held strong views on immigration and asylum policy and
the provision of public support to immigrants and applicants for asylum,
H
ranted and shouted and made reference to ÔÔwogsÕÕ, ÔÔPakisÕÕ, ÔÔblack bastardsÕÕ
and (according to the statement of facts agreed between the parties for
purposes of this appeal but not the case stated by the justices) ÔÔniggersÕÕ.
Some of those who received the calls and heard the messages described
themselves as shocked, alarmed and depressed by the respondentÕs language.
The Weekly Law Reports 4 August 2006

2225
[2006] 1 WLR Director of Public Prosecutions v Collins (HL(E))
Lord Bingham of Cornhill

A 3 The respondent was charged with sending messages of a grossly


o­ensive, obscene or menacing character by means of a public
telecommunications system between 1 January 2002 and 6 January 2004,
contrary to section 43(1) of the Telecommunications Act 1984. The
information issued against the respondent was formally defective, since
section 43(1) of the 1984 Act was superseded by section 127(1)(a) of the
B
2003 Act in the course of the two-year period charged and the information
was duplicitous. But no objection has at any time been taken on these
grounds. It has been agreed to treat section 127(1)(a) as if it had been
e­ective throughout the relevant period, and to treat the charge as one of
sending messages that were grossly o­ensive.
4 The respondent pleaded not guilty and following a trial on 4 October
2004 Leicestershire justices dismissed the charge. In a case stated for the
C opinion of the High Court the justices gave their reasons. They found that
the racist terms used by the respondent sprang from his obvious frustration
at the way his concerns were being handled. They concluded: ÔÔThe
conversations and messages left were Ôo­ensiveÕ but not ÔgrosslyÕ o­ensive.
A reasonable person would not Þnd the terms used to be grossly o­ensive.ÕÕ
5 On the DirectorÕs appeal to the QueenÕs Bench Divisional Court
D [2006] 1 WLR 308 the leading judgment was given, after a brief argument,
by Sedley LJ, with whom Mitting J agreed. In paras 4Ð5 of his judgment
Sedley LJ said:
ÔÔ4. I am bound to say that my Þrst reaction to the question was that if
these messages were o­ensive, it was not possible in a decent society to
Þnd that they were less than grossly o­ensive. One has only to visualise
E having to explain and justify the making of the material distinction to a
black person or to one of Asian origin in order to appreciate its
invidiousness.
ÔÔ5. But for much the same reason, I can understand the dilemma in
which the justices found themselves. In order to interfere as little as
possible with freedom of expression, Parliament has criminalised only
grossly o­ensive messages. To have found the defendantÕs messages to be
F ino­ensive would have been extraordinary: hence the justicesÕ initial
Þnding. But some added value had to be given to the word ÔgrosslyÕ and
the question is whether the justices, despite what I have said about the
character of the defendantÕs language, were entitled in the particular
circumstances of the case to Þnd that this additional criterion was not
met.ÕÕ
G He concluded that the justices had been entitled to Þnd as they had. He
referred to section 127(1)(a) of the 2003 Act and (which the parties had not)
the Human Rights Act 1998, suggesting that the reason for criminalising
certain messages sent by post, telephone or public electronic
communications network was to protect people against receipt of
unsolicited messages which they might Þnd seriously objectionable. Thus
H the legislation struck a balance between the respect for private life enjoined
by article 8 and the right of free expression protected by article 10. He
continued, in para 9 of his judgment:
ÔÔThis is why it is the message, not its content, which is the basic
ingredient of the statutory o­ence. The same content may be menacing or
The Weekly Law Reports 4 August 2006

2226
Director of Public Prosecutions v Collins (HL(E)) [2006] 1 WLR
Lord Bingham of Cornhill

grossly o­ensive in one message and innocuous in another. As was A


pointed out in argument, counsel in the present case are unlikely to have
exposed themselves to prosecution by discussing its facts on the
telephone. A script writer e-mailing his or her director about dialogue for
a new Þlm is not likely to fall foul of the law, however intrinsically
menacing or o­ensive the text they are discussing. In its context, such a
message threatens nobody and can o­end nobody. Here, as elsewhere,
B
context is everything.ÕÕ
Sedley LJ then considered obscene, indecent, and menacing messages and
expressed his conclusions in paras 11Ð12:
ÔÔ11. If (as I will assume) these are the respective meanings of menacing,
obscene and indecent messages in the communications legislation, the
category of grossly o­ensive messages can be seen to lie somewhere near C
the centre of the spectrum. What is o­ensive has to be judged (very much
as the justices, by considering the reaction of reasonable people, judged it)
by the standards of an open and just multiracial society. So too, therefore,
what is grossly o­ensive, an ordinary English phrase with no special legal
content, which on Þrst principles (see Cozens v Brutus [1973] AC 854),
it is for the justices to apply to the facts as they Þnd them. Whether a D
telephone message falls into this category has to depend not only on its
content but on the circumstances in which the message has been sent and,
at least as background, on ParliamentÕs objective in making the sending of
certain messages a crime.
ÔÔ12. The defendant had no idea, and evidently did not care, whether
the person he was addressing or who would pick up his recorded message
would be personally o­endedÑgrossly o­endedÑby his abusive and E
intemperate language. It was his good fortune that none was, but this was
nevertheless a fact which the justices were entitled to take into account.
So was the fact that it was his Member of Parliament to whom he was
trying to address his opinions. Had the defendant nevertheless found
himself speaking on any of his calls to a member of an ethnic minority, it
might well have been impossible, however stoically the hearer might F
have brushed it aside, to avoid the conclusion that the message was
grossly o­ensive: [counsel for the defendant] concedes as much. Such a
conclusion would be loyal to ParliamentÕs essential objective of protecting
people from being involuntarily subjected to grossly o­ensive messages.
It would also have to take account, however, of the fact that it is not every
transmission of grossly o­ensive language which is punishable, but only
messages which, in their particular circumstances and context, are to be G
regarded in the wider society which the justices represent as grossly
o­ensive.ÕÕ

The legislation
6 Section 127 of the 2003 Act, so far as material, provides:
H
ÔÔ127. Improper use of public electronic communications network
ÔÔ(1) A person is guilty of an o­ence if heÑ(a) sends by means of a
public electronic communications network a message or other matter that
is grossly o­ensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
The Weekly Law Reports 4 August 2006

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[2006] 1 WLR Director of Public Prosecutions v Collins (HL(E))
Lord Bingham of Cornhill

A ÔÔ(2) A person is guilty of an o­ence if, for the purpose of causing


annoyance, inconvenience or needless anxiety to another, heÑ(a) sends
by means of a public electronic communications network, a message
that he knows to be false, (b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
ÔÔ(3) A person guilty of an o­ence under this section shall be liable, on
summary conviction, to imprisonment for a term not exceeding six
B
months or to a Þne not exceeding level 5 on the standard scale, or to
both.ÕÕ
The genealogy of this section may be traced back to section 10(2)(a) of the
Post O±ce (Amendment) Act 1935, which made it an o­ence to send any
message by telephone which is grossly o­ensive or of an indecent, obscene or
C
menacing character. That subsection was reproduced with no change save
of punctuation in section 66(a) of the Post O±ce Act 1953. It was again
reproduced in section 78 of the Post O±ce Act 1969, save that ÔÔby means of
a public telecommunication serviceÕÕ was substituted for ÔÔby telephoneÕÕ and
ÔÔany messageÕÕ was changed to ÔÔa message or other matterÕÕ. Section 78 was
elaborated but substantially repeated in section 49(1)(a) of the British
Telecommunications Act 1981 and was re-enacted (save for the substitution
D of ÔÔsystemÕÕ for ÔÔserviceÕÕ) in section 43(1)(a) of the Telecommunications Act
1984. Section 43(1)(a) was in the same terms as section 127(1)(a) of the
2003 Act, save that it referred to ÔÔa public telecommunication systemÕÕ and
not (as in section 127(1)(a)) to a ÔÔpublic electronic communications
networkÕÕ. Sections 11(1)(b) of the Post O±ce Act 1953 and 85(3) of the
Postal Services Act 2000 made it an o­ence to send certain proscribed
E
articles by post.

Conclusions
7 This brief summary of the relevant legislation suggests two
conclusions. First, the object of section 127(1)(a) and its predecessor
sections is not to protect people against receipt of unsolicited messages
which they may Þnd seriously objectionable. That object is addressed in
F
section 1 of the Malicious Communications Act 1988, which does not
require that messages shall, to be proscribed, have been sent by post, or
telephone, or public electronic communications network. The purpose of
the legislation which culminates in section 127(1)(a) was to prohibit the use
of a service provided and funded by the public for the beneÞt of the public
for the transmission of communications which contravene the basic
G standards of our society. A letter dropped through the letterbox may be
grossly o­ensive, obscene, indecent or menacing, and may well be covered
by section 1 of the 1988 Act, but it does not fall within the legislation now
under consideration.
8 Secondly, it is plain from the terms of section 127(1)(a), as of its
predecessor sections, that the proscribed act, the actus reus of the o­ence, is
the sending of a message of the proscribed character by the deÞned means.
H
The o­ence is complete when the message is sent. Thus it can make no
di­erence that the message is never received, for example because a recorded
message is erased before anyone listens to it. Nor, with respect, can the
criminality of a defendantÕs conduct depend on whether a message is
received by A, who for any reason is deeply o­ended, or B, who is not. On
The Weekly Law Reports 4 August 2006

2228
Director of Public Prosecutions v Collins (HL(E)) [2006] 1 WLR
Lord Bingham of Cornhill

such an approach criminal liability would turn on an unforeseeable A


contingency. The respondent did not seek to support this approach.
9 The parties agreed with the rulings of the Divisional Court that it is for
the justices to determine as a question of fact whether a message is grossly
o­ensive, that in making this determination the justices must apply the
standards of an open and just multiracial society, and that the words must
be judged taking account of their context and all relevant circumstances. B
I would agree also. Usages and sensitivities may change over time. Language
otherwise insulting may be used in an unpejorative, even a­ectionate, way,
or may be adopted as a badge of honour (ÔÔOld ContemptiblesÕÕ). There can
be no yardstick of gross o­ensiveness otherwise than by the application of
reasonably enlightened, but not perfectionist, contemporary standards to
the particular message sent in its particular context. The test is whether a
message is couched in terms liable to cause gross o­ence to those to whom it C
relates.
10 In contrast with section 127(2)(a) and its predecessor subsections,
which require proof of an unlawful purpose and a degree of knowledge,
section 127(1)(a) provides no explicit guidance on the state of mind which
must be proved against a defendant to establish an o­ence against the
subsection. What, if anything, must be proved beyond an intention to sent D
the message in question? Mr Perry, for the Director, relying by analogy on
section 6(4) of the Public Order Act 1986, suggested that the defendant must
intend his words to be grossly o­ensive to those to whom they relate, or be
aware that they may be taken to be so.
11 It is pertinent to recall Lord ReidÕs observations in Sweet v Parsley
[1970] AC 132, 148:
E
ÔÔOur Þrst duty is to consider the words of the Act: if they show a clear
intention to create an absolute o­ence that is an end of the matter. But
such cases are very rare. Sometimes the words of the section which
creates a particular o­ence make it clear that mens rea is required in one
form or another. Such cases are quite frequent. But in a very large
number of cases there is no clear indication either way. In such cases there F
has for centuries been a presumption that Parliament did not intend to
make criminals of persons who were in no way blameworthy in what they
did. That means that whenever a section is silent as to mens rea there is a
presumption that, in order to give e­ect to the will of Parliament, we must
read in words appropriate to require mens rea.ÕÕ
This passage is relevant here, since Parliament cannot have intended to G
criminalise the conduct of a person using language which is, for reasons
unknown to him, grossly o­ensive to those to whom it relates, or which may
even be thought, however wrongly, to represent a polite or acceptable usage.
On the other hand, a culpable state of mind will ordinarily be found where a
message is couched in terms showing an intention to insult those to whom
the message relates or giving rise to the inference that a risk of doing so must
have been recognised by the sender. The same will be true where facts H
known to the sender of a message about an intended recipient render the
message peculiarly o­ensive to that recipient, or likely to be so, whether or
not the message in fact reaches the recipient. I would accept Mr PerryÕs
submission.
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2229
[2006] 1 WLR Director of Public Prosecutions v Collins (HL(E))
Lord Bingham of Cornhill

A 12 In seeking to uphold the decisions below in the respondentÕs favour,


Miss Oldham relied on the context in which the messages were sent,
stressing that they were sent by him to his MP seeking redress of his
grievances as constituent and taxpayer. This is undoubtedly a relevant fact.
The respondent was entitled to make his views known, and entitled to
express them strongly. The question is whether, in doing so, he used
B
language which is beyond the pale of what is tolerable in our society.
13 The justices thought not. A decision of justices on a matter of this
kind is not to be disturbed at all readily, as the Divisional Court rightly
recognised. But some at least of the language used by the respondent was
language which can only have been chosen because of its highly abusive,
insulting, pejorative, o­ensive character. There was nothing in the content
or tenor of these messages to soften or mitigate the e­ect of this language in
C any way. Di­ering from the courts below with reluctance, but ultimately
without hesitation, I conclude that the respondentÕs messages were grossly
o­ensive and would be found by a reasonable person to be so. Since they
were sent by the respondent by means of a public electronic communications
network they fall within the section. It follows that the respondent should
have been convicted.
D 14 Miss Oldham did not contend that this conclusion would be
inconsistent with article 10 of the European Convention, given e­ect by the
Human Rights Act 1998, and she was right not to do so. Section 127(1)(a)
does of course interfere with a personÕs right to freedom of expression. But it
is a restriction clearly prescribed by statute. It is directed to a legitimate
objective, preventing the use of a public electronic communications network
for attacking the reputations and rights of others. It goes no further than is
E necessary in a democratic society to achieve that end. E­ect must also be
given to article 17 of the Convention, as was held in Norwood v United
Kingdom (2004) 40 EHRR SE 111.
15 For these reasons, and those given by my noble and learned friends,
Lord Carswell and Lord Brown of Eaton-under-Heywood, I would
accordingly allow the DirectorÕs appeal. At an earlier stage he undertook to
F the respondent that he would not, if his appeal succeeded, seek remission of
the case to the magistratesÕ court. There will therefore be no further order.
LORD NICHOLLS OF BIRKENHEAD
16 My Lords, I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Bingham of Cornhill. For the reasons he
gives, with which I agree, I too would allow this appeal.
G
BARONESS HALE OF RICHMOND
17 My Lords, for the reasons given in the opinion of my noble and
learned friend, Lord Bingham of Cornhill, with which I agree, I too would
allow this appeal but make no further order.
LORD CARSWELL
H
18 My Lords, the reports of cases before appellate tribunals are strewn
with instances in which the courts have reminded themselves of the
importance of resisting the temptation to interfere too lightly with the
Þndings of a lower court to which a decision has been entrusted, and have
then proceeded to yield to that very temptation. The magistratesÕ court in
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Director of Public Prosecutions v Collins (HL(E)) [2006] 1 WLR
Lord Carswell

this case was given the task of determining whether an expression or other A
matter sent by means of a public electronic communication was grossly
o­ensive in the eyes of reasonable people, judged, as Sedley LJ put it ( para 11
of his judgment in the Divisional Court) by the standards of an open and just
multiracial society. The justices who sit in the magistratesÕ court are people
who are expected to apply the standards of todayÕs society to determination
of such issues. It is of importance that their determinations should not be
B
upset lightly. Appellate tribunals should pay more than lip service to that
principle and when they do reverse them they should be clear on what basis
they do so: see Cozens v Brutus [1973] AC 854, 862Ð864.
19 The magistratesÕ court found ( para 3 of the case stated) that one
member of the sta­ of Mr David Taylor MP who listened to the messages on
his answering machine was upset by the language used, but another was not.
A third found it depressing. Mr Taylor was not personally o­ended but was C
concerned about the possible e­ect on his sta­. The court expressed its
conclusion in para 9 of the case stated: ÔÔthe conversations and messages left
were Ôo­ensiveÕ but not ÔgrosslyÕ o­ensive. A reasonable person would not
Þnd the terms used to be grossly o­ensive.ÕÕ
20 In the Divisional Court Sedley LJ, with whom Mitting J agreed,
expressed his opinion in para 12 of his judgment in the following terms:
D
ÔÔThe defendant had no idea, and evidently did not care, whether the
person he was addressing or who would pick up his recorded message
would be personally o­endedÑgrossly o­endedÑby his abusive and
intemperate language. It was his good fortune that none was, but this was
nevertheless a fact which the justices were entitled to take into account.
So was the fact that it was his Member of Parliament to whom he was
E
trying to address his opinions. Had the defendant nevertheless found
himself speaking on any of his calls to a member of an ethnic minority, it
might well have been impossible, however stoically the hearer might have
brushed it aside, to avoid the conclusion that the message was grossly
o­ensive: Miss Harrison concedes as much. Such a conclusion would be
loyal to ParliamentÕs essential objective of protecting people from being
involuntarily subjected to grossly o­ensive messages. It would also have F
to take account, however, of the fact that it is not every transmission of
grossly o­ensive language which is punishable, but only messages which,
in their particular circumstances and context, are to be regarded in the
wider society which the justices represent as grossly o­ensive.ÕÕ
The justices did not express any view on whether a reasonable person
belonging to any of the ethnic minorities to whom the respondent referred in G
his telephone calls would Þnd the terms used grossly o­ensive.
21 I respectfully agree with the conclusion expressed by my noble and
learned friend, Lord Bingham of Cornhill, in para 11 of his opinion that it
must be proved that the respondent intended his words to be o­ensive to
those to whom they related or be aware that they may be taken to be so.
I also agree with his conclusion in para 8 that it can make no di­erence to
H
criminal liability whether a message is ever actually received or whether the
persons who do receive it are o­ended by it. What matters is whether
reasonable persons in our society would Þnd it grossly o­ensive.
22 These conclusions are su±cient to answer the certiÞed question. It
remains to apply the principles to the facts of the present case and the
The Weekly Law Reports 4 August 2006

2231
[2006] 1 WLR Director of Public Prosecutions v Collins (HL(E))
Lord Carswell

A Þndings of the magistratesÕ court. I felt quite considerable doubt during the
argument of this appeal whether the House would be justiÞed in reversing
the decision of the magistratesÕ court that the reasonable person would not
Þnd the terms of the messages to be grossly o­ensive, bearing in mind that
the principle to which I have referred, that a tribunal of fact must be left to
exercise its judgment on such matters without undue interference. Two
factors have, however, persuaded me that your Lordships would be right to
B
reverse its decision. First, it appears that the justices may have placed some
weight on the reaction of the actual listeners to the messages, rather than
considering the reactions of reasonable members of society in general.
Secondly, it was conceded by the respondentÕs counsel in the Divisional
Court that a member of a relevant ethnic minority who heard the messages
would have found them grossly o­ensive. If one accepts the correctness of
C that concession, as I believe one should, then one cannot easily escape the
conclusion that the messages would be regarded as grossly o­ensive by
reasonable persons in general, judged by the standards of an open and just
multi-racial society. The terms used were opprobrious and insulting, and
not accidentally so. I am satisÞed that reasonable citizens, not only members
of the ethnic minorities referred to by the terms, would Þnd them grossly
D
o­ensive.
23 I accordingly agree with your Lordships that we are entitled to reach
a di­erent conclusion from the courts below. I would allow the appeal and
declare that the respondent should have been convicted of the o­ence
charged, while making no further order.
LORD BROWN OF EATON-UNDER-HEYWOOD
E 24 My Lords, I have had the advantage of reading in draft the speeches
of my noble and learned friends, Lord Bingham of Cornhill and Lord
Carswell, and for the reasons they give, with which I agree, I too would
allow this appeal.
25 I add only this. The contrast between section 127(1)(a) of the 2003
ActÑunder which the respondent was chargedÑand section 1 of the
Malicious Communications Act 1988 (a contrast struck by Lord Bingham
F
at para 7 of his speech) is crucial to an understanding of the true nature
and ambit of liability under section 127(1)(a). Whereas section 127(1)(a)
criminalises without more the sending by means of a public electronic
communications network of, inter alia, a message that is grossly o­ensive,
the corresponding part of section 1(1) of the 1988 Act (as amended by
section 43(1) of the Criminal Justice and Police Act 2001) provides that:
G
ÔÔAny person who sends to another personÑ(a) a letter, electronic
communication or article of any description which conveysÑ(i) a message
which is . . . grossly o­ensive . . . is guilty of an o­ence if his purpose, or
one of his purposes, in sending it is that it should . . . cause distress or
anxiety to the recipient or to any other person to whom he intends that it
or its contents or nature should be communicated.ÕÕ
H
26 In short, for liability to arise under section 1(1), the sender of the
grossly o­ensive message must intend it to cause distress or anxiety to its
immediate or eventual recipient. Not so under section 127(1)(a): the very
act of sending the message over the public communications network
(ordinarily the public telephone system) constitutes the o­ence even if it was
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Director of Public Prosecutions v Collins (HL(E)) [2006] 1 WLR
Lord Brown of Eaton-under-Heywood

being communicated to someone who the sender knew would not be in any A
way o­ended or distressed by it. Take, for example, the case considered in
argument before your Lordships, that of one racist talking on the telephone
to another and both using the very language used in the present case. Plainly
that would be no o­ence under the 1988 Act, and no o­ence, of course, if
the conversation took place in the street. But it would constitute an o­ence
under section 127(1)(a) because the speakers would certainly know that the
B
grossly o­ensive terms used were insulting to those to whom they applied
and would intend them to be understood in that sense.
27 I confess that it did not at once strike me that such a telephone
conversation would involve both participants in committing a criminal
o­ence. I am Þnally persuaded, however, that section 127(1)(a) is indeed
intended to protect the integrity of the public communication system: as
Lord Bingham puts it at para 7 of his speech, ÔÔto prohibit the use of a service C
provided and funded by the public for the beneÞt of the public for the
transmission of communications which contravene the basic standards of
our societyÕÕ. (Quite where that leaves telephone chat-lines, the very essence
of which might be thought to involve the sending of indecent or obscene
messages such as are also proscribed by section 127(1)(a) was not explored
before your Lordships and can be left for another day.)
D
Appeal allowed.
Order of Divisional Court and of
justices set aside.
No order to remit case to justices.
Costs in House of Lords and below out
of central funds. E
Solicitors: Crown Prosecution Service, Leicester; Mander Cruikshank,
Hinckley.
SH

H
Judgment Approved by the court for handing down. DPP v Smith

Neutral Citation Number: [2017] EWHC 359 (Admin)


Case No: CO/6265/2016
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice


Strand, London, WC2A 2LL

Date: 24 February 2017


Before :

LORD JUSTICE IRWIN


and
MR JUSTICE SWEENEY
---------------------
Between :

Director of Public Prosecutions Appellant


- and -
Kingsley Anthony Smith Respondent

---------------------
---------------------

John McGuinness QC and Benjamin Douglas-Jones


(instructed by ​The Crown Prosecution Service​) for the ​Appellant
Alesdair King ​of​ Usmani King Solicitors​ for the ​Respondent

Hearing date : 17 February 2017


---------------------
Judgment Approved
Mr Justice Sweeney:

Introduction

1. This is an appeal by way of Case Stated against a decision of District Judge


(Magistrates Courts) Leigh-Smith who, on 1 September 2016 in the Luton
Magistrates’ Court, acquitted the Respondent (who is now aged 19) of four offences
alleged to have been committed in June 2015, each of sending by means of a public
electronic communications network a message or other matter that was grossly
offensive or of a menacing character, contrary to s.127 (1)(a) of the Communications
Act 2003 (“the 2003 Act”).
2. In each instance the alleged offence was concerned with the posting by the
Respondent on the internet of a message attached to a YouTube video.
3. The question for the opinion of the court is:
Judgment Approved by the court for handing down. DPP v Smith

Was the District Judge right to find that the threats contained within the Respondent’s
posts were not menacing or grossly offensive?

The law

4. Section 127 of the 2003 Act provides, in so far as relevant, that:

“(1) A person is guilty of an offence if he

(a) sends by means of a public electronic communications network


a message or other matter that is grossly offensive or of an
indecent, obscene or menacing character……

(b) a person guilty of an offence under this section shall be liable,


on summary conviction, to imprisonment for a term not
exceeding 6 months, or for a fine not exceeding level 5 on the
standard scale or to both.”

5. The leading authorities on s.127(1)(a) are ​DPP v Collins [2006] 1WLR 2223
(“​Collins​”) in which the House of Lords was concerned with grossly offensive
messages, and ​Chambers v DPP [2013] 1WLR 1833 ​(“​Chambers​”) in which this
court, presided over by Lord Judge LCJ, was concerned with a message said to be of a
menacing character. The broad effect of those authorities was summarised by
Cranston J at [16]-[18] of his judgment, with which Laws LJ agreed, in ​Karsten v
Wood Green Crown Court ​[2014] EWHC 2900 Admin (“​Karsten​”) in which this
court was concerned with both types of message.
6. It is clear that, ultimately, whether a message is grossly offensive or of a menacing
character is an objective question of fact. I shall, however, return to the law in more
detail below when dealing with the arguments and the merits.

The Case Stated

7. In basic accordance with Rule 35.3-(4)(d) of the Criminal Procedure Rules, the Case
Stated sets out the findings of fact that are in issue and a summary of the evidence on
which the District Judge reached those findings (including summaries of the parts of
the four videos that were shown to him, and which give something of their flavour).
However, in a case such as this where films are involved and context is important to
the validity or otherwise of the decision being appealed, that was plainly insufficient.
The footage that the District Judge was shown should have been appended, in
viewable form, to the Case Stated so as to enable this court to fully understand the
evidence as to the context in which the messages were posted. This must be borne in
mind in any future case of this type.
8. There are other deficiencies in the Case Stated as well. That said it is not, in my view,
necessary to send it back for amendment – given that it is possible to discern enough
of the District Judge’s approach, and the errors in it, to decide the appeal.

The facts

9. As recorded in the Case Stated the Respondent, using his Google+ account, posted
four messages to a wall for public viewing. Each message was attached to a YouTube
Judgment Approved by the court for handing down. DPP v Smith

video that the Respondent had downloaded to his account. The videos were
journalistic works and not of themselves exceptionable.
10. The four charges were, between them, concerned with events on 22 and 23 July 2015
(when the Respondent was aged 18).
11. Charge 1 involved a video emanating from an organisation called Vice News which
was entitled “London’s Holy Turf War”. It showed the conflict between the extreme
right and Islamist extremists in their political activities in London, and included
reference to a man called Paul Golding – the leader of a far right wing organisation
called “Britain First”. To that the Respondent had attached the message “If I see Paul
Golding, I’d slice his throat”.
12. Charge 2 involved a video called “David Cameron Exposed on Islam”. It showed the
then Prime Minister speaking from the pulpit of Oxford Cathedral as to the need for
religious tolerance in the United Kingdom. To that the Respondent had attached the
message “I’m going to put an IED on your doorstep”.
13. Charge 3 involved a Vice News video entitled “The Islamic State” which showed the
nature of life in the Islamic State, including images of execution by crucifixion and
beheading. To that the Respondent had attached the message “Allahu Akbar, kill the
Kuffir”.
14. Charge 4 involved a video entitled “British Military Power” which showed the British
Army on exercise, and the nature of its weapons. To that the Respondent had attached
the message “One day I will kill the Kuffir, Allahu Akbar”.
15. The four films attracted a very large number of hits and thousands of comments
additional to those of the Respondent. However, there was no evidence that those
comments (examples of which were the subject of a formal admission) were direct
replies to the Respondent’s messages.
16. The Respondent was of interest, given his attendance at extremist Islamic fundraising
events, to the Eastern Counties Terrorism Unit. In late July 2015 an online search for
the Respondent by the Unit led to a video that he had posted on YouTube describing
his return to Islam and, via a link in that video, to his Google+ account and thus to the
four videos and messages.
17. They were reported by the Unit to the Anti-Terrorist Branch of the Metropolitan
Police for action to be taken. However, in the event, because of the need to prioritise
other work, no action was taken until 18 January 2016 – when the Respondent was
arrested. Thereafter, the CPS concluded that no terrorism offence was involved, and
the case was sent to the local CPS who then prosecuted for the instant offences.
18. The police received no public complaint about the Respondent’s messages. Neither
Mr Golding nor Mr Cameron had contacted the police, nor did the police contact
them. The police had not sought to have Google take the comments down (albeit
explaining that it was difficult to do so), and nor was there any evidence that the
comments made by others had led to any prosecutions.
19. As summarised in the Case Stated, the prosecution called Acting Police Sergeant
Johnson – who dealt with the intelligence background as to the Respondent’s
attendance at extremist Islamist fundraising events, and the discovery of the YouTube
video which led to the discovery of the Respondent’s Google+ account and thus to the
four videos and messages. The officer described the contents of the four videos and
the District Judge was shown a substantial portion of “London’s Holy War”, a smaller
portion of “David Cameron Exposed on Islam” and very short excerpts from “The
Islamic State” and “British Military Power”.
Judgment Approved by the court for handing down. DPP v Smith

20. Detective Constable Montgomery was also called by the prosecution. He dealt with
the fact that he was responsible for the case after its transfer to the Metropolitan
Police; that he had received the relevant reports in August and September 2015; and
that he had had to prioritise other work, and thus had not arrested the Respondent until
18 January 2016.
21. As already touched on, there was a formal admission as to the very large number of
people who had looked at the videos and that thousands of them had responded with
messages of their own – examples of which (many of them grossly offensive or of a
menacing character) were given in the admission. DC Montgomery stated that he was
not aware of anyone having been prosecuted for any of the messages posted, save for
the Respondent; that he was not aware of any complaints resulting from the
Respondent’s four messages; and that those messages had only been found by police
hard work. He said that he did not know whether any of the posts were still online, but
that taking down things that were posted was very difficult. He said that he had,
however, taken the threat to Mr Golding very seriously.
22. The factual basis of the prosecution case was not substantially disputed by the
Respondent (who, we were informed by the parties, did not give evidence).
23. The District Judge heard arguments from both sides, during the course of which he
was referred to both ​Collins and ​Chambers​. The prosecution contended that the
messages were either grossly offensive or of a menacing character.
24. In the result, the District Judge found that:

(1) The Respondent had posted each of the messages as alleged.

(2) The four films had attracted a large number of hits and comments additional to
those of the Respondent (of which the court had examples), but there was no
evidence that those comments were direct replies to those posted by the
Respondent.

(3) The police had received no public complaints but found the matters
complained of in their usual intelligence gathering role.

(4) Neither Mr Golding nor Mr Cameron had been contacted by the police, nor did
they contact the police regarding the Respondent’s messages.

(5) The police had not sought to have Google+ take the Respondent’s comments
down and were not aware of any other prosecutions arising out of any of the
comments made by others.

(6) It was not disputed that the Respondent was of interest to the police.

25. As to the remaining elements of the alleged offences the District Judge recorded in the
Case Stated that:

“I was of the opinion that:

1. The police did not prosecute others for equally offensive


messages because of the evidential issues in identifying the
authors. It was for the police to consider the practicalities of
investigating alleged offences, and within their discretion as
Judgment Approved by the court for handing down. DPP v Smith

to whether they expended resources to investigate or not,


and whether they would charge leading to prosecution or
not. The decision not to prosecute others in no way
inhibited the proper exercise of the police discretion to
prosecute the [Respondent].
2. The failure of the police to have the messages, the subject
of the charges, taken down did not preclude the messages
from potentially being grossly offensive, indecent, obscene
or menacing. It did however evidence the extent of the
police concern for the impact of the messages on those
seeing them.
3. I looked for assistance in analysing the texts complained of
in the analysis undertaken by Lord Judge LCJ at paragraph
31 and 32 of ​Chambers v The DPP​.

3.1 The context was the Respondent’s reaction to


watching four news items on YouTube,

(1) describing the conflict of radical Islam and


the extreme right in Britain,

(2) of the then Prime Minister’s plea from the


pulpit of Oxford Cathedral for religious
tolerance and

(3) Articles about ISIS and British Military


power.

Two postings were specific, regarding Paul


Golding and David Cameron. The other
two were non-specific.

3.2 Unlike Mr Chambers’ Twitter, the Respondent’s


postings were not jokes. They were typical
expressions of anger and bigotry heard amongst
a very small part of the Muslim community in
Luton.

3.3 Their language and punctuation were


inconsistent with the writer intending them to be
taken as serious warnings of actions he genuinely
intended.

3.4 He posted them on Google+ in his own named


account. They were easily found.

3.5 I noted the extreme lack of expedition with


which the police actioned their discovery of
these threats. There was no evidence of any
action being taken regarding them, other than in
Judgment Approved by the court for handing down. DPP v Smith

this prosecution. There was no evidence that


anyone complained, that anyone was angered or
upset, or indeed encouraged to act.

4. I could not find that these messages created menace.


They did not create fear or apprehension in those to
whom they were communicated. I deprecated their use,
but I was satisfied that they represented empty bombast
or ridiculous banter. (Per Lord Judge LCJ paragraph 30,
Chambers v DPP), and accordingly, I dismissed all the
charges.”

The grounds of appeal

26. The grounds of appeal are that:

(1) The posts, the subject matter of the charges, constituted or included, on an
objective assessment, messages of a menacing character;

(2) Further or alternatively the posts were, on an objective assessment, messages


of a grossly offensive character.

(3) The District Judge led himself into error in his assessment of the character of
the messages by taking into account in the way that he did, and/or attaching
too much weight to, matters including the following:

(a) The “extreme lack of expedition with which the police actioned their
discovery of the threats”;

(b) “There was no evidence of any action taken regarding the posts other
than in their prosecution”;

(c) “There was no evidence that anyone complained, that anyone was
angered or upset, or indeed encouraged to act”; and

(d) “The failure of the police to have the messages, the subject of the
charges, taken down did not preclude the messages from potentially
being grossly offensive, indecent, obscene, or menacing. It did however
evidence the extent of the public concern for the impact of the
messages on those seeing them.”

The arguments

27. Mr John McGuinness QC, on behalf of the Appellant, pointed out that each of the
Respondent’s messages involved a death threat, with the first two being directed at
individual people.
28. As to the law, Mr McGuinness argued that:

(1) The purpose of s.127(1)(a) of the 2003 Act, as made clear in the speeches of Lord
Bingham (at [7]) and Lord Brown (at [27]) in ​Collins​, is to protect the integrity of
the public communications system, which is provided and funded by the public
Judgment Approved by the court for handing down. DPP v Smith

for the benefit of the public, by prohibiting the use of the service for the
transmission of communications which contravene the basic standards of our
society.

(2) The actus reus of the offence consists of three elements, namely:

(i) Sending a message.

(ii)Of the proscribed character.

(iii) By the defined means.

(3) If all three elements are proved, the actus reus is complete at the time of the
sending. It makes no difference whether the relevant message is received or read
or not, or who (if anyone) actually receives it.

(4) In this case there was no dispute that, when he posted each message, the
Respondent had sent it by the defined means. The sole issue in relation to the
actus reus on each charge was therefore whether it was proved as a fact that the
relevant message was grossly offensive or of a menacing character.

(5) The resolution of that issue required, as made clear in the speeches of Lord
Bingham (at [8]) and Lord Carswell (at [22]) in ​Collins​, the application of an
objective test, namely whether, taking account of the context and all relevant
circumstances, and applying the standards of a reasonable person in an open and
just multi-racial society, the court was sure that a particular message was grossly
offensive to those to whom it related, or was of a menacing character – i.e. would
have created a sense of apprehension or fear in a person of reasonable fortitude
who had received or read it.

(6) Whilst in ​Chambers the court decided, on the very particular facts of that case,
that the application of that objective test does not necessarily exclude from
consideration the reaction of, or any effect on, a person who had actually received
or read the relevant message, the need for any such consideration was likely to be
relatively rare, and the weight to be attached to it was likely to be relatively
limited.

(7) The prosecution was then required to prove the requisite mens rea in each
instance, namely that:

(i) The Respondent intended his message to be grossly offensive to those to


whom it related; or that he was aware at the time of sending that it might be
taken to be so by a reasonable member of the public who read or saw it; or

(ii) The Respondent intended that the message should be of a menacing


character; or that he was aware, at the time of posting it, that it might create
fear or apprehension in any reasonable member of the public who saw or
read it.
Judgment Approved by the court for handing down. DPP v Smith

29. Against that background, and by reference to the content of the Case Stated, Mr
McGuinness submitted that it was clear the District Judge had erred in four significant
respects, namely:

(1) He did not, at any stage, identify or apply the critical objective test set out in
[28(5)] above.

(2) Instead he inappropriately took into account and/or attached too much weight to
the conduct of the police and the absence of any complaint – matters that were of
relevance on the particular facts in ​Chambers​, but which had no, or very little,
relevance or weight on the facts of this case.

(3) In any event, he recorded no reasoned conclusion at all as to whether or not it was
proved that the messages were grossly offensive.

(4) In addition, although reminded by the Appellant that the requisite mens rea
involved proof of either the relevant intention or the relevant awareness, he did
not record any consideration of awareness at all.

30. Mr McGuinness submitted that therefore the question posed should be answered in
the negative, and the order acquitting the Respondent of the charges should be
quashed. He did not suggest that it would be appropriate to substitute verdicts of
guilty as, on instructions, he accepted that the Magistrates Court should be afforded
the opportunity, among other things, of considering the Respondent’s mens rea, and
thus he submitted that the case should be remitted for a re-trial.
31. On behalf of the Respondent Mr Alesdair King conceded, in argument, that the
District Judge:

(1) Did not, at any stage, identify or apply the critical objective test in relation to
the sole disputed element of the actus reus.

(2) Recorded no reasoned conclusion at all as to whether or not it was proved that
the messages were grossly offensive.

(3) As to mens rea, did not record any consideration of awareness at all.

32. Whilst recognising the likely consequences of those concessions, Mr King submitted
that, nevertheless:

(1) Although its admissibility was not disputed at trial, the evidence of the
Respondent’s association with radical Islamists was evidence of bad character,
which was not to do with the facts of the alleged offences, and should not have
been admitted. In any event the Respondent’s beliefs, objectionable or
otherwise, could not assist as to the objective assessment of the content of the
messages.

(2) By reference to ​Chambers​, the District Judge was right to consider the
surrounding circumstances when assessing the character of the messages –
including the fact that they were posted in the Respondent’s own name; that no
Judgment Approved by the court for handing down. DPP v Smith

identifiable person had found them to be grossly offensive or of a menacing


character.

(3) On the entirety of the evidence the District Judge was thus entitled to conclude
that he was not satisfied that the messages were either grossly offensive or of a
menacing character. Rather, he was entitled to conclude, as he did, that they
were no more than empty bombast or ridiculous banter.

The merits

33. I agree with the submissions of Mr McGuiness (see [28] above) as to the requisite
elements of both the actus reus and the mens rea of the offence.
34. I bear in mind that, in deciding whether a particular message was grossly offensive
the court needed (per Laws LJ at [21] in ​Karsten​) to be very careful not to criminalise
speech which, however contemptible, was no more than offensive.
35. To any extent that the resolution of the question posed in the Case Stated turns on the
propriety of findings of fact made by the District Judge, who had the advantage of
seeing and hearing the evidence, it is necessary to keep in mind the many authorities,
including ​Collins itself, that make clear that factual findings are not to be disturbed at
all readily.
36. That said, the District Judge had first to consider whether the sole element of the actus
reus that was in dispute on each charge, namely whether the relevant message was of
the proscribed character, was proved. To answer that he had to ask himself whether,
as a question of fact, taking account of the context and all relevant circumstances, and
applying the standards of a reasonable person in an open and just multi-racial (and, I
would add, multi-faith) society, it was proved that a particular message was grossly
offensive to those to whom it related or was of a menacing character – i.e. would have
created a sense of apprehension or fear in a person of reasonable fortitude who
received or read it.
37. However, it is clear that the District Judge failed to ask himself that question at all,
and that nor did he record any reasoned conclusion as to whether or not it was proved
that the messages were grossly offensive – when there was, it seems to me, a clear
case that they were.
38. In my view, those errors alone fatally undermine all findings of fact that the District
Judge made in relation to the actus reus.
39. The District Judge also erred, in my view, in inappropriately taking into account,
and/or attaching too much weight to, matters that were of relevance on the particular
facts of ​Chambers​, but not on the facts of this case.
40. Chambers ​was concerned with a “tweet” in jest about blowing up an airport. None of
the Appellant’s “Twitter” followers had thought anything of it, no one had reported it,
the two gentlemen responsible for the security of the airport had shown no anxiety or
urgency in dealing with it, police action had not been hurried, and (after investigation)
the police had concluded that the Appellant posed no threat. The court concluded,
amongst other things, that the finding in the Magistrates’ Court that the “tweet” was
of a menacing character did not address that unbroken pattern of evidence, nor give
any weight to the lack of urgency of the response to it. Hence the conviction was
quashed.
41. This case is very different. The messages were clearly not a joke. There was no
unbroken pattern of evidence. There was, unsurprisingly, no evidence from anyone
Judgment Approved by the court for handing down. DPP v Smith

who had seen the messages. It was perfectly reasonable for the police to prioritise
other cases, and there was evidence that taking down things that were posted online
was very difficult. Hence the District Judge inappropriately took into account, and/or
attached too much weight to, the matters about which complaint is made.
42. Logically, consideration of whether the actus reus was proved came first, and if the
District Judge was not sure that the disputed element was proved, that was the end of
the case and there was no need to consider mens rea. Nevertheless, the Respondent’s
intention was considered, but there is no record of any consideration of his awareness
– which thus appears to be another error.
43. There is, however, no merit in the Respondent’s argument that the evidence as to the
Respondent’s association with radical Islamists was inadmissible. This is an appeal
by way of Case Stated and there was no objection to the admissibility of the evidence
at trial. In any event, bad character or not, the evidence had an obvious potential
relevance to the consideration of the Respondent’s mens rea.

Conclusion

44. In my view the Case Stated reveals at least three fundamental respects in which the
District Judge erred in his approach to the issues that he had to decide. In those
circumstances I would answer the question posed in the Case Stated in the negative,
and allow the appeal.

Irwin LJ

45. I agree. It was for those reasons that, at the conclusion of the hearing, the court
announced that appeal was allowed, that the acquittal was quashed, and that the case
would be remitted to the Magistrates’ Court for a full retrial before another District
Judge or Justices.
Page 1

Karsten v Wood Green Crown Court


CO/1133/2014
High Court of Justice Queen's Bench Division the Administrative Court
1 July 2014

[2014] EWHC 2900 (Admin)

2014 WL 2931322
Before: Lord Justice Laws Mr Justice Cranston
Tuesday, 1 July 2014

Representation

Mr M Bisgove (instructed by Tuckers Solicitors) appeared on behalf of the Appellant.

Mr L Chinweze (instructed by The Crown Prosecution Service ) appeared on behalf of the


Interested Party.

Judgment

Mr Justice Cranston:
1 This is an appeal by way of case stated from the decision of the Crown Court at Wood Green.
On 6 September 2013, it dismissed the appellant's appeal against the earlier decision of the
Tottenham Magistrates Court that he was guilty of an offence of sending a menacing message by
a telecommunications network, contrary to section 127(1)(a) of the Communications Act 2003 .
The message comprised the words: “Ask if he is Jewish. As him if he's eating kosher.”
2 The background is that the appellant worked with the complainant, Mr Ron Golan, for a period
of six weeks between mid June until the end of July 2013. Mr Golan is a company director and is
Jewish. The two shared an open plan office with the appellant being about 5 metres away from
Mr Golan. They travelled together on work to Manchester and Cardiff. The appellant then went on
holiday and never returned to work. The appellant retained a laptop which Mr Golan claimed
belonged to his Company. Emails were engaged between the two. The laptop was eventually
returned but in a damaged condition.
3 Between mid September 2012 and the early part of October 2012, Mr Golan received a series
of anonymous antisemitic calls from a blocked number. On the evening of 6 October 2012, he
received two calls. Although Mr Golan did not identify the voice of the caller in the first call, he
identified the voice of the appellant in the background. The appellant was prompting the caller to
ask Mr Golan questions, and, according to Mr Golan, the appellant uttered the words I have
quoted. A second call was made 10 minutes later. Mr Golan said that in the course of that call,
the expression “filthy Jew” was used. He said it was probably the same person had called earlier
that evening.
4 On 19 October 2012, the appellant was arrested for harassment. In the police interview he
answered all the questions with “no comment” answers. He gave the police a prepared
statement, saying that he was aware of the calls made to Mr Golan but did not want to name
anyone involved out of concern for his own safety. On 18 April 2013, the appellant was tried at
the Tottenham Magistrates Court for sending a message by a telecommunications network which
was grossly offensive, contrary to section 127(1)(a) of the Communications Act 2003 . He was
convicted and fined £35.
5 The appellant appealed his conviction to the Wood Green Crown Court. His Honour Judge
Page 2

Pawlak and two justices reheard the case. Mr Golan gave evidence. In the course of his evidence
he said that he recognised the appellant's distinctive voice because of what he said was its
“presence” and lower than average pitch. However, he could not describe its accent since he had
only been in the country eight years. At the close of the prosecution case it was submitted that
there was no case to answer, given that the identification was of poor quality and there was no
supporting evidence. The application was refused. The appellant did not give evidence but there
was unchallenged evidence from a voice recognition expert, Professor French, that the pitch of
the appellant's voice was a little higher than average, although not distinctive.
6 The court directed itself in accordance with R v Turnbull [1977] QB 224 and the passages in
Archbold Criminal Pleading, Evidence and Practice on voice identification. The Court
acknowledged that there was scope for error in any identification case but found that Mr Golan
was a credible and accurate witness. The Court was sure that the appellant was with the caller at
the time the first call on 6 October was made and that Mr Golan's recognition of his voice was
correct and could be relied upon. Mr Golan had worked with him for about six weeks and his
contact was sufficient for him to acquire a good knowledge of the appellant's voice. The appellant
had a motive, said the Court: the dispute over the damaged laptop. However, the Court could not
be sure that the appellant was present or involved in the making of the second call on the
evening of 6 October, or about its content. Accordingly, the Court said that it would disregard the
second call.
7 The prosecution had put the case, as it did in the magistrates court, as one of the first call on 6
October being grossly offensive. However, the Court decided that although the words of that call
were abusive and were intended to have that effect, and although Mr Golan had found them to be
of that nature, they were not grossly offensive. The words of the second call would have been
grossly offensive but, for the reasons given, the Court disregarded them.
8 However, the Court decided that the words of the first call were menacing. That was because
the questions were malicious and intended to threaten and intimidate. It was Saturday evening
when Mr Golan would be expected to be at home with his family. The call was anonymous and
the nature of the questions, given that the questioner was not in the least bit interested in the
answers or in obtaining answers, was menacing. Mr Golan's evidence was that he felt terrified.
The questioner and the appellant who was prompting him knew that Mr Golan was Jewish, and
there was no other conceivable reason in making the call except to menace him. The Court
added that the implication of the call was that the caller knew how and where to find Mr Golan at
will and he himself was powerless to do anything about it. The court dismissed the appeal.
9 In the case stated to this court, the Crown Court poses two questions: (1) whether there was
sufficient evidence on which the court could find that the identification of the appellant's voice by
the complainant was reliable; (2) whether the words “Ask him if he's Jewish. Ask him if he's
eating kosher” in the context of a single anonymous telephone call, and in all the circumstances
specified and found by the Court, were menacing.
10 For the appellant, Mr Bisgrove submitted that the quality of the evidence of the voice
identification was poor and that the Crown Court ought to have acceded to the submission of no
case to answer. He underlined the passage in R v Turnbull at page 228D, that a mistaken
witness could be a convincing witness. He took us to the passages in the Crown Court judgment
which highlighted the reliability of Mr Golan as a witness.
11 Mr Bisgrove turned to voice identification and the difficulties in lay persons identifying voices.
The first call on 6 October lasted a relatively short period and the second voice Mr Golan
identified was in the background and spoke only 11 words over a few seconds. Mr Bisgrove
submitted that that too undermined Mr Golan's voice identification. Next, Mr Bisgrove pointed out
that the appellant and Mr Golan had shared an office and travel journeys for some six week but
Mr Golan had not spoken to the appellant or heard his voice for about 10 weeks until the call on 6
October. Moreover, Mr Golan conceded that he was not good at distinguishing English accents.
Mr Bisgrove highlighted Mr Golan's inability to identify the voice of the second caller that evening,
6 October, as being the same as that in the first call. Finally, the one quality that Mr Golan had
identified, namely pitch, was unsupported by Professor French's evidence and the notion of
presence was vague and difficult to test. In all, Mr Bisgrove submitted, this was a poor quality
identification, unsupported by the evidence, and all the points detracted from the reliability of the
identification which Mr Golan had made.
Page 3

12 R v Flynn and St John [2008] EWCA Crim 970, [2008] 2 Cr App R 20 was a case where the
Court of Appeal Criminal Division considered identification by voice recognition in appeals in
which it quashed convictions on conspiracy to rob. In that case, police officers purported to
recognise voices of four accused taken from recordings of conversations covertly obtained from a
microphone located in a van just before it entered the targeted premises. The jury also heard
evidence from two voice recognition experts.
13 The Court of Appeal held that the identification of a suspect by voice recognition is more
difficult that visual identification but is likely to be more reliable when carried out by experts using
acoustic spectrographic and sophisticated auditory techniques. The Court said that the ability of a
lay listener correctly to identify voices is subject to a number of factors including the quality of the
recording of the disputed voice, the gap in time between the listener hearing the known voice and
the attempt to recognise the disputed voice, the ability of the individual lay listener to identify
voices in general, the nature and duration of the speech to be identified, and the extent of the
listener's familiarity with the known voice. The Court accepted that some voices are more distinct
than others. It referred to research showing that a confident recognition by a lay listener of a
familiar voice may nevertheless be wrong.
14 In this case, in identifying the appellant's voice in the first call of 6 October, the Crown Court
directed itself, correctly, in accordance with Turnbull and, in particular, was aware of the more
stringent test required with voice identification, as explained in the passages in Archbold. The
Court took into account the expert report prepared by Professor French and the inevitable scope
for errors with voice identification. The Court concluded that the identification of the appellant's
voice was not undermined by the respects in which such identification might otherwise be flawed.
It was impressed, as I have said, that Mr Golan was a credible and accurate witness on the
identification of the appellant's voice. It referred to the background that Mr Golan and the
appellant had worked closely together over a period of six weeks with regular contact in the office
and when travelling. Moreover, there was some corroboration of Mr Golan's evidence, since the
appellant admitted that he knew who had made the call but refused to divulge the name. In Mr
Chinweze's submission, with which I agree, that is a striking coincidence, in the light of Mr
Golan's identification of the appellant's voice. In my view, there were ample grounds for the
Crown Court to conclude that the identification of the appellant's voice was reliable. I would
answer the first question in this case stated in the affirmative.
15 The second question the Crown Court poses in the case stated concerns the status of the
appellant's words in the first call of 6 October, namely “Ask him if he's Jewish. Ask him if he's
eating kosher.” Mr Chinweze for the Crown Prosecution Service accepted that there was no
threat in those words but the context was that Mr Golan was Jewish and therefore it could be
inferred that the words, in their context, were menacing. Mr Chinweze highlighted the point made
by the Crown Court that there was no reason to make the call other than to intimidate Mr Golan.
In his submission, to remove the first call of 6 October from its context would be artificial and
would not do justice to the case stated.
16 In DPP v Collins [2006] UKHL 40, [2006] 1 WLR 2223 , Lord Bingham held that it is a question
of fact whether a message is grossly offensive under section 127(1) of the 2003 Act and that in
making this determination the Court must assess the words, taking account of their context and
all the relevant circumstances: [9] The other law lords agreed. Lord Bingham also said, at
paragraph [11], that where facts known to the offender of the message about the intended
recipient render the message particularly offensive to that recipient, or it is likely to be so, that is
also a relevant consideration. It is clear in my view that the same approach applies to whether
words are menacing. It is a question of fact to be judged in context.
17 The relatively high threshold set by the words of the statute was laid down in Chambers v
DPP [2012] EWHC 2157 (Admin), [2013] 1 WLR 1833 . That was a case before this Court which
considered whether a Twitter message, that an airport then closed would be blown sky high if not
re-opened with a week or so, was menacing within the meaning of the section. The defendant in
that case said that the message was sent as a joke and that, by their subsequent inaction, the
airport authorities demonstrated that they did not believe that it was a credible threat. In giving
the judgment of this Court, the Lord Chief Justice said that for a message to have a menacing
character it has to create a sense of apprehension or fear in the person who receives or reads it.
So if it would be brushed aside as a silly joke or empty, bombastic or ridiculous banter, then it
could not be described as a message having a menacing character: [30].
Page 4

18 As to the mental element to the offence, the Court held that it must be proved that the
defendant intended that the message should be of a menacing character or, alternatively, that he
was aware of or recognised the risk at the time of sending the message that it may create fear or
apprehension in any reasonable member of the public who reads or sees it: [38].
19 As I have said, Mr Golan said that the message terrified him, since he had never been the
victim of malicious calls before. The call implied that the caller knew how to find him when he was
powerless to do anything about it. In my judgment, the difficulty is that the Crown Court made no
finding that the appellant was associated with the series of anonymous calls to which Mr Golan
referred. It may have been open to the Crown Court to have made that finding in the light of the
appellant's admission that he knew who was making the calls, but it did not do so. In addition, the
Crown Court specifically stated that it would ignore the second call on the evening of 6 October.
In my view, in the absence of findings on those matters, it is impossible to bring into account
these other matters as the context of the appellant's words in the first call of 6 October. By
themselves, these words were nasty and antisemitic but I cannot see how they can be regarded
as menacing in the sense demanded by Chambers v DPP .
20 The case started as a gross abusive case but was then transformed by the Crown Court into a
menacing case. In my view, there was no threat expressed or implied in these words, nor do they
demonstrate the requisite mental element to menace. Consequently, I would answer the second
question in the case stated in the negative. The result is, if my Lord agrees, that the appeal is
allowed.
Lord Justice Laws:
21 I agree that this appeal should be allowed for the reasons given by my Lord, and that the
questions posed for the consideration of this Court should be answered as proposed by him. On
question 2, in my judgment there was no threat here. The Crown Court found that the words were
not grossly offensive; they were certainly offensive: a nasty, malicious antisemitic comment of
which the appellant should be thoroughly ashamed, but they were not menacing. The courts
need to be very careful not to criminalise speech which, however contemptible, is no more than
offensive. It is not the task of the criminal law to censor offensive utterances.
22 Are there any consequential matters? The conviction, it follows, is quashed.
Crown copyright

© 2018 Thomson Reuters


670 QUEEN'S BENCH DIVISION [1968]

!967 had been shipped on or before May 31, 1966, the sellers are A
Aruna Mills liable in damages.
y.' Parties' question 1: Yes.
GobSSJ Parties' question 2: Yes, subject to a right of set-off.
^ Parties' question 3 : Yes, subject to proof of causation—see
DONALDSON J. . , _.
answer to Award Question 2.
The award will be remitted to the directors of the Liverpool B
Cotton Association Ltd. in order that they may find, if necessary
after hearing further evidence, whether the buyers would in the
ordinary course of events have avoided the payment of the en-
hanced price if the goods had been shipped on or before May 31,
1966.
Award remitted. C
Buyers' costs if successful on issue
of causation; otherwise no order
as to costs.
Leave to appeal.
Solicitors: Laces & Co., Liverpool; Weightman, Pedder & Co., D
Liverpool.
L. N. W.

[COURT OF APPEAL]

CA
- REGINA v. CLEAR
1967
Oct. 6,10
Crime—Larceny—Demanding money with menaces—" Menaces "—
SELLERSL.J., Effect on victim's mind—Whether necessary to influence—
STEPHENSON Whether sufficient if mind of ordinary person affected—Test— "
and JAMES JJ. Larceny Act, 1916 (6 <fc 7 Geo. 5, c. 50), s. 30.
Goods valued at £3,000 were stolen in transit from a parked
goods vehicle while under the charge of the defendant, a
driver employed by a transport company. After the theft the
defendant reported to the managing director of the transport
company that before leaving the vehicle he had locked it and Q
set the burglar alarm. Proceedings were commenced by the
owners of the goods against the transport company and a sub-
poena was served on the defendant as a witness for the defence.
He arranged an interview with the managing director in the
course of which he told him that he would not give evidence to

[Reported by EVERARD CORBALLY, ESQ., Barrister-at-Law.]


1 Q.B. QUEEN'S BENCH DIVISION 671
c A
\ the effect that he had locked the vehicle and set the alarm unless - -
he was first paid £300, which was about 10 per cent, of the value 1957
of the stolen goods. The managing director informed the defen-
dant that he was fully covered by insurance and consequently the y^'
proposed litigation could not involve him in any personal loss. He Clear
also told the defendant that he needed further time to consider the
demand. The managing director then communicated with the
p police. At a subsequent interview, while the police were hiding in
an adjoining room the defendant repeated his demand to the
managing director who then handed him a sum of money.
At the defendant's trial on a charge of demanding money
with menaces contrary to section 30 of the Larceny Act, 1916,1
the judge directed the jury that while the prosecution in order to
show that the offence was committed had to prove that the defen-
_ dant intended to alarm his victim by means of threats calculated
to affect the mind of a person of ordinary firm courage and
character so as to cause him to yield to the demand, it was not
necessary that the intended victim should in fact have been
frightened. The jury convicted the defendant.
On appeal, on the ground, inter alia, of a misdirection since
proper direction would have been that the menaces must cause
such alarm as to unsettle the mind of the person on whom it
D operated and take away from his acts that element of free volun-
tary action which alone constituted consent: —
Held, dismissing the appeal, that since the offence related to
the acts and intent of the defendant, threats and conduct on his
part of such a nature that the mind of an ordinary person might
be influenced by them to accede unwillingly to a demand were
matters for the jury's consideration in deciding whether or not an
E intent to steal was proved against him; and that, although words
or conduct, which would not intimidate anyone, might negative
it, there could be such an intent without the victim being in
fact deprived of that element of free voluntary action which
alone constituted consent.
Reg. v. Walton and Ogden (1863) Le. & Ca. 288; 9 Cox 268
explained.
F
APPEAL against conviction.
The following statement of facts is taken substantially from the
judgment of Sellers L.J.
In 1963 the defendant, Thomas Walter Clear, was employed by
D and C Carriers, Ltd., whose business included the carriage of
goods. In February, 1963, he left one of the company's lorries,
loaded with goods valued at about £3,000, in a road close to his

1
Larceny Act, 1916, s. 30: be guilty of felony and on convic-
" Every person who with menaces tion thereof liable to penal servitude
or by force demands of any person for any term not exceeding five
anything capable of being stolen years."
with intent to steal the same shall
672 QUEEN'S BENCH DIVISION [1968]
c A
- home and found on his return that it had disappeared. The goods A
1967 were never recovered. He informed the managing director, Mr.
R^] Chapman, of the theft and assured him that before leaving the
Clear ' o r r v ^ e ^ a ^ locked it and set the alarm system and that he had
taken with him both the ignition key and the alarm key. The
defendant left the company's employment shortly after that inci-
dent. Later the owners of the lost goods claimed for their loss B
against the company. The company was insured, and the claim
and the conduct of the litigation were dealt with by the insurers.
After the commencement of the action by the owners of the
goods against the company a Mr. Richardson served a subpoena
on the defendant requiring him to attend the High Court to give
evidence. The defendant said that he was not going to make any C
statement until he had seen Mr. Chapman and added: " I must
say the right thing. Joe Chapman is worth a couple of hundred
quid."
The defendant later telephoned Mr. Chapman and informed
him that he had received a subpoena in connection with the loss of
the lorry. Mr. Chapman replied that he knew nothing about the D
matter and suggested that the defendant come to see him. The
defendant did go to see Mr. Chapman on four occasions. In the
course of the first two visits Mr. Chapman informed him that the
lorry and goods were insured and that he had learnt of the service
of the subpoena from the insurance broker. On the third visit the
defendant said: " You know this is going to cost you a lot of E
money," to which Mr. Chapman replied: " Well, I know it can't
cost me anything because I am insured." The defendant then said:
" It is going to cost you money. I can alter my statement." Mr.
Chapman reminded him: " You can't do that; you have already
given a statement to the police." The defendant then said: " It will
F
cost you about £300." Mr. Chapman asked: "What for?" to
which the defendant replied: " It would be better than to pay
£3,000." Mr. Chapman then said that he would think it over and
talk it over with his son.
Before the defendant visited him for the fourth time Mr. Chap-
man had communicated with the police who had installed a
listening device in his office and arranged for a detective sergeant
to sit in the adjoining room. He knew that any money that he
handed over to the defendant would be immediately recovered by
the detective sergeant. He drew £150 from the bank and placed it in
an envelope. When the defendant arrived he asked Mr. Chapman
if he had made up his mind and again said that he could change
1 Q.B. QUEEN'S BENCH DIVISION 673

c
A his statement. Mr. Chapman replied that he did not stand to lose - A-
1967
through the defendant changing his evidence as he had insured but
went on to ask the defendant how he wanted to be paid. The Reg.
V
defendant replied that he wanted £150 on the spot and the other Clear
£150 when the matter was finished. Mr. Chapman then handed
over the envelope to the defendant who put it in his pocket. Mr.
Chapman enquired how he was to know that the defendant would
act in the right way, to which he replied that he could rely on his
word of honour. The defendant then gave Mr. Chapman a receipt
for the £150 " in advance of services to the insurance co."
At the defendant's trial on a charge of demanding money with
menaces contrary to section 30 of the Larceny Act, 1916, the trial
judge, Judge Gillis, Q.C., directed the jury:
" Secondly it has to be proved that the demand was accom-
panied and made by means of menaces. The word ' menace'
or ' menaces' may not be so frequently in use in our modern
language as the word 'threats.' Substantially it means, you
may no doubt think, the same thing; and the menace or threat
£> that has to be proved must amount to such a menace as is
calculated, as is likely, to operate upon, to work upon, to have
effect upon, the mind of a person, an ordinary person, of
ordinarily firm mind. As one of the learned counsel indicated
in the course of his submissions to you, some persons may be
easily alarmed, other persons are so constituted as not to be
moved by an alarm which might well unsettle another. The
g test of the menaces must be your answer to the question:
' Were the menaces such—if any are proved—that they were
likely to operate on a person ordinarily firm and courageous
minded?' It is not essential, as I understand the law, that it
has to be proved, in order for this offence to be established,
that an intended victim of the demand must in fact himself
have been frightened or menaced or alarmed by the threats
p or menaces held out to him."
and in a later passage:
" The prosecution have got to prove to you in regard to
this offence that there was an intention in the mind of the
defendant, the accused, to alarm Mr. Chapman in this case so
as to cause him to yield to the request or demand for the
payment of money. You must be careful not to confuse the
G state of mind of the accused man with the state of mind of
the alleged victim. What has to be proved in regard to the
accused is, among other matters, that he had an intention to
alarm his victim and to alarm him by means of the menaces
which would have affected the mind of a person of ordinary
firm courage and character. Whether it affected the mind of
the alleged victim or not is not an essential matter. In some
cases it might; in some cases, if the proposed victim were
674 QUEEN'S BENCH DIVISION [1968]

c
- A- of strong character, or for other reasons, there would have A
1967 been no effect upon him. It is essential, when you consider
what would be the effect on the mind of a person of ordinary
R g-
y firm courage, first to put such a person in the position revealed
Clear by the facts of this case. Members of the jury, the essential
element of this charge likewise is that it has to be proved by
the prosecution that the intention of the accused when he made
his demand with menaces, if you find that he so made such a g
demand, was with intent to steal a sum of money. Intention is
a state of mind. It cannot be touched as a physical thing like
the hand, it cannot be seen, it cannot be heard; but it is as
much a fact to be proved as any other fact in a case."
The jury convicted the defendant who appealed on the grounds
that the judge was wrong in law in ruling that it was immaterial
under section 30 of the Larceny Act, 1916, whether or not the
menace had any effect on the mind of the person to whom it was
addressed; that he failed to follow the decision in Reg. v. Walton
and Ogden 2; alternatively, there was no or no sufficient evidence to
go to the jury that a menace had been made in that the behaviour
of the appellant did not and could not unsettle the mind of a
reasonable man; that the judge misdirected the jury that the test of
a menace was whether it was such as to operate upon the mind of
a person of ordinarily firm mind; and that the verdict of the jury
was unreasonable and could not be supported having regard to the
evidence.

T. Scott Baker for the defendant. A s Mr. Chapman had insured


the goods, his mind was not affected by the defendant's threats.
The menaces must achieve their object of frightening the person
to whom they are directed. The offence is not complete in the
mind of the offender: Rex v. Moran? The menace must unsettle
the mind of the victim: Reg. v. Walton and Ogden 4 ; Rex v. „
Collister and Warhurst.5 Further if the proper test of menaces is
their probable effect on the mind of a reasonable man, the summing
up did not give sufficient guidance on this question. It omitted to
tell the jury that the menaces must be calculated to unsettle the
mind in such a way as to take away the victim's freedom of action.
H. J. Leonard for the Crown. The test of what amounts to p
menaces is not subjective but objective and the critical question is
whether they are calculated to affect the mind of a reasonable man.
If the headnote to Reg. v. Walton and Ogden 6 means that the test
2
(1863) Le. & Ca. 288; 9 Cox * Le. & Ca. 288; 9 Cox 268.
5
268. (1955) 39 Cr.App.R. 100,
s (1952) 36 Cr.App.R. 10; [1952] CCA.
1 All E.R. 803, C C A . » Le. & Ca. 288.
1 Q.B. QUEEN'S BENCH DIVISION 675

c
A is the effect of the threats on the actual victim, then it does not - A-
accurately reflect the judgment of Wilde B. The mere fact that 1967
Mr. Chapman said that he himself did not care does not mean that R^T
the threats were not calculated to affect the mind of a reasonable Q£
man. It would be impossible for the Crown to call evidence as to
the state of mind of a hypothetical reasonable man.
B T. Scott Baker in reply. There was no evidence before the jury
on which they could find that a reasonable man would have acted
differently from Mr. Chapman. The judge should have directed
the jury as to the precise manner in which the victim's mind must
be proved to have been affected. He should have told the jury
that the menace must be such as would override the consent of a
C reasonable man.
Cur. adv. vult.

November 10. SELLERS L.J. read the following judgment of


the court: The defendant was convicted at the Central Criminal
Court on June 13, 1967, of demanding money contrary to section
*-* 30 of the Larceny Act, 1916. That section provides: "Every
person who with menaces or by force demands of any person any-
thing capable of being stolen with intent to steal the same shall
be guilty of felony . . ."
This section is of the same effect, though slightly different in
form and wording to section 45 of the Larceny Act, 1861, which
was the statute in force when Reg. v. Walton and Ogden was
decided in 1863.1 That decision was relied on before the trial
judge by counsel for the defendant as establishing the correct
direction to the jury, but after full argument the judge declined to
follow the submission. The main contention in this appeal is that
p the judge was wrong in law in ruling, and subsequently directing
the jury, that it was immaterial under section 30 whether or not the
menace had any effect on the mind of the person to whom it
was addressed, contrary, it was submitted, to the decision in
Walton.1 The further grounds of appeal will be indicated later.
The facts were not in dispute. [His Lordship stated the facts as
G set out above and continued: ] Turning now to the ingredients of
the offence, there was no doubt a demand made by the defendant
for money from Mr. Chapman and the summing-up in that
respect was not challenged. A demand may be implicit or ex-
plicit. The argument before the trial judge and on this appeal has
1
(1863) Le. & Ca. 288; 9 Cox 268.
676 QUEEN'S BENCH DIVISION [1968]

C. A. been in relation to the other two vital elements in the offence, a A


1967 demand with menaces and with an intent to steal the money.
Reg. It was not suggested and could not be that there was a right
or
Clear justification in claiming £300 to give evidence and the jury were
entitled to hold, notwithstanding that there were no express words,
that the defendant was threatening either to withhold his evidence
that care had been taken of the lorry and its contents or to give B
evidence to the contrary and that it would be detrimental to the
defence of the action in which the D & C Carriers' Company as
well as the insurers were interested. Mr. Chapman himself may
have been at no financial loss. No evidence was given of his
interest in the company save as managing director.
On these two matters the summing-up was as follows. [His C
Lordship read the passages from the summing-up set out above
and continued: ] The submissions of the defendant before the trial
judge were that there was no sufficient evidence of menaces to go
to the jury and consequently on appeal no sufficient evidence to
support the verdict of guilty.
It was submitted first that the correct direction to the jury D
should have been in accordance with the headnote in Walton's
case2 and that in failing to apply it there had been a misdirection
by the trial judge; that on such a direction there was no evidence
to go to the jury as Mr. Chapman was not intimidated or in-
fluenced by any menaces or threats and, second, that even if the
trial judge's statement of the law was accepted, what the appellant "
said and did was not making a demand with menaces, as no
reasonable and fair-minded man in the situation in which Mr.
Chapman found himself would have been intimidated or influenced
to hand over the money involuntarily. It was contended that
although the menaces need not necessarily be of duress or of
personal violence and may be of injury to person or property they
should not be trivial but of some gravity.
The headnote to Walton's case2 is as follows:
"In order to constitute the offence of demanding property
with menaces, within the meaning of the 24 & 25 Vict. c. 96,
s. 45, the menaces must cause such alarm as to unsettle the
mind of the person on whom it operates and take away from G
his acts that element of free, voluntary action which alone
constitutes consent. Where the menaces are not necessarily
of a character to excite such alarm, it becomes a question for
the jury whether they were made under such circumstances
of intimidation as to have that effect Where, therefore, a
2
Le. & Ca. 288.
1 Q.B. QUEEN'S BENCH DIVISION 677
c A
A prisoner had obtained money by threatening to execute a dis- - -
tress warrant which he had no authority to do, and the judge 1957
directed the jury, as a matter of law, that the conduct of the R g
prisoner constituted a menace within the statute, the court £"
quashed the conviction." Clear
The judgment of the court was delivered by Wilde B., and I
_ take two extracts3:
" Where then is the proper limit to the operation of this sec-
tion?—It is to be found in the words ' with intent to steal.'
There is no other restriction expressed. Nothing is said about
' violence' in conjunction with menaces, still less of violence
to the person as distinct from violence to property. There is no
express limit, except in the words ' with intent to steal.' Now,
C a demand of money with intent to steal, if successful, must
amount to stealing."
Then later4:
" If a man is induced to part with property through fear or
alarm, he is no longer acting as a free agent, and is no longer
capable of the consent above referred to. And accordingly, in
j) the cases cited in argument, the threatened violence, whether
to person or property, was of a character to produce in a
reasonable man some degree of alarm or bodily fear. The
degree of such alarm may vary in different cases. The essential
matter is that it be of a nature and extent to unsettle the mind
of the person on whom it operates, and take away from his
acts that element of free, voluntary action which alone consti-
P tutes consent. Now, to apply this principle to the present
case, a threat or menace to execute a distress warrant is not
necessarily of a character to excite either fear or alarm. On
the other hand, the menace may be made with such gesture
and demeanour, or with such unnecessarily violent acts, or
under such circumstances of intimidation as to have that
effect. And this should be decided by the jury. Now, in this
p case there was evidence very proper to be left to the jury to
** raise the above question. But the chairman left no such
question to them, and directed them as a matter of law that
the conduct of the prisoners (if believed) constituted a menace
within the statute. Our judgment, that this conviction cannot
be sustained, is founded entirely on this ground."
That decision is certainly an authority for the proposition that
G the question of whether the conduct of an accused constitutes a
menace within the section is a matter to be left to the jury. It is
expressly not a decision on any other ground. It is at least doubt-
ful whether the headnote accurately reflects the judgment. Wilde
B. had used the words5 " the threatened violence . . . was of a
3 5
Le. & Ca. 288, 297. Ibid.
* Ibid. 298.
678 QUEEN'S BENCH DIVISION [1968]

c A. character to produce in a reasonable man, some degree of alarm or A


1967 bodily fear." The later words refer to the threat being " of a
R^! nature and intent to unsettle the mind of the person on whom it
Clear operates," not to its actually having that effect and unsettling his
mind.
In Reg. v. Tomlinson* a case under section 44 of the Larceny
Act, 1861 (demanding money with menaces), Lord Russell of B
Killowen C.J. cited Walton's case7 as follows8:
" In that case the prisoner had threatened to execute a dis-
tress warrant, which he had no authority to do; and the
conviction was quashed on the ground that it was not for the
judge to do more than lay down the principle on which the
jury should proceed in considering whether the menace was Q
a menace within the meaning of the statute; that it was not
for him to say as a matter of law that the prisoner's conduct
constituted a menace within the statute, and that he ought
to have told the jury that the question was whether the threat
or words used were such as would naturally and reasonably
operate on the mind of a reasonable man; in other words,
whether they would have such an effect on such a person as to _^u
deprive him of his free volition and put a compulsion on him
to act as he would not act otherwise."
The judgment of Wills J. ends with the following passage 9 :
" With regard to the doctrine that the threat must be of a
nature to operate on a man of reasonably sound or ordinarily
firm mind, I only desire to say that it ought, in my judgment, p
to receive a liberal construction in practice; otherwise great
injustice may be done, for persons who are thus practised
upon are not as a rule of average firmness; but I quite appreci-
ate the fact that the threat must not be one that ought to
influence nobody."
In Rex v. Boyle & Merchant,10 the Court of Criminal Appeal
held that a threat to injure property may be a menace within section F
45 of the Act of 1861. In the course of a reserved judgment of the
court Lord Reading C.J. referred to Walton " and to Tomlinson,12
and said 13:
" We think it would be unwise to attempt to lay down any
exhaustive definition of the words of the section. The degree
of fear or alarm which a threat may be calculated to produce G
upon the mind of the person on whom it is intended to operate
may vary in different cases and in different circumstances. A
6
[1895] 1 Q.B. 706; 11 T.L.R. " [1914] 3 K.B. 339; 30 T.L.R.
212. 521; 10 Cr.App.R. 180, C C A .
7
Le. & Ca. 288. » Le. & Ca. 288.
8 12
[1895] 1 Q.B. 706, 709. [1895] 1 Q.B. 706.
0 13
Ibid. 710. 10 Cr.App.R. 180, 191.
1 Q.B. QUEEN'S BENCH DIVISION 679
c A
A threat to injure a man's property may be more serious to him - -
and have greater effect upon his mind than a threat of 1967
physical violence. When there is evidence of such a threat as
is calculated to operate upon the mind of a person of ordinarily *^8-
firm mind, and the jury have been properly directed, it is for Clear
them to determine whether in fact the conduct of the accused
has brought them within the section, and whether in the par-
g ticular case the ' menace' is established. If the threat was of
such a character that it is not calculated to deprive any person
of reasonably sound or ordinarily firm mind of the free and
voluntary action of his mind, it would not be a 'menace'
within the meaning of the section. In our judgment, when a
man, with intent to steal, threatens either to do violence to the
person of another, or to commit acts calculated to injure the
^ property or character of another, it is a ' menace' within the
meaning of the section."
In Reg. v. Collister & Warhurst14 there is an ambiguity in the
direction of the trial judge as the case is reported and there is
nothing in the judgment of the Court of Criminal Appeal which
clearly supports the appellant's contention. Russell on Crime,
D 12th ed. (1964) pp. 874-877, and other recognised textbooks have
not accepted the headnote to Walton's case15 as a correct state-
ment of the law.
In our opinion the offence under section 30 relates to the acts
and the intent of the accused. The intent to steal must be derived
from the whole of the circumstances. Words or conduct which
E would not intimidate or influence anyone to respond to the demand
would not be menaces and might negative any intent to steal, but
threats and conduct of such a nature and extent that the mind of
an ordinary person of normal stability and courage might be in-
fluenced or made apprehensive so as to accede unwillingly to the
demand would be sufficient for a jury's consideration. The demand
F must be accompanied both by menaces and by an intent to steal,
and there is no intent to steal unless there is an intent to take with-
out the true consent of the person to whom the demand is made.
But there can be such an intent without that person being in fact
deprived of " that element of free, voluntary action which alone
constitutes consent" in the words used by Wilde B. in Walton's
G case.16
There may be special circumstances unknown to an accused
which would make the threats innocuous and unavailing for the
accused's demand, but such circumstances would have no bearing
11
(1955) 39Cr.App.R. 100, CCA. " Ibid. 298.
15
Le. & Ca. 288.
680 QUEEN'S BENCH DIVISION [1968]
c A
- - on the accused's state of mind and of his intention. If an accused A
1967 knew that what he threatened would have no effect on the victim
R^ it might be different. We are of opinion that the learned judge stated
l e aw c o r r e c t
Clear ^ * ty m t n e summing-up and that the submission to the
— contrary fails.
The evidence of the defendant's conduct is of an unusual
character. The defendant must have thought that he could get B
£200 or £300 out of Mr. Chapman by threatening to change his evi-
dence, and he still persisted when he knew the lost goods or the
liability therefor were the subject of insurance. Mr. Chapman
himself was sufficiently affected to go to the police and inform
them of the demand of the defendant. We think there was evidence
properly to be left to the jury's consideration and, therefore, the C
second ground of appeal fails also.
There was a further submission that the summing-up did not
go far enough in explaining that any threat must be such as to
unsettle the mind of an ordinary person to whom the threat and
demand were made so as to take away his freedom of action.
These precise words perhaps were not used, but we are of opinion D
that the tenor of the judge's direction was to that effect.
We dismiss the appeal against conviction. The application for
leave to appeal against sentence was not proceeded with and is
refused.
Appeal dismissed.
E
Solicitors: Registrar of Criminal Appeals; Director of Public
Prosecutions.

[COURT OF APPEAL] F

CA
- BENTWORTH FINANCE LTD. v. LUBERT AND ANOTHER
1967
March 21
——— [Plaint. No. XO 3177]
DENNING
SALMON Contract—Implied term—Hire-purchase agreement—Motor-car log- G
and book—Whether provision of log-book implicit—Whether suspen-
Wnw LJJ. sfve condition on which existence of contract depends—Whether
condition waivable.
Contract—Condition or warranty—Suspensive condition—Provision of
log-book implicit on sale or hire-purchase of motor-car.
[Reported by MRS. PATRICIA MAY, Barrister-at-Law.]
64 COURT OF APPEAL (CRll\lI~AL DIVISION)

BEFORE

1971 LORD JUSTICE CAIRNS, LORD JUSTICE ORR AND


Jllly 16
MR. JUSTICE BEAN

RODNEY BRIAN LAWRENCE


NORMAN ALBERT POMROY

Blud.lIllIil-DireCliull 10 lllry-·· Menaces "-When Meaning of


Word slumld be Explailled-Belief of Defendant tlmt Means
Adopled Proper Way of Reinforcing Demand-When Direction
Reqllired-Thl1t Act 1968IC. 60), s.:!1 (I).
By the Theft Act 1968, s. 21-·· (I) a person is guilt) of
blackmail if, with a view to gain for himself or with intent to
cause loss to another, he makes any unwarranted demand with
menaces; and for this purp.)se a demand with menaces i~ un-
warranted unless the person making it does so in the belief-(a)
that he has reasonable grounds fur making the demand; and
(b) that the use of the menaces is a proper means of reinforcing
the demand .... "
In an ordinary case it is not necessary that the judge should
give the ju r) any ex planation of the word .. menaces," but in
exceptional ca~es .... here because of special knowledge in special
circumstances .... hat would be a menace to an ordinary person
is not a menace to the person to whom it is addressed, or where
the converse may be true, it is necessary to spell out the meaning
of the word.
Where on thl! face of it the means adopted to ubtain pay ment
of a debt is n,)t the proper way of enforcing it and where the
defendant does not at his trial set up the case that he believed
it tu be, there is no need for any direction to be given on the
proviso Ib) to sectiun 21 (I).

Appeals against conviction.


The appellants were convicted at the Central Criminal Court
on December 1-1-, 1970, of blackmail, and the appellant Lawrence
was further convicted of unlawful possession of an offensive
weapon. They were sentenced by Judge Christmas Humphreys.
Lawrence to nine months' and six: months' imprisonment (con-
secutive). and Pomroy to nine months' imprisonment suspended
for twelve months and he was also ordered to pay costs.
COURT OF APPEAL (CRIMlNAL DIVISION) 65

The substantial grounds of appeal were that the judge had 1971
luly 16
not directed the jury on (he meaning of the word •. menaces ..
RODNEY
in section 21 (I) and not directed them on proviso (b) 10 BRIAN
LAWRENCE,
section 21 (l) of the Theft Act 1968. NORMAN
ALBERT
POMROY
S. Parrish for the appellant Lawrence.
C. Ward for (he appellant Pomroy.
Richard £ill Canl1 for the Crown.

CAlRNS L.J.: On December 14, 1970, at the Central Criminal


Court both appellants were convicted of blackmail, and the
appellant Lawrence was con\'icted of unlawful possession of an
offensive weapon. Lawrence was sentenced to nine months'
imprisonment 'On the blackmail COllnt and six months' con-
secutive on the weapon count. Pomroy was sentenced 10 nine
months' suspended for twelve months and was ordered to
pay some costs. They bo(h appeal agains( conviction by leave
of the single judge. Lawrence applied for leave to appeal against
sentence, but after refusal by the single judge he abandoned that
application.
The particulars of the charge of blackmail were that" on the
20th day of January 1970 ... with a view to gain for themselves
[they! made an unwarranted demand of £70 from Robert George
Thorn with menaces."
Thorn said in evidence that in early November 1969 Pomroy
repaired (he roof of his house for an agreed price of £ 195.
Thorn was dissatisfied with the work, but paid £ 125 promising
10 pay the balance when the work was completed 10 his satis-
faction. On January 16 Pomroy came 10 his home and asked
what he intended to do about the £70. He replied that, as the
work was unsatisfaclOry and Pomroy had not put it right.
Pomroy would have to sue. Pomroy said it was expensive to
go to court and went on: .. Unless you pay me within seven
days. I will get satisfaction for my money and in future you will
ha\'e 10 look over your shoulder before you step out of doors."
Pomroy added that he was willing to pay £20 to someone 10
get satisfaction for his £70 and repeated the warning: .. You
66 COURT OF APPEAL (CRIMINAL DIVISION)

1971 had better look over your shoulder whenever you go OUI.·'
Jllly 16
Thorn reported the matter to the police. He said he thought
RODNEY
BRIAN Pomroy meant he was going 10 get someone to come along and
L.~WRENCE,
NORMAN
beat him up if he did not ray the £70.
ALBERT
POMROY
On January 20 Pomroy called again at Thorn's house. He
was accompanied by Lawrence, who was a big man. Pomroy
Cairns L.J.
said: .. I have come for the £70 you owe me." Lawrence said:
.. What about the £70'?" When Thorn said he would not pay
and that it was a bad job. Lawrence asked what was wrong with
the job and said: .• Step outside the house and we will sort this
matter out." When Thorn refused, Lawrence said menacingly:
.• Come on mate, come outside." The police, who were hiding
in the house, then appeared and took the appellants away. Mrs.
Thorn said that on January 19 in the evening Pomroy knocked
at the door with Lawrence. They asked for Thorn and left
when told that he was out.
Detective Constable Waiters said that in company with other
officers he was concealed behind the door of Thorn's house when
the appellants arrived on January 20. He heard a conversation
about the £70 which ended with Lawrence saying: .. Now listen,
I've got an interest in the £70, see," and then after a pause:
.. Come out of [he house and we'll sort this lot out now." Thorn
said: .. No" and Lawrence said: .. Come on mate, come out-
side." The police officers then revealed themselves and Waiters
said that he saw the appellants outside the door. He said to
Lawrence: .. What is your name'? " and Lawrence said: .. Leave
off, what do you want to know for'?" Pomroy said: .. Yes
it's all right, we only want my money." Lawrence said:
.. Leave me out, I've only come to help my mate." and when
asked gave his name to the police. The appellants were told
that they were being arrested for demanding money from Thorn.
After caution Lawrence said: .. That's nice, we've been well set
up." Pommy said: .. But he does owe me the money."
The police constable noticed Lawrence standing with his
hands in his pockets and searched him, but found nothing. At
the police station he again searched Lawrence with the help of
Police Constable Scott and discovered a flick knife produced by
COURT OF APPEAL (CRIMINAL DIVISION) 67

Lawrence from the pocket of his overcoat. Lawrence said: 1971


July 16
.. Oh Christ, I won't have 10 take this as well, will I?" Waiters
RODNEV
said: .. Of course you will be charged with having it.·' Lawrence BRIAN
LAWRENCE,
said: .. You rotten bastard, you must have put it on me, what's NORMAN
ALBERT
your name?" Waiters gave his name and Lawrence said: POMROV
.. Well, it must have been one of you, I'll have your name as
Cairns L.I.
well." Police Constable Scott then gave his name. Lawrence
said: .. Look I'm a married man with four kids, I'm not even
working. Can't you leave that thing out? If you don't
mention it at coun, I won't. Surely you've got enough on us
without that as well. They'll bang me up for years for that."
Later the same day Waiters saw Pomroy with Sergeant
Carter, when Pomroy said that he wanted to tell his side of the
story and in the course of the conversation gave details of the
work that he had done at Thorn's house. The officer then said:
.. Well, Mr. Pomroy, I'm sure as a man of business you realised
the correct manner in which you should have gone about getting
any money you considered owing to you. Taking Mr. Lawrence
with you last night and tonight is not rhe right way to do it, is
it?" Pomroy said: •. No, I realise it was stupid of me. but I'd
heard he was in the knuckle game and you know the rest."
Pomroy after that made a written statement in which he said
that on the first visit he did say: .. Look over your shoulder if
I don't get the money in a week," and he added: .. I can see
now that it was wrong of me to threaten him in this way. but I
was upset over him not paying the money." Of his final visit
he said ... It was never my intention at all to use any violence
whatsoever on Mr. Thorn, but just 10 try and frighten him into
paying me the £70." Of Lawrence he said: .. I asked Mr.
Lawrence to come with me to persuade Mr. Thorn to pay me
the money. because I felt that by Mr. Lawrence's presence Mr.
Thorn would change his mind and pay me the money."
On the morning of January 21 Waiters showed a copy of
Pomroy's statement to Lawrence. After reading the statement
and after caution. according to the police officer, the following
conversation took place. Lawrence said: .. Yes. that's about
it. what's wrong with that, the man owed him the money?
68 COURT OF APPEAL (CRIl\IlNAL DIVISION)

1971 Wouldn't you help a friend?" Waiters said" 1n other words,


July 16
everything that Mr. Pomroy says is true, is it?" Lawrence said:
RODNEY
BRIAN .. Yes, that's right." After some funher questions and answers
LAWRENCE,
NORMAN
Lawrence said: .. Look, can't I talk to you about this other
ALBERT
POMROY
business? Surely you don't need that as well." Waiters said:
.. What do you mean? " Lawrence said: .. Well you know that
Cairns L.I.
other thing. I could do years for that, if you forget it. I won't
mention it in court," and he went on to insist that SCOl! had
planted the knife on him. The evidence of Detective Constable
Waiters was confirmed in parts by other officers, including
Sergeant Clark.
Police Constable Scon gave evidence about the finding of
the knife and said that on the night of the arrest he laid
Lawrence's overcoat on the table and began to feel around the
lining. He felt an " L" shaped object, but could not find any
way of getting it out of the lining. He said: .. There's some-
thing in the lining, I can't get it out." Lawrence said: .. Don't
tear the lining, there's a hole in my pocket, I'll get it out."
Lawrence manouvred the object towards the hole and to extricate
the object from a small hole in the corner of the pocket lining.
SCOl! took the coat from Lawrence and removed the flick knife
which was partly opened.
Pomroy in evidence said that he was a man of good character
with no previous convictions. He was disappointed when Mr.
Thorn only paid him £125. He could get no explanation as to
what was wrong with the roof. otherwise he would have put it
right. He got the impression that Mr. Thorn was not making
a genuine complaint and was trying to twist him out of £70.
When he went to see Thorn on the Friday. he asked why he
did not pay and gave him the names of arbitrators. Thorn
replied that he was getting another builder to finish the roof and
would deduct his charges from the £70. Pomroy made the
remark to Thorn about looking over his shoulder and said he
had done it in a fit of temper. He had not intended any menace.
He had often offered to rectify the roof if the defects were
pointed out. It was true that he thought legal action would
COURT OF APPEAL (CRIMINAL DIVISION) 69

cost money and he did not think that Thorn was at all afraid of 1971
July 16
him.
RODNEY
On the Monday he went to see Lawrence [0 help him to get BRIAN
LAWRENCE,
a job, not [0 ask for help in collecting the £70. Lawrence came NORMAN
ALDERT
with him [0 Thorn's house, but remained some distance behind POMROY
and never spoke. Thorn was out; Mrs. Thorn answered. Thorn
Cairns L.I.
'phoned him on the Tuesday morning. the 20th, to ask why he
had called and he said it was about the money. He said he
would call again in the evening. In the evening he called on
Lawrence to tell him that the job he hoped to arrange had not
materialised and Lawrence was upset. They went to Thorn·s.
Lawrence came only as a friend with no intention of frightening
Thorn into paying. He had no discussion with Lawrence as to
what they would do at Thorn's, but he did tell La";Tence he was
owed £70. He had tools in his van which could have been
used as weapons, but he did not take them with him.
Then this conversation with Thorn, according. to Pomroy.
took place. Pomroy said: •. Good evening, Mr. Thorn. I have
come for my money." Thorn said: "I [Old you. I'm not paying
the money." La,vrence said: .. Why won't you pay the money?
Is there something wrong with the ,';'ork?" Thorn said:
.. There's nothing wrong with it." Lawrence said: .. Why won't
you pay the money?" Thorn said: .. I'm not going into
technical details. What has it got to do with you?" Lawrence
said: .. It has nothing [0 do with me. Why don't you pay the
money? Come down and let's discuss it."
Pomroy said he was petrified as he could not grasp why he
was arrested. He was in a state of daze and felt very low when
kept in the cells for one-and-a-half to two hours. He did not
think that he had committed a serious crime. He thought the
officers were mistaken and he \\/ould be able to go home when
he told his story. He said to the police he would do anything
to help and that his arrest was bloody stupid. He knew nothing
about Lawrence having a knife and told the police of this. He
may have said to the police that he realised it was stupid of
him, but this referred to the remark he made in temper on the
Friday. He never said anything about the" knuckle game."
70 COURT OF APPEAL (CRIMINAL Dl\'ISION)

1971 He never intended to admit taking Lawrence as a strong arm


July 16
man or to paying him from the £70. Apart from the remarks
RODNEY
BRIAN which he made in frustration on the Friday about" looking over
LAWRENCE.
NORMAN your shoulder." he did not think he had done anything wrong.
ALBERT
POMROY
Pomroy called two witnesses to say that his work was
reasonably well done. Mrs. Pomroy gave evidence to say that
Cairns LJ.
this sort of thing was out of character for her husband. and
there was a witness from Mar/ey Tiles to give a reasonable
explanation for Pomroy and Lawrence being together on
January 19 and 20.
Then Lawrence gave evidence. He said that on the Monday.
the 19th, Pomroy, who was an old friend, asked him if he was
interested in a job with Marley Tiles and took him for a drink.
Pomroy said he had a call to make and they both went to
Thorn's house. On arrival Lawrence got out of the van to
stretch his legs while Pomroy, twenty-five yards away, spoke to
Mrs. Thorn. Lawrence was not concerned with the talk.
On the Tuesday Pomroy came round in the evening to tell
him that the job was not available and he felt upset. He went
out for a drink with Pomroy and on the way Pomroy explained
he had done a job and had not been paid. They stopped at
Thorn's house and Lawrence thought they were calling for
money which was waiting to be collected. He knew of no
previous trouble with the money. When Pomroy asked for the
money, Mr. Thorn was very arrogant and said: .. I've told you
before you're bloody well not getting it." Pomroy was leh
speechless. Lawrence was embarrassed. He. therefore, said:
.. Why don't you pay him? Is there anything wrong with the
work?" When Thorn said: .. What's it bloody well got to do
with you? " he said: .. It's got nothing to do with me. Why
don't you come out and discuss the matter?" He did not ask
Thorn to step outside in a menacing manner.
When the police appeared he, Lawrence. said nothing about
being .. Well set up." Once he knew they were police he
co-operated. He undid his overcoat when asked and was given
a thorough search. At the police station he was searched again
and money was removed. Police Constable Scott took his over-
COURT OF APPEAL (CRIMINAL DIVISION) 71

coat somewhere out of sight and was away with it for four or 1971
July 16
five minutes. Then Scott returned with the overcoat and went
RODNEY
through the pockets. He pulled the knife from one of the BRIAN
LAWRENCE.
pockets and tried to force it into Lawrence's hand in order to NORMAN
get his fingerprints on the knife, but Lawrence was too quick ALBERT
POMROY
and moved back saying: .. You dirty rotten bastard, you put it
Cairns L.l.
in my pocket." He did not ask the police if they could leave
out any mention of the knife. The next day he told the police
again he was saying one of them had planted the knife on him.
In the cells Scott told him he need not bother about the knife
as it would not be mentioned in court. Lawrence said: .. If
you don't mention it, I won't." He didn't say" Wouldn't you
help a friend ... what's wrong with that?" When Pomroy's
statement was read to him he did not adopt it, but said: .. It's
a lot of nonsense." When Waiters told him he would get
fourteen years for demanding money with menaces. he then said:
.. Why have you planted the knife on me? Do you need that
as well as fourteen years? "
We deal first with Lawrence's appeal from the conviction
for possession of an offensive weapon. Here the issue was
whether the flick knife had been in Lav.Tence's coat pocket when
he was arrested or whether it had been planted there by a police
officer. Lawrence complains that the judge in his summing-up
said: .. Lawrence said Sergeant Clark is lying." His case is that
he did not suggest Sergeant C1ark was lying. but that he was
mistaken. A second point he .raises is that the judge told the
jury that Lawrence had not complained about the planting of
the knife until the day after his arrest. \vhereas he had, in fact.
made the allegation on the day of his arrest.
This Court cannot suppose that these two details had the
smallest effect on the minds of the jury. The issue was a broad
one-was Lawrence to be believed about the knife or were the
police officers. and in particular Police Constable Scott? Clearly
on this the police were believed and Lawrence was disbelieved.
and the Court can see no ground for setting aside their verdict.
As to the blackmail charge, the first point we deal with is
the contention that the judge gave the jury no definition of what
72 COURT OF APPEAL (CRIMINAL DIVISION)

1971 constitutes a menace. It is said that they should have been


JlIly 16
directed in accordance with CLEAR (J 968) 52 Cr.App.R. 78;
RODNEY
BRIAN /19681 I O.B. 670, that they must consider what the effect would
LAWRENCE,
NORMAN
be in the mind of a reasonable man of the words and actions of
ALDERT the two defendants. The word "menaces" is an ordinary
POMROY
English word which any jury can be expected to understand.
Cairns L.I.
In exceptional cases where because of special knowledge in
special circumstances what would be a menace to an ordinary
person is not a menace lo the person to whom it is addressed,
or where the converse may be true. it is no doubt necessary to
spell out the meaning of the word. But. in our view. there was
no such necessity here. The judge made it abundantly clear that
the issue for the jury was whether the two men had gone to
Thorn's house merely to ask reasonably for payment. on
Pomroy's pan to ask reasonably for payment and on Lawrence's
part merely as a companion. or whether they had gone to
threaten and frighten him into paying. That was quite a
sufficient explanation of what is meant by menaces.
Next. should the judge have directed the jury on the proviso
to section 21 (I) (h) of the Theft Act: that is to say, as to
whether the accused believed that what they did was a proper
way of enforcing the debt? Neither of them suggested at the
trial that, if menaces "'ere used by them, it was a proper means
of enforcement. It is true that the police evidence was that
when Pomroy's statement was read to him, Lawrence said:
"That's about it, what's wrong with that?" but he repudiated
that in his evidence and said that his reaction had been "It's
a lot of nonsense."
Where on the face of it the means adopted to obtain payment
of a debt is not the proper way of enforcing it and where the
accused does not at his trial set up the case that he believed it
to be, there is no need for any direction to be given on the
proviso.
The most substantial ground of appeal advanced is that the
judge did not direct the jury that what was said by one man
behind the back of the other was not evidence against the other.
So far as Pomroy is concerned. we think the point can easily be
COURT OF APPEAL (CRIMINAL DIVISION) 73

disposed of. What is suggested is that Lawrence's alleged 1971


July 16
acceptance of Pomroy's written statement might have caused the
RODNEY
jury to attach more weight to that statement as against Pomroy BRIAN
than if they had had no evidence of such acceptance. This LAWRENCE, NORMAN
appears to us to be extremely far-fetched. As against Pomroy ALBERT
POMROY
himself the statement was, of course, a damning piece of e\'idence.
Cairns L.l.
The jury had been clearly told that each man's case must be
considered separately and it is to us inconceivable that the jury
could suppose that the statement carried any more weight against
Pomroy because Lawrence had acceded to it than the \\!eight
that it would have had because of his own signature to it. We
can find no merit in Pomroy's appeal and it is accordingly
dismissed.
La wrence'S case has more substance, because there should
have been an express direction to the jury to disregard as against
Lawrence everything that had been said between Thorn and
Pomroy on January 16 and further there should have been an
ex.press direction that Pomroy's oral and written admissions to
the police were no evidence against Lawrence unless, in regard
to the written statement. the jury were satisfied that Lawrence
had said: "that's about it."
In these respects tbere was a failure to give a proper direction
to the jury. We again observe, however, that tbe judge clearly
told the jury (indeed he explained it twice in his summing-up)
that the case against each man must be considered separately.
They could hardly have supposed that in considering the case
against i..awrence he could be guilty because of things said and
done before he ever came into the picture.
Then the judge dealt carefully with the conflict of evidence
as to whether Lawrence acceded to or rejected Pomroy's written
statement and this must have indicated to the jury that. unless
he acceded to it, it could not be taken against him. In all
probability the jury were well satisfied that he had acceded to
it. but quite apart from that the case against Lawrence was a
very strong one. We note in particular his own evidence that
he had said to the police: "Why have you planted the knife on
me? Do you need that as well as fourteen years? "
7-1- COURT OF APPEAL (CRIMINAL DIVISION)

1971 We are quite satisfied that the failure (0 give a fuller direction
July 16
did not lead to any miscarriage of justice. We accordingly apply
RODNEY
BRIAN
the proviso under section 2 (I) of the Criminal Appeal Act 1968
LAWRENCE, and dismiss Lawrence's appeal.
NORMAN Appeals dismissed.
ALBERT
POMROY

[IN THE HOllSE OF LORDS]

BEFORE

LORD WILBERFORCE, LORD PEARSON,


LORD SIMON OF GLAISDALE,
LORD CROSS OF CHELSEA AND LORD SALMON

1972 DIRECTOR OF PUBLIC PROSECUTIONS


June 20, 22; I'. WHYTE AND ANOTHER
July 19

Obscelle Libel-HQI·illl: Obscene Article for Publication for Gaill-


Booksellers-Pornor::raphic Books all Sale-FindillR by Justices
that Most Likely Purchasers were Elderly Addicts-Dismissal
of Information-Whether Books such as 1I'0uld " Depral'e alld
Corrupt Persons . .. likely . .. la Read" them-Effect on Minds
and Emotions 0/ Readers-Policy of Act-" Some Persolls "-
When De Minimis Principle lIIay be Applied-Obscene Publica-
firms Act 1959 17 & 8 Eli:. 2. c. 66), s. I (I) (as alllended).
Informations were preferred by the appellant against the
respondents, who were husband and wife and booksellers, charg-
ing them with having obscene articles. namely books and a
magazine, for publication for gain, contrary to section 2 (l) of
the Obscene Publications Act, 1959. The justices found that the
persons likely or mmt likely to purchase the articles were
.. males of middle age and upwards ., and that "the significant
proportion of future recipients of the articles were going to be
the hard core of regular customers of the shop," who were likely
to find the articles ., fascinating, enabling them to indulge in
private fantasies of their own, but not invoking overt sexual
activity of any kind," and who were .. addicts to this type of
material, and whose morals were already in a state of depravity
and corruption." They entertained grave doubts" whether such
minds could be said to be open to any immoral influences which
the said articles were capable of exerting." They accordingly
Page1

Criminal Law Review


2005

Case Comment

Grossly offensive telephone messages: test for determining whether message


grossly offensive
Dilys Tausz
D.C. Ormerod
Subject: Criminal law. Other related subjects: Telecommunications
Keywords: Offences; Telephones
Legislation: Communications Act 2003 s.127 (1)
Case: DPP v Collins [2005] EWHC 1308 (Admin); [2006] 1 W.L.R. 308 (DC)
*Crim. L.R. 794 Over a period of time the defendant telephoned the constituency office of a Member
of Parliament to give vent to various financial and political grievances. If a member of staff answered
the telephone, that was whom he spoke to. If not, he spoke to the answering machine. On a number
of those occasions he made reference to people to whom he objected as “wogs”, “Pakis” and “black
bastards”. Of those who heard the messages, one had found the language upsetting, one had not
done so, and one had found it depressing. None of those people happened to be a member of an
ethnic minority. The defendant was charged with an offence contrary to s.127 of the Communications
Act 2003. That section provided that a person would be guilty of an offence if he sent or caused to be
sent by means of a public electronic communications network a message or other matter that was
grossly offensive or of an indecent, obscene or menacing character. The justices acquitted the
defendant on the ground that, while his messages had been offensive, a reasonable person would not
consider them grossly offensive. The prosecution appealed by way of case stated.
Held, dismissing the appeal, in order to determine whether a message was grossly offensive it was
necessary to judge it by the standards of an open and just multiracial society, which the justices
represented. Whether a telephone message fell within that category had to depend not only on its
content, but also on the circumstances in which the message had been sent and, at least as
background, on Parliament's objective in making the sending of certain messages a crime. In the
present case, the defendant had no idea and, evidently did not care, whether the person he was
addressing or who would pick up his recorded message would be personally offended--grossly
offended--by his abusive and intemperate language. It was his good fortune that none was, but that
was nevertheless a fact that the justices were entitled to take into account. So was the fact that it was
his Member of Parliament to whom he was trying to address his opinions. Nevertheless, had the
defendant found himself speaking on any of his calls to a member of an ethnic minority, it might have
been impossible, however stoically the hearer might have brushed it aside, to avoid the conclusion
that the message was grossly offensive. Such a conclusion would be loyal to Parliament's essential
objective of protecting people from being involuntarily subjected to grossly offensive messages. The
approach of the justices had not transgressed those principles and accordingly their decision to acquit
was unimpeachable.
[Reported by Dilys Tausz, Barrister]
John Lloyd-Jones for the prosecution.
Esther Harrison for the defendant.
*Crim. L.R. 795 Commentary. To hold that a message containing these words is not grossly offensive
is rather surprising. It is important to be clear about what the case decides. It is not an authority for the
proposition that words of this nature cannot be grossly offensive; merely that the words on the
particular facts of this case although offensive did not cross the threshold of “grossness”. As Sedley
L.J. observes, the requirement of grossness means that “some added value” must be given. Whether
the message crosses the boundary is to be determined by the trier of fact on an objective assessment
Page2

of all the circumstances, not just the content of the message. “Context is everything.” So, e.g. a
telephone discussion between advocates preparing this case involving the use of these words would
not be grossly offensive. But is this not because they lack mens rea ?
It should be noted that the offence is committed if the message “is” grossly offensive, which is not the
same as requiring that someone is proved to have been grossly offended by it. The court's comments
on the significance of the character of the hearer and his ethnicity might seem to contradict this
requirement that the offensiveness is to be objectively determined. However, once it is accepted that
the offensiveness of the message is to be evaluated by reference to all the circumstances not merely
its content, this factor must be relevant. It should not be the sole determinant. Similarly, the
defendant's intentions as to the effect of his message will be relevant but cannot be the sole
determinant of the degree of offensiveness. Section 127 is unclear what if any mens rea is required,
but it is submitted that D must at least intend or know that he is sending/causing to be sent the
message. It is submitted that it ought also to require D to intend or be reckless as to the potential
offensiveness.
European Convention on Human Rights. Although no reliance was placed on the Convention by the
advocates, the court was clearly influenced by Art.10 in concluding that the criminal offence in s.127
is restricted to cases where D transgresses the higher threshold of gross offensiveness rather than
mere offensiveness. It is clear that the European Court has accepted that the right to freedom of
expression in Art.10 is applicable not only to information or ideas that are “favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.
Such are the demands of the pluralism, tolerance and broadmindedness without which there is no
‘democratic society”’ (Sunday Times v United Kingdom (1979) 2 E.H.R.R. 245 and see recently, e.g.
Yankov v Bulgaria (2005) 40 E.H.R.R. 36 (breach of Art.10 where D prosecuted for private notes
criticising government officials)). In Redmond-Bate v DPP (1999) 163 J.P. 789, Sedley J. explained:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the
heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom
only to speak inoffensively is not worth having.” However, the European Court has also been clear
that the direct expression of racist views is not protected by Art.10: Jersild v Denmark (1995) 19
E.H.R.R. 1. It might be questioned whether the present case gave due weight to that qualification of
the Art.10 right and to the Art.8 rights of the individual receiving the unsolicited calls (although
significantly in this case the calls were made to an MP's office).
Menacing, indecent and obscene. The court offers obiter comments on the alternative forms of the
offence. It is suggested that a menacing message is one conveying a threat “which seeks to create a
fear in or through the recipient that something unpleasant is going to happen” (emphasis added). That
version of the offence is not restricted to a message which causes the recipient to fear for himself ,
but the intended or likely effect of the words on the recipient will “ordinarily *Crim. L.R. 796 be a
central factor in deciding whether the charge is made out.” Obscenity and indecency, it was
suggested, are also to be determined objectively having reference to contemporary standards of
decency: cf. Stamford [1972] 1 All E.R. 427 holding that the character of the addressee in a case of
indecent mail is irrelevant. On the different meanings that might attach to these terms in the related
offences dealing with postal packets, see C. Manchester, “Obscenity in the Mail” [1983] Crim.L.R. 65,
70 (discussing the Post Office Act 1953, now superseded by the Postal Services Act 2000). Indecent
is not limited to sexual matters, but it is doubtful that the words used in this case would be any more
readily found to be indecent than grossly offensive.
The offence lacks the degree of certainty and predictability in application that is desirable in any
crime. In this respect it shares the defect of so many of English law's low-level public order offences
based on vague concepts such as “insulting” and “offensive” which are determined retrospectively by
the trier of fact.
[D.C.O. ]
Crim. L.R. 2005, Oct, 794-796
© 2018 Sweet & Maxwell and its Contributors
由此

A A

HCMA960/2004
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C

COURT OF FIRST INSTANCE


D D
(Appellate Jurisdiction)
E MAGISTRACY APPEAL NO. 960 OF 2004 E

(ON APPEAL FROM ESCC 3247 OF 2004)


F F

---------------------
G G

BETWEEN
H H
HKSAR Respondent
I I
and
J J
CHAN PING KWAN (陳平群) Appellant
K ---------------------- K

L Before : Hon Nguyen J in Court L

Date of Hearing : 7 June 2005


M M
Date of Judgment : 14 June 2005
N N

-------------------------
O JUDGMENT O
-------------------------
P P
1. The appellant was convicted by Mr Eddie Yip sitting in Eastern
Q Magistrates’ Court of two offences of making a telephone call of a menacing Q

character, contrary to section 20(a) of the Summary Offences Ordinance,


R R
Cap. 228. Both charges alleged that he had sent, by telephone, a message
S of a menacing character to Madam Ng Fung Yin, the first call being on S

3 April 2004 and the second on 8 May 2004. He now appeals against the
T T
convictions.
U U

V V
由此

- 2 -
A A

2. At the trial the defendant was unrepresented. He gave


B B
evidence in his own defence and denied having telephoned the complainant
C on those two days. However, he admitted that on the first day, namely C

3 April, because it was the complainant’s birthday, he had borrowed the


D D
telephone of the daughter of a friend of his to send the complainant a
E birthday message. The magistrate accepted the complainant’s evidence E

and rejected that of the appellant and convicted him of both charges.
F F

G Grounds of appeal G

H 3. The 1st ground of appeal was that the learned magistrate failed H

to consider whether, at the time of the commission of the 1 st offence, the


I I
appellant had the necessary mens rea. The basis of this ground of appeal
J is that when the complainant gave evidence, she had mentioned that on the J

day in question, namely 3 April, the appellant sounded as if he had drunk


K K
alcohol and he was under the influence of the alcohol which is why she said
L she did not talk with him any further. Also the two defence witnesses who L

M
gave evidence about the party that the appellant attended on 3 April,
M
mentioned that on that evening, the appellant had consumed alcohol.
N N

O
4. Mr Chung, who appears for the appellant, submits that the two O
offences that the appellant is convicted of are offences which require a
P P
specific intent. It is submitted that because these offences were offences

Q which required a specific intent, voluntary intoxication could have been Q


relied upon by the appellant as a defence.
R R

S 5. Mr Chung relies upon the list of offences stated by the editors S

of Archbold Hong Kong 2005 at paragraph 16 - 77 as offences which only


T T
required a basic intent. These offences are :
U U

V V
由此

- 3 -
A A

B
(1) common assault;
B

(2) assault occasioning actual bodily harm and indecent assault;


C C
(3) manslaughter;
D
(4) assault on a police officer in the execution of his duty; D

E (5) the two offences against section 19 of the Offences Against the E

Person Ordinance;
F F
(6) taking a conveyance without the owner’s authority;
G (7) arson or criminal damage; G

H (8) arson or criminal damage involving an intention to endanger H


the life of another; and
I I
(9) rape.
J J
It is said that because the offence in question does not appear in this list it
K therefore requires a specific intent. K

L L
6. He also relied on the House of Lords’ case of R. v. Court
M [1989] 1 AC 28, where the House found that in an indecent assault charge, M

the prosecution had to prove “not only that the accused intentionally
N N
assaulted the victim, but that in doing so he intended to commit an assault
O which right-minded persons would think was indecent”. He, therefore, O

submits that even though the offence of indecent assault is committed when
P P
the indecent assault is perpetrated on the victim, the House of Lords held
Q Q
that the accused also had to have the intention to commit an assault which

R
right-minded persons would think was indecent, thereby requiring a specific R
intent.
S S

T T

U U

V V
由此

- 4 -
A A

7. I do not agree that what the House of Lords said in that case
B B
was intended to mean that the offence of indecent assault is an offence which
C requires a specific intent. Indeed, in the list mentioned above, indecent C

assault was stated as one of the offences which only required a basic intent.
D D

E 8. The offence that the appellant was convicted of is completed E

once it is proved that it was the appellant who had sent, by telephone, a
F F
message to the complainant and the message was of a menacing character.
G The mens rea which is required for this offence is simply that the appellant G

was aware that he was, by making the telephone call, sending a telephone
H H
message to the complainant. The other requirement of the mens rea
I necessary to substantiate this offence is that the appellant must have been I

J
aware that the message that he sent was of a menacing character. If, indeed, J
it was the appellant who was speaking to the complainant on the telephone,
K K
then quite clearly he would have been aware of what it was that he was

L
saying to the complainant and whether what he was saying was of a L
menacing character. In my view, therefore, the intent required for this
M M
offence is only a basic intent. That being the case, voluntary intoxication

N will not be a defence to the charges. If it was not a defence to the charges, N
then quite clearly there was no duty upon the magistrate to consider whether
O O
the defence of intoxication was applicable. Furthermore, even though the
P appellant was not legally represented at the trial, this defence was never P

raised at the trial and the defence that the appellant was relying upon was
Q Q
that he never made these telephone calls. Ground one therefore fails.
R R

9. The 2nd ground of appeal was quite simply that the magistrate
S S
was wrong in adjudicating that on 8 May, the appellant had said anything to
T the complainant which was of a menacing character. T

U U

V V
由此

- 5 -
A A

B B
10. I need not go into this ground in any detail, save to say that the
C magistrate in his Statement of Findings found that the complainant was an C

honest and reliable witness and that she was able to clearly identify the voice
D D
which was speaking to her on those two occasions. He also found that she
E had no reason whatsoever to fabricate her evidence against the appellant and E

she had nothing to gain by so doing.


F F

G 11. The magistrate having accepted the complainant’s evidence as G

truthful, it is quite clear that there was sufficient evidence for the magistrate
H H
to find that what the appellant was saying to the complainant on the second
I occasion was of a menacing character. Ground two also fails. I

J J
Conclusion
K K

L
12. The appeal against conviction is dismissed. L

M M

N N

O O
(Peter Nguyen)
Judge of the Court of First Instance,
P High Court P

Ms Lily Ho, SGC of Department of Justice, for HKSAR


Q Q
Mr Jerry Chung, instructed by Messrs Ho, Tse, Wai & Partners,
R for the Appellant R

S S

T T

U U

V V
132
[1970]

[HOUSE OF LORDS]

SWEET APPELLANT
AND
PARSLEY RESPONDENT

1968 Nov. 27, 28 ; Lord Reid, Lord Morris of Borth-y-Gest, B


Dec. 2, 3, 4 Lord Pearce, Lord Wilberforce and
1969 Jan. 23 Lord Diplock
Crime—Mens rea—Statutory offence—Drugs—Person " concerned
in management of" premises used for smoking cannabis—
Landlord not living on premises but retaining room and visiting
occasionally—Other rooms sublet to various tenants—Whether
landlord " concerned in the management of " premises used for *--
drug taking—Dangerous Drugs Act, 1965 (c. 15), s. 5.
By section 5 of the Dangerous Drugs Act, 1965:
"If a person—(a) being the occupier of any premises,
permits those premises to be used for the purpose of
smoking . . . cannabis resin . . . or (b) is concerned in
the management of any premises used for any such
purpose as aforesaid; he shall be guilty of an offence L»
against this Act."
The appellant, the sub-tenant of a farmhouse, let out
several rooms to tenants who shared the use of the kitchen. She
herself retained and occupied a bedroom. Later she gave up
living there, though she came occasionally to collect letters and
rent. On June 11, 1967, quantities of drugs, including cannabis
resin, were found in the farmhouse and the appellant was g
charged with being concerned in the management of premises
used for the purpose of smoking cannabis resin, contrary
to section 5 (i) of this Act. The appellant conceded that the
premises had been so used. The prosecutor conceded that she
did not know this. She was convicted of the offence.
Held, that the offence created by section 5 (b) was not an
absolute offence and the conviction should be quashed. The
words " used for the purpose " in section 5 (b) refer to the p
purpose of the management and mens rea is an essential
ingredient of the offence.
Mens rea is an essential ingredient of every offence unless
some reason can be found for holding that it is not necessary,
and the court ought not to hold that an offence is an absolute
offence unless it appears that that must have been the intention
of Parliament.
Per Lord Diplock: It is a general principle of construction ^
of any enactment which creates a criminal offence that, even
where the words used to describe the prohibited conduct would
not in any other context connote the necessity for any parti-
cular mental element, they are nevertheless to be read as subject
to the implication that a necessary element in the offence is the
absence of a belief, held honestly and on reasonable grounds,
in the existence of facts which, if true, would make the act
innocent (post, p. 163A-B). „
H
Reg. v. Tolson (1889) 23 Q.B.D. 168 approved.
Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303;
[1968] 2 All E.R, 356, H.L.(E.) considered.
Decision of the Divisional Court of the Queen's Bench
133
A.C. Sweet v. Parsley (H.L.(E.) )
Division [1968] 2 Q.B. 418; [1968] 2 W.L.R. 1360; [1968] 2
A All E.R. 337, D.C. reversed.

The following cases are referred to in their Lordships' opinions:


Attorney-General v. Lockwood (1842) 9 M. & W. 378.
Bank of New South Wales V. Piper [1897] A.C. 383, P.C.
Brend v. Wood (1946) 175 L.T. 306, D.C.
n Derbyshire v. Houliston [1897] 1 Q.B, 772, D.C.
B
Dyke v. Elliott. The " Gauntlet" (1872) L i t . 4 P.C. 184, P.C.
Lim Chin Aik v. The Queen [1963] A.C. 160; [1963] 2 W.L.R. 42; [1963]
1 All EJR.. 223, P.C.
M'Naghten's Case (1843) 10 CI. & F . 200.
Maher v. Musson (1934) 52 C.L.R. 100.
Pearks, Gunston & Tee Ltd. v. Ward [1902] 2 K.B. 1, D.C.
Proudman v. Dayman (1941) 67 C.L.R. 536.
C
Reg. v. Gould [1968] 2 Q.B. 6 5 ; [1968] 2 W.L.R. 643; [1968] 1 All E.R.
849 C A
Reg. v. To/son (1889) 23 Q.B.D. 168.
Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All
E.R. 356, H.L.(E.).
Rex V. W/ieaf; .Rex v. Stocks [1921] 2 K.B. 119, C C A .
Sherras v . De Rutzen [1895] 1 Q.B. 918, D.C.
D Thomas v. T/;e King (1937) 59 C.L.R. 279.
Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L.(E.).
Yeandel v. F i ^ e r [1966] 1 Q.B. 440; [1965] 3 W.L.R. 1002; [1965] 3
All E.R. 158, D.C.

The following additional cases were cited in argument:


j, Abbott v. Smith [1965] 2 Q.B. 662n.; [1965] 3 W.L.R. 362; [1964] 3 All
* E.R. 762.
Attorney-General v. Cray ford Urban District Council [1962] Ch. 5 7 5 ;
[1962] 2 W.L.R. 998; [1962] 2 All E.R. 147, C.A.
Barker v. Levinson [1951] 1 K.B. 342; [1950] 2 All E.R. 825, D.C.
Beaver v. The Queen [1957] S.C.R. 531.
Brentnall & Cleland Ltd. v. London County Council [1945] K.B. 115; [1944]
2 All E.R. 552, D.C.
F Burns v. Bidder [1967] 2 Q.B. 227; [1966] 3 W.L.R. 99; [1966] 3 All
E.R. 29, D.C.
Chajutin v. Whitehead [1938] 1 K.B. 506; [1938] 1 All E.R. 159, D . C
Clark v. Taylor (1948) 112 J.P. 439; [1948] W.N. 410, D.C.
Core v. James (1871) L.R. 7 Q.B. 135, D.C.
Cundy v. Le Cocq (1884) 13 Q.B.D. 207, D.C.
Donovan v. Gavin [1965] 2 Q.B. 648; [1965] 3 W.L.R. 352; [1965] 2 All
G E.R. 611.D.C.
Fletcher v. Birkenhead Corporation [1907] 1 K.B. 205, C.A.
Fraser v. BecfceW & Sterling Ltd. [1963] N.Z.L.R. 481.
Gaumont British Distributors Ltd. v. Henry [1939] 2 K.B. 711; [1939] 2
AH E.R. 808, D . C
Harding v. Pnce [1948] 1 K.B. 695; [1948] 1 All E.R. 283, D.C.
Hart v. Bex [1957] Crim.L.R. 622, D.C.
H Hearne v. Garton (1859) 2 E. & E. 66.
Hill v . Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R.
193, D.C.
Hobbs v. Winchester Corporation [1910] 2 K.B. 471, C.A.
134
Sweet v. Parsley (H.L.(E.) ) [1970]
Hughes v. Hall [1960] 1 W.L.R. 733 ; [1960] 2 All E.R. 504.
James & Son Ltd. v. Smee; Green v. Burnett [1955] 1 Q.B. 78; [1954] A
3 W.L.R. 631; [1954] 3 All E.R. 273, D.C.
Korten v. West Sussex County Council (1903) 72 LJ.K.B. 514, D.C.
Laird v. Dobell [1906] 1 K.B. 131, D.C.
Leicester v. Pearson [1952] 2 Q.B. 668; [1952] 2 All E.R. 71, D.C.
Lomas v. Peek (1947) 63 T.L.R. 593; [1947] 2 All E.R. 574, D.C.
Monssette v. United States (1951) 342 U.S. 246. fi
Moused Brothers Ltd. v. London & North-Western Railway Co. [1917]
2 K.B. 836, D.C.
Mullins v. Collins (1874) L.R. 9 Q.B. 292, D.C.
Parker v. ^Wer [1899] 1 Q.B. 20, D.C.
Patel v. Comptroller of Customs [1966] A.C. 356; [1965] 3 W.L.R. 1221 ;
[1965] 3 All E.R. 543, P.C.
Reg. v. Ball and Loughlin (1966) 50 Cr.App.R. 266, C C A .
C
Reg.v. Bishop (\%%0) 5 Q..B.V.259.
Reg. v. Cummerson [1968] 2 Q.B. 534; [1968] 2 W.L.R. 1486; [1968] 2
All E.R. 863, C.A.
Reg. v. Prince (1875) L.R. 2 C.C.R. 154.
Reg. v. 5/. Margaret's Trust Ltd. [1958] 1 W.L.R. 522; [1958] 2 All E.R.
289, CCA.
Reg. v. Softer [1968] 2 Q.B. 793 ; [1968] 3 W.L.R. 39; [1968] 2 All E.R.
951, C.A. D
Reg. v. Woodrow (1846) 15 M. & W. 404.
Rex v. Lo//ey (1812) Russ. & Ry. 237.
Rex v. Marsh (1824) 4 Dow. & Ry.K.B. 260.
Reynolds v. G. H. Austin & Sons Ltd. [1951] 2 K.B. 135; [1951] 1 All E.R.
606, D.C.
Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B. 116;
[1966] 3 W.L.R. 1223; [1966] 2 All EH. 340, C.A. E
Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458,
P.C.
Ware v. Fox [1967] 1 W.L.R. 379; [1967] 1 All E.R. 100, D.C.
Watson v. Coupland (1945) 175 L.T. 92; [1945] 1 All E.R. 217, D.C.
Young v. Buckles [1952] 1 K.B. 220; [1952] 1 All E.R. 354, C.A.
APPEAL from the Queen's Bench Division (Lord Parker C.J., Ashworth p
and Blain JJ.).
On July 21, 1967, a charge was made by the respondent, Edmund
Raymond Parsley, a sergeant of the Oxfordshire Constabulary, against the
appellant, Stephanie Sweet, that she on June 11, 1967, was concerned in
the management of certain premises which were used for the purpose of
smoking cannabis or cannabis resin, contrary to section 5 (b) of the
Dangerous Drugs Act, 1965. The Woodstock justices convicted the appel- G
lant. The Divisional Court of the Queen's Bench Division, having upheld
the conviction, she appealed to the House of Lords.
The facts, stated by Lord Reid, were as follows: The appellant was
convicted at Woodstock Petty Sessions on September 14, 1967, on a charge
that on June 16, 1967, she was concerned in the management of certain
premises at Fries Farm, Oxfordshire, which were used for the purpose of JJ
smoking cannabis contrary to section 5 (b) of the Dangerous Drugs Act,
1965. She was fined £25 and ordered to pay £12 18s. Od. costs. It appears
from the case stated by the justices that the tenant of this farm had sublet
135
A.C. Sweet v. Parsley (H.L.(E.) )
the farmhouse to her at a rent of £28 per four weeks. She was a teacher at
a school in Oxford and she had intended to reside in this house and travel
daily by car to Oxford. This proved to be impracticable so she resided in
Oxford and let rooms in the house at low rents to tenants allowing them the
common use of the kitchen. She retained one room for her own use and
visited the farm occasionally to collect her letters, to collect rent from her
tenants and generally to see that all was well. Sometimes she stayed
g overnight but generally she did not.
On June 16, while she was in Oxford, the police went to the premises
with a search warrant. They found receptacles hidden in the garden which
contained cannabis resin and L.S.D. They also found in the kitchen
cigarette ends containing cannabis, and an ornamental hookah pipe which
belonged to the appellant and which had, admittedly without her knowledge,
been used for smoking this substance.
C The justices found that:
" At the time of the search the appellant was not at the premises but
there was a mixture of people there of the ' beatnik fraternity' between
the approximate ages of 17 and 22 including three females."
They also found that the appellant
D " did not enter the rooms of tenants except by invitation and she had
no reason to go into their rooms. Her own room was occasionally
used in her absence by other persons who lived in the house. She had
no knowledge whatever that the house was being used for the purpose
of smoking cannabis or cannabis resin. Once or twice when staying
overnight at the farmhouse the appellant shouted if there was excessive
noise late at night but otherwise she did not exercise any control over
E the tenants except that she collected rent from them."
Rose Heilbron Q.C. and Ian Brownlie for the appellant. Absolute
liability should be kept within clearly defined limits.
The questions for the decision of the House of Lords are set out in the
order of the Queen's Bench Division dated May 13,1968:
F " (1) Whether section 5 (b) of the Dangerous Drugs Act, 1965, creates
an absolute offence. (2) What, if any, mental element is involved in
the offence; and (since leave to appeal is given in regard to (1) and (2)
above) (3) Whether on the facts found a reasonable bench of magis-
trates, properly directing their minds to the law, could have convicted
the appellant."
G It is submitted: (1) The authorities establish that, when a statutory
offence is created, there is a presumption that mens rea is implied and,
with certain limited exceptions, no one should be convicted of an offence
if he is morally blameless.
(2) By reason of the nature and consequences of a conviction of
this type of offence, when a person is blameless there should be limited
„ categories of absolute liability.
(3) These should depend on clearly stated tests and conditions.
(4) These categories should not be extended without clear and express
words in the section of the Act creating a new offence.
136
Sweet v. Parsley (H.L.(E.) ) [1970]
(5) The conditions and the reasons for which the court decided that
this was an offence of absolute liability are not the appropriate ones.
(6) In any event this section does not exclude the principle of mens
rea; its words are so wide as to be clearly within the principle.
(7) By designating this offence as one of absolute liability the Divisional
Court was extending the previously accepted categories.
(8) One of the chief objects or reasons for imposing absolute liability
is to convict a person who is, or should be, in a position to prevent the B
mischief aimed at by the statute.
(9) The object is or may be achieved by prosecuting a person who can
do this either by his own actions or by reason of his control over someone
whom he can or may influence.
(10) There is no warrant for extending this principle of absolute liability
to cover the case of a person whose actions are lawful but are said to
become unlawful only by reason of the act of some person or persons over G
whom he has no effective control.
(11) Some of the authorities indicate that there may be a half-way
house, a category of liability which could be termed strict rather than
absolute and to which the defence of mens rea could or should be
permitted.
(12) In such cases there is authority for the proposition that the burden rj>
of proof of mens rea may be placed on the defendant. So that unless he
proves no knowledge he can be convicted, while, if he does he is acquitted.
(13) The words " concerned in the management of any premises " ir.
section 5 of the Dangerous Drugs Act, 1965, connote, as in similar previous
Acts, an active or direct participation in the nature of a business or
enterprise.
(14) So, even if this were held to be an offence of absolute liability, the E
appellant was not concerned in the management of the premises.
Sections 33 and 34 of the Sexual Offences Act, 1956, dealing with
brothels, draw a great distinction between being a landlord and being a
manager. For a landlord to be liable he would have to take an active
part in managing the premises. " Management" means, not the acts which
a landlord does in the ordinary running of the premises, but the taking p
part in some activity. The phrase used in the Act of 1965 is similar to
that used in the Acts dealing with brothel keeping.
The Dangerous Drugs Acts go back to 1920: see also the Dangerous
Drugs Act, 1925. It was section 5 (d) of the Act of 1920 that made it
an offence to be " concerned in the management of any premises " used
for the purpose of the preparation of opium for smoking or for the sale
or smoking of prepared opium. That is the origin of the expression. G
It was not until section 9 (1) of the Dangerous Drugs Act, 1964, dealing
with cannabis that the words were applied to that drug.
Wardens of university hostels in day-to-day management of them are
far more intimately concerned with the management of those premises than
the appellant was concerned in the management of the premises in the
present case. If the decision of the Divisional Court is right, they would JJ
have no defence under this section. So, too, in the case of the headmaster
of a school, a prison governor or the manager of an hotel, since all are
concerned in management. Section 19 of the Act of 1965 provides an
137
A.C. Sweet v. Parsley (H.L.(E.) )
escape clause for company directors. But the housing manager of a local
authority would be within section 5 (b) if it was narrowly construed. All
this indicates that it was meant to be widely construed and that it was not
intended to create an absolute offence.
If section 5 (b) does not create an absolute offence, it may be that
section 20 (3) puts the burden on the defence. Section 8 deals with opium
and follows the similar section in the Act of 1920, and if one of the appel-
B lant's tenants had used opium she would, in the view of the Divisional
Court, have been equally liable to conviction: see also section 14.
The clear mischief at which this Act aims is the possession and sale
of dangerous drugs by penalising the persons who use them and the persons
who allow their premises to be used for purposes connected with the use
c
of dangerous drugs.
As to the meaning of " concerned in the management," see Yeandel v.
C FUsher [1966] 1 Q.B. 440, where the facts were very different from
those in the present case, when there was no evidence of " management."
A person " concerned in the management of . . . premises " is one who
either alone or with others has active control of premises for reward or
who is actively directing or participating in some business or enterprise or
activity carried on in these premises.
p In section 5 (Jb) of the Act of 1965 the word " knowingly " must be
implied. To connive or shut one's eyes amounts to passively allowing the
offence to take place. There is no reason why so rigorous a test as that
suggested by the Crown should be applied to a manager of premises, who
may be less intimately concerned with them than the occupier, since the
occupier may have more control over them than the manager.
The origin of the expression " concerned in the management" is section
E 5 (d) of the Act of 1920, dealing with opium. The whole section pre-
supposes a guilty mind. Otherwise " frequents any place " in section 5 (f)
would catch the gardener employed at a house used for opium smoking.
See also section 15 (1) of the Dangerous Drugs Act, 1951, and section 9
(1) of the Act of 1964. Section 10 of that Act uses the expression
" knowingly cultivates" any plant of the genus Cannabis. Compare
p section 5 and section 8 of the Act of 1965.
It is hard to find what crime the appellant committed unless " know-
ingly " is imported. Otherwise her crime is unlike most criminal acts and
of far wider range. She is, for instance, not in the position of a man
selling bad meat through his agents, even though he does not know it is
bad. To assist in the management of a brothel has never been an absolute
offence; absence of knowledge is a defence: see section 13 of the Criminal
G Law Amendment Act, 1885, amended by section 7 of the Criminal Law
Amendment Act, 1912, which added the words " or person in charge."
See also sections 33 et seq. of the Sexual Offences Act, 1956. In these
Acts the word " management" is linked with the compendious word
" brothel." In section 13 of the Act of 1885 " the tenant, lessee, or
occupier of the premises " must " knowingly " permit the premises to be
Ti so used. The concept of " management" comes into the Betting Acts
in connection with the management of betting offices and into the Income
Tax Acts.
Authorities on management are Donovan v. Gavin [1965] 2 Q.B. 648,
138
Sweet v. Parsley (H.L.(E.) ) [1970]
661; Abbott v. Smith [1965] 2 Q.B. 662n.; Attorney-General v. Crayford
Urban District Council [1962] Ch. 575, 585-586; Ware v. Fox [1967] 1 A
W.L.R. 379; Barker v. Levinson [1951] 1 K.B. 342 and Sherras V. de
flatten [1895] 1 Q.B. 918.
The appellant was really in the position of a landlord and in effect was
no different from any other landlord in charge of premises. There is no
evidence that she made any profit. She had no right to enter the tenants'
rooms or to refuse entrance to them or to their guests. If the offence B
were held to be absolute, the effect would be the opposite of deterrent in
that it would not encourage people to look for cannabis in their premises
because, if they found it they would be guilty in law.
As to absolute offences generally, a state of mind can be inferred
from the circumstances of a given case, and there is no reason to impute0
to Parliament an intention to create an absolute offence on the ground that
it may be hard to ascertain a state of mind. ^
As to this branch of the case, see Lim Chin Aik v. The Queen [1963]
A.C. 160,172; Reg. v. Gould [1968] 2 Q.B. 65, 73-74; Hobbs v. Winchester
Corporation [1910] 2 K.B. 471; Reg. v. St. Margaret's Trust Ltd. [1958]
1 W.L.R. 522; Reynolds v. G. H. Austin & Sons Ltd. [1951] 2 K.B. 135,
147-148, 149; Leicester v. Pearson [1952] 2 Q.B. 668 and Burns v. Bidder
[1967] 2 Q.B. 227. D
In some Factory Act cases absolute liability is imposed where the
words are clear, but this is not so in other categories. There are cases
where the state of affairs on given premises is lawful and only becomes
unlawful through the act of a third person even when the person in charge
of the premises has no control. There, absolute liability is not appropriate
because the person in charge of the premises could not so order his affairs
and his organisation as to prevent what happened. E
The tests of whether or not Parliament intended to impose an absolute
duty are set out in Mousell Brothers Ltd. v. London and North Western
Railway Co. [1917] 2 K.B. 836, 845-846—the words used, the nature of
the duty, the person on whom it is imposed, the person by whom it would
be performed, the person on whom the penalty is imposed. Other tests
are (1) whether the object of the Act would be rendered nugatory if the p
defendant were not convicted, and (2) whether the defendant is in a
position to influence the conduct of others so as to prevent a breach of the
Act. Every definition of a crime contains expressly or by implication a
proposition as to state of mind: Reg. v. Tolson (1889) 23 Q.B.D. 168, 187,
which was followed in Reg. v. Gould [1968] 2 Q.B. 65, which resolved
the conflict between that case and Rex v. Wheat [1921] 2 K.B. 119.
In some cases " knowingly " has not been required to be an ingredient *-"
of the offence: Cundy v. Le Cocq (1884) 13 Q.B.D. 207, 209; Chajutin v.
Whitehead [1938] 1 K.B. 506, 508-509; Reg. v. Cummerson [1968] 2 Q.B.
534. In other cases guilty knowledge has been required: Core v. James
(1871) L.R. 7 Q.B. 135, 137; Lim Chin Aik v. The Queen [1963] A.C.
160, 176, and Harding V. Price [1948] 1 K.B. 695, 703-704. In the latter
case it was held that the enactment in question relieved the prosecution JJ
from the burden of proving knowledge on the part of the defendant but
that it did not follow that he might not set up and prove lack of knowledge
as a defence. The present case is stronger than that case. In Sambasivam
139
A.C. Sweet v. Parsley (H.L.(E.) )
v. Public Prosecutor, Federation of Malaya [1950] A.C. .458 the words
"■ " to his knowledge " were implied in the definition of the offence: see also
Gaumont British Distributors Ltd. v. Henry [1939] 2 K.B. 711; Derbyshire
V. Houliston [1897] 1 Q.B. 772; Fraser v. Beckett & Sterling Ltd. [1963]
N.Z.L.R. 481, 486, 487 and Maher v. Musson (1934) 52 C.L.R. 100.
One must distinguish between the burden of establishing guilt, on the
one hand, and the evidential burden of establishing a prima facie case, on
g the other.
The first submission for the appellant is that for a conviction under
section 5 (b) of the Act there must be mens rea. The second submission
is that unless a defendant exculpates himself by showing that he did not
know and had no reason to suspect that the premises were being used in a
prohibited way he must be convicted. This half-way house is that Parlia-
ment did not intend to take away the defence that the defendant did not
C know this, but put on him the onus of proving that he did not know.
What magistrates and juries want shown is whether there is a defence and
what has been established by the evidence.
The difficulty about Warner's case [1969] 2 A.C. 256, is that it has been
treated as a decision that possession of drugs is an absolute offence and
that the defendant must be convicted unless he proves himself innocent.
D Before Reg. v. Prince (1875) L.R. 2 C.C.R. 154 absolute liability was
only imposed when there were very strong reasons. Now the reasons
demanded are less strong. The magnitude of the social problem is not a
satisfactory test. Murder also is a grave social problem and so is unlawful
wounding, yet they are not absolute offences. The primary test is not
the surrounding circumstances of the social evil: see Reg. v. St. Margaret's
Trust Ltd. [1958] 1 W.L.R. 522 and James & Son Ltd. v. Smee [1955] 1
E Q.B. 78, 93. In Parker v. Alder [1899] 1 Q.B. 20, 25 and Hart v. Bex
[1957] Crim.L.R. 622, 623> there was technical guilt but the court expressed
regret at the prosecution.
In Leicester v. Pearson [1952] 2 Q.B. 668 the court qualified what
on the face of the wording of a regulation appeared to be an absolute
offence, but in Hughes v. Hall [1960] 1 W.L.R. 733 on a similar regulation
p the court reached a different result. But in Burns v. Bidder [1967] 2
Q.B. 227, 231, 241 it was held that Leicester v. Pearson [1952] 2 Q.B. 668
had not been overruled: see also James <fe Son Ltd. v. Smee [1955] 1
Q.B. 78, 89 which turned on control, whereas control is entirely absent in
the present case. Hearne v. Gorton (1859) 2 E. & E. 66 indicated that a
person should not be held liable for the act of one over whom he has no
control.
G Parker v. Alder [1899] 1 Q.B. 20 does not stand with the other autho-
rities: see also Watson v. Coupland (1945) 175 L.T. 92; Brentnall &
Cleland Ltd. v. London County Council [1945] K.B. 115 is distinguishable
because the court held that the defendants were delegating their respon-
sibility of delivering coal to their agents.
laird v. Dobell [1906] 1 K.B. 131 which followed Korten v. West
JJ Sussex County Council (1903) 72 LJ.K.B. 514 is no longer good law.
These are the only cases which could be said to be against the contention
that the defendant is not liable if the primary offender is a person over
whom he has no control.
140
Sweet v. Parsley (H.L.(E.) ) [1970]
If one imported the concept of negligence into the statute (the first time
such a thing had been done) adopting the standard of a reasonably careful
landlord, that would apply to the case of the master of a college or the
warden of a hostel, or the governor of a prison. Being " concerned in the
management" of premises brings in, not only the landlord, but also all
his servants or agents and on the respondent's contentions would import
into the Act a liability so wide that no one would know where he was.
But this is a penal statute and liability under it must be clear, which it B
would not be if the concept of negligence were imported into the Act.
Anyone who took a drug addict as tenant would be put on inquiry.
The concept of management may be narrowed to a club or a public
house, where the manager has full control of the place. That would cover
very few people: see Yeandel's case [1966] 1 Q.B. 440 and would not
cover an hotel manager. That case was referred to in Warner's case,
[1969] 2 A.C. 256, 296. Even on the criterion that a public house keeper ^
must take due care, he might still defend himself on the ground that he
did take due care but could not detect someone smoking in a corner
something which looked like a cigarette but was really cannabis. One
should interpret a statute in such a way that it does not lead to absurdity.
As to construction of statutes, see Fletcher v. Birkenhead Corporation
[1907] 1 K.B. 205, 213. For a conviction knowledge is necessary (see D
Warner's case [1969] 2 A.C. 256, 306) or at least wilful blindness, shutting
one's eyes to the obvious. Negligence is not enough.
As to mens rea, which may mean several different things, the principles
laid down in Reg. v. Tolson (1889) 23 Q.B.D. 168, 185, 188, 191 apply:
see also Thomas v. The King (1937) 59 C.L.R. 279, 309, 311, 311-312.
It is hard to say why one should take (a) the reasonable construction
of this Act and (b) the natural meaning of the words, without allowing E
any presumption that it should be construed in favour of the accused. If
one were looking for the intention of Parliament, one would look to see,
not whether it was intended to create an absolute offence but what it was
that Parliament was trying to stop. When words are doubtful, as the
words are here, it is necessary to look at the intention of Parliament, which
was to penalise the possession of drugs. To achieve this end it is not p
necessary that section 5 (b) should create an absolute offence.
In Reg. v. Tolson 23 Q.B.D. 116 the Crown established a prima
facie case against the accused that she had infringed the terms of the
statute relating to bigamy unless she had reasonable grounds to believe
that her husband was dead. The terms of the Act were closer to being
absolute than those of the Act in the present case. It was there said that,
if the defendant produced no explanation, she must be held to have infringed G
the Act, but she showed that she had no guilty intent because she believed
on reasonable grounds that her husband was dead. The case established
that what the defendant did was in fact innocent and would only have
become guilty if she had a guilty mind: see also Proudman v. Dayman
(1941) 67 C.L.R. 536, 540. In this context the word " burden " is not
very apt nor is "onus," which has acquired a special meaning from JJ
Woolmington v. Director of Public Prosecutions [1935] A.C. 462. What
Dixon J. was saying in Proudman V. Dayman 67 C.L.R. 536 was that,
although the burden is on the prosecution, it lies on the accused to raise
141
A.C. Sweet v. Parsley <H.L.(E.))
a defence, if it is a defence, so that in such a case the defendant must
prove lack of guilty knowledge or guilty intent. The defendant must then
introduce it, because often it could not be within the knowledge of the
prosecution. There is a category of absolute offences in which the lack
of guilty knowledge does not entitle to an acquittal. In other cases the
offences are not absolute but the liability is strict. There the prosecution
can establish a prima facie case but the defendant can exculpate himself
B by proving lack of guilty knowledge.
As to the meaning of " used for the purposes," see Young v. Buckles
[1952] 1 K.B. 220, section 36 of the Sexual Offences Act, 1956, and
Donovan v. Gavin [1965] 2 Q.B. 648. The phrase can connote a course
of events. One would have thought it meant a general or substantial
purpose, although in section 5 (b) of the Act of 1965 there is nothing
explicit to exclude the smoking of one cannabis cigarette. The "purpose"
must be the smoker's purpose and that the manager must be " concerned "
in it. As to the management of premises, see Yeandel v. Fisher [1966]
1 Q.B. 440.
Ian Brownlie following. When the language of a statute is ambiguous, •
one may resolve the ambiguity and find a guide to Parliament's intentions
by reference to its terms and to the history of the legislation and to any
D treaties with which the Act is connected: Salomon v. Commissioners of
Customs and Excise [1967] 2 Q.B. 116.
The background of the Dangerous Drugs Acts, 1964 and 1965, was the
Single Convention on Narcotic Drugs signed at New York on March 30,
1961 (Cmnd. 1580). It is to be presumed that Parliament did not intend
the provisions of the Acts to conflict with the obligations of the Crown.
j. From the Dangerous Drugs Act, 1920, the legislation has always been
connected with treaties by which the Crown was bound: see the Convention
between Great Britain, China, etc., regulating the trade in, and controlling
the use of opium, morphia and cocaine, signed at The Hague on January 23,
1912. (British and Foreign State Papers, 1912, Vol. 105.)
In section 11 (1) of the Act of 1964 the Convention of 1961 is referred
to: see articles 7, 28, 29 and 30 of the Convention. Particular reliance is
F placed on the words " committed intentionally " in article 30 (1). Though
not conclusive, they are a significant factor in the interpretation of the
Acts. It would be reasonable to infer a limitation to cases of mens rea:
see Reynolds' case [1951] 2 K.B. 135,150-151.
Douglas Draycott Q.C. and R. A.M. C. Talbot for the respondent. A
person " concerned in the management of any premises " is one who is
Q immediately responsible for their conduct and who has the power to say
who may come into the premises and how long that person shall stay and
what shall or shall not be done on the premises.
The following propositions are submitted: (1) Section 5 (b) of the
Dangerous Drugs Act, 1965, is meant not only to punish, but also to
bring pressure to bear on persons concerned in the management of premises
to ensure in the interests of public welfare that the provisions of the statute
are observed.
(2) In the case of statutory offences, unless the statute expressly or
by implication excludes mens rea, it is a necessary ingredient of the offence.
142
Sweet V. Parsley (H.L.(E.) ) [1970]
(3) On the true construction of section 5 (b) of the Act, the presumption
of mens rea has been displaced.
(4) (a) If mens rea is an ingredient of the offence created by section 5
(b), then in order to give effect to the presumption section 5 (b) must be
read as follows:
" . . . is concerned in the management of any premises which he
knows or ought to know or has reason to suspect are being used for
any such purpose as aforesaid . . . " "
(b) In order to give effect to the half-way house theory, the subsection
must be read as follows:
" . . . is concerned in the management of any premises used for any
such purpose as aforesaid shall be guilty of an offence against this
Act unless he proves that the act constituting the offence took place Q
without his knowledge or consent."
(5) On the facts found the magistrates were entitled to find that the
appellant was concerned in the management of the premises.
As to proposition (1), see Dean Roscoe Pound on The Spirit of the
Common Law, p. 52, quoted by Lord Reid in Warner's case [1969] 2 A.C.
256, 276-277 and by Devlin J. in Reynolds' case [1951] 2 K.B. 135, 149. jy
It has always been quoted with approval in connection with this type of
legislation. What was said in Lim Chin Atk v. The Queen [1963] A.C.
160, 174 is also an accurate statement in relation to this proposition: see
also Pearks, Gunston & Tee Ltd. v. Ward [1902] 2 K.B. 1, 11.
Maher v. Musson (1934) 52 C.L.R. 108 was decided before Wool-
mington's case [1935] A.C. 462 and so Dixon J. did not have the advantage
of it. As to the Australian cases, see the article on " Strict Responsibility ^
in the High Court of Australia " by Colin Howard (1960) 76 Law Quarterly
Review 547. It refers to the half-way house of incorporating into the
criminal law the concept of responsibility for negligence. It indicates the
approach of which one must be aware in reading the Australian cases.
If there was a presumption of mens rea in this class of case, it has been
whittled down in recent years. Over many years food, drugs and liquor F
has been a field in which Parliament has been apt to create absolute
offences, although mens rea has not disappeared. Absolute offences and
mens rea sometimes occur in the same Act. Legislation of this kind affects
public health and considerable difficulties face prosecutors in this field,
so that from time to time the legislature takes the view that certain acts
are so odious and undesirable that they must be absolutely forbidden. For
example, in Reg. v. Ball and Loughlin (1966) 50 Cr.App.R. 266 no blame
attached to the driver. Hill V. Baxter [1958] 1 Q.B. 277 seems to be at
the root of the recent cases where there have been convictions without
there being a guilty mind. Mechanical defects, epileptic fits, bees and
wasps have been recognised as providing defences to charges of dangerous
driving because in the circumstances the defendant could not be said to
be driving at all, but apart from that no defence to the statutory charge
has been allowed. But the appellant in this case does not fall within the
category of a " luckless victim " and was properly convicted.
143
A.C. Sweet v. Parsley (H.L.(E.) )
However carefully Acts are drafted there may be luckless victims. One
could be a luckless victim within the decision in Warner's case [1969] 2
A.C. 256. Suppose A asks B to go to the chemist with a prescription for
a sleeping draught. B goes innocently without knowing that A and the
chemist are in league, so that on seeing the prescription the chemist puts
liquid LSD into the bottle. B, carrying the bottle, is stopped by the police
and is found in possession of the prohibited substance. He knows it is a
B drug, but is mistaken as to its nature. Under Warner's case he would
have no defence, although the Act was not drafted to catch that sort of
person. Yet, because there may be a chance in a million of such a case
occurring that is no argument for not saying that Parliament intended to
create an absolute offence.
As to proposition (2), despite the language used in many cases, the
courts have not departed from this fundamental principle. The real
^ question which a court must consider is: Has the necessity for mens rea
been displaced? Reg. v. Tolson 23 Q.B.D. 168 is the recognised highlight
of the principle. When it was decided Reg. v. Woodrow (1846) 15 M. &
W. 404 had already begun to make inroads into the principle: see also
Bank of New South Wales v. Piper [1897] A.C. 383, 389; Patel v. Comp­
troller of Customs [1.966] A.C. 356, 361 is a recent authority of very
D great weight on the construction of such a statute as this.
Any other view than the prosecution's would render the Act ineffective
from a practical standpoint. The only practical way for Parliament to
avoid absolute offences is to transfer the onus. That is for Parliament to
do and it has not chosen to do so here. Here there is a broad prohibition.
In the end one must look at the words of the Act and, applying the rules
of construction, find what Parliament meant. If one looked at anything
E else, the whole matter would be one of conjecture. It is not open to
any court to legislate rather than interpret. It is all a question of what
Parliament meant in the particular Act. In James & Son Ltd. v. Smee
[1955] 1 Q.B. 78 the regulations contained both absolute and non-absolute
offences.
If " knowingly " is omitted from the enactment one may ask oneself
p why Parliament has omitted a word which it could well have included.
In some cases it may be that it was unnecessary, but in other cases the
omission may be significant and the court may come to the conclusion
that it was deliberate: Lomas v. Peek (1947) 63 T.L.R. 593, 594; Yeandel
v. Fisher [1966] 1 Q.B. 440, 447 and Reg. v. Bishop (1880) 5 Q.B.D.
259, 261. This last is a strong case. None of the judges had any doubt
on the question of knowledge.
G One should look carefully at an Act to see whether or not the normal
presumption has been displaced. But in a matter of construction the mere
fact that there is a penal section which provides for imprisonment does
not in itself decide anything.
Acts such as this provide for the control of premises managed.
Managers have always been treated in the interests of public safety as a
JJ special class, not part of the general public. In contrast with the public,
they take on a special occupation and must be treated as having special
responsibilities beyond those of the general public. The question of con-
trol arises in this way. It may be asked what was the use of prosecuting
144
Sweet v. Parsley (H.L.(E.)) [1970]
this appellant if she did not know what was going on at the premises. .
A
But if the house continued to be used to smoke cannabis and she con-
tinued to allow people of the beatnik fraternity to smoke there, the courts
would take a different view of the next prosecution. In cases of gaming
houses the manager is brought before the court. If he has made an
honest mistake the first time, the court is on inquiry the next.
The danger of cannabis smoking is that, unlike the use of other drugs,
it is a casual offence which can be committed just as an ordinary cigarette B
is smoked. The legislation dealing with cannabis resin must be taken to
have taken into account the nature of the offence, the type of person
who uses the substance and the circumstances in which it is normally used.
In construing any section one must have reference to the particular offence
at which it is aimed. In the case of opium smoking one needs some para-
phernalia. It is the casualness with which cannabis can be absorbed that
makes it dangerous.
This appellant let a remote farmhouse to people of both sexes of the
beatnik fraternity. There are two things which such people could get up
to in such a place and one of them is taking drugs. Beatniks adopt a
way of life which rejects all convention. Their long hair and neglect of
washing is a way of exhibiting that rejection, a mark of their not regarding
themselves as bound by the ordinary morals of the community. One jy
would not be surprised if in a remote farmhouse they indulged in sex and
drugs.
This Act is aimed at the thoughtless and is meant to make people
observe their duties to society. This appellant let the premises and collected
the rent and her attitude was that what the tenants got up to when she
was not there was no business of hers. But if one lets premises to people
who are known as a matter of common sense to be likely to behave as E
these people did, one does so at one's peril. The Act is putting pressure
on people who let premises to ensure that its provisions are observed.
It has been said that, do what one will as the manager of a lodging
house, someone may smoke cannabis on the premises. But the merit of
this enactment is that it puts those who manage premises under pressure
not to act without responsibility as the appellant did. The Act is meant, p
not merely to punish the vicious, but to put pressure on the thoughtless
and the inefficient to do their duty.
With this type of legislation there is a margin of risk that an innocent
person may be convicted. But if the Dangerous Drugs Act is to be
effective, it must contain severe penal provisions, so as to make managers
of premises mindful of their duties under the Act. That is not achieved
by exhortation. If a person manages premises he should not let them &
to persons whom he ought to suspect are addicts. This appellant never
applied her mind to the problem at all as she should have done. To let
persons of the type here described into a house where there is no super-
vision is in effect to say that what they do there is their own affair. It is
in the interests of society that such managers as the appellant should be
put on risk. That is the position of the managers of gaming establish- JJ
ments, who are deliberately put on risk in the interests of proper control.
Often one of them, when he is prosecuted for the first time, may say that,
if he had known what was going on, he would have put a stop to it, and
145
A.C. Sweet v. Paisley (H.L.(E.) )
then a small fine is usually imposed. But it does bring him to the attention
of the courts.
As to the question whether or not a house is being managed, that is
a question of fact. The ordinary domestic dwelling-house is not being
managed. But if one makes a business of taking in lodgers and letting
flats or rooms, one is managing the premises. The appellant sublet the
premises or had lodgers. That is the sort of evidence on which the court
B can say that the premises were being managed. Various kinds of premises
are " managed," for example, brothels.
It is impossible to devise a bold prohibition so that someone will not
be made a luckless victim. The courts must recognise that sort of case
when it comes along. If the majority of managers are not brought in, a
great gap will be left in the Act. It is designed to bring managers to heel
in the first instance and to take a more severe view of any later offence.
C It seeks to make managers aware of their duties, so that they will try to
prevent the smoking of cannabis. Without such a prohibition as that in
section 5 (b) there could be no enforcement in the case of this type of
offence.
As to mens rea, see Reg. v. Cummerson [1968] 2 Q.B. 534, 541-542,
and Reg. v. Salter [1968] 2 Q.B. 793, 801. The court can take a wide
£> look round to see the context in which Parliament was enacting the
prohibition, so as to see whether it is repugnant to deduce that an absolute
offence was intended to be enacted. Parliament's intention can only be
deduced from what Parliament said. It must be taken to have meant
what it said and a court cannot look at the words of the Act in greater
depth. If Parliament did not say what it meant, the remedy is in its own
hands and not those of the court. Parliament here has expressly and
E impliedly displaced the usual requirement of "knowingly." In reaching
that conclusion there are several factors, no one of which is individually
decisive: see Mullirts v. Collins (1874) L.R. 9 Q.B. 292, 295.
As to proposition (3), from section 19 of the Act of 1965 it is clear
that Parliament had in mind that " person " in section 5 should include a
limited company. A company is " concerned" through its servants or
p agents: see James & Son Ltd. v. Smee [1955] 1 Q.B. 78. By section 19
the chairman and every director of a company may exonerate themselves
by proving that they had no knowledge. When there is in an Act a section
which, while creating an offence, provides an escape clause which shifts
the onus of proof, it becomes more difficult to infer such a half-way
house in other sections, because the possibility was evidently present to
the mind of the draftsman, who expressed it when he meant to do so.
G Thus, finding section 5 (b) expressed in the widest possible terms, one has
good reason to think that it displaces the normal presumption of mens rea.
That is how one approaches section 5 (a), the terms of which embrace a
wide class of the community. Neither part of this section presupposes the
presence of the occupier or the manager for a substantial period of time.
The section is in wide terms and the permission with which it is concerned
TT is the permission to smoke cannabis on the premises.
As to the possibility of a conviction without proof of mens rea under a
penal statute, see Dyke v. Elliott. " The Gauntlet" (1872) L.R. 4 P.C. 184,
191, adopted in Russell on Crime, 12th ed. (1864), Vol. I, p. 66. Acts must
A.C. 1970. 6(1)
146
Sweet v. Parsley (H.L.(E.)) [1970]
be construed according to their plain, literal and grammatical meaning: .
Attorney-General v. Lockwood (1842) 9 M. & W. 378, 398. In consider- A
ing whether the presumption of mens rea has been displaced one must
have regard to the plain meaning: see Beaver v. The Queen [1957] S.C.R.
531, 538-539, 549.
In section 5 (b) " concerned in the management" relates to the premises
and not to their use. If it related to " premises . . . used for the purpose,"
then to obtain a conviction it would have to be proved that the premises B
were " used " in the sense that an opium den is used. If section 5 (b) were
confined to premises where people habitually smoked cannabis, its scope
would be reduced to a pinhead. A course of conduct is not necessary.
In section 5 (6), in contrast to section 5 (a), one is dealing with a com-
paratively small managerial class, who engage in the activity to get money.
The person is managing the enterprise which is on the premises. The
person aimed at is the person who terminates the tenancy. In the case ^
of a block of flats the person " concerned in the management" is not the
porter but the person to whom he reports. Such a person is one above
menial duties. Similarly the rent collectors in council flats report back to
the council. The test for the purposes of the Act is the question who is
responsible, who has the power to say what shall go on in the premises.
Such a definition would exclude persons in subordinate capacities. The Act TJ>
is practical and is meant to deal with a practical situation. If the accused
is a company which is convicted, section 19 comes into play and everyone
concerned in its management is guilty. In the case of licensed premises
the licensee, and not the brewers, who are the landlords, is the usual
target of the legislation because it is he who is actually conducting the
business on the premises. If one makes a habit of letting properties, one
is concerned in their management, but not if one lets one's house during "
the holidays while one is away.
If cannabis were smoked in a flatlet in a house so divided the landlord
would not be within section 5 (b) because each tenant is in his own little
castle. But it would be otherwise in the case of a landlady letting lodgings.
It depends on whether the tenant is responsible for his own interior.
The reason for section 5 (b) is that unless people observe their duties p
under the Act the smoking of cannabis would be a daily occurrence. The
appellant was at least thoughtless and did not apply her mind to the Act.
Section 27 (2) of the Dangerous Drugs Act, 1965, keeps alive the
Dangerous Drugs (No. 2) Regulations 1964 (S.I. 1964 No. 1811). In
regulation 20 "possession" is defined. Section 8 of the Act of 1965
includes offences with an element of knowledge and (d) must be construed
as an absolute offence. G
As to the liability of limited companies, see Brentnall & Cleland Ltd.
v. London County Council [1945] K.B. 115, 119-120. Under section 19
of the Act of 1965 a company may be convicted but by a transfer of onus
the individual directors can escape. If the same effect was intended
in section 5 (b), it is strange that similar words were not used.
As to "frequenting," see Clark v. Taylor (1948) 112 J.P. 439. H
As to proposition (4) (a), this carries the appellants' argument to its
logical conclusion. Looking at the wording of section 5 (b) and comparing
it with that of section 5 (a), one asks whether the absence or the presence
147
A.C. Sweet v. Parsley (H.L.(E.))
of knowledge is of significance. To read a dozen words into section 5 (Jb)
comes close to redrafting it. As it stands, there is a bold prohibition and
if effect is to be given to the presumption of mens rea a lot must be read
into it. The respondent relies strongly on Patel's case [1966] A.C. 356,
364-365.
The reason why licensed premises are so well conducted is that the
courts have direct control over them.
B The proper approach to section 5 (b) is to say that where it is proved
that a person is concerned in the management of premises, the next step
for the prosecution is to show that they were used for the smoking of
cannabis. It is right that the appellant should fall within section 5 (b) so
that, if she is brought to court again she should not be able to avail
herself of the circumstances which enabled her to plead ignorance before.
When an absolute offence is created there is always a danger that an
*-" innocent person may be convicted. If the Act creating it has a large
mesh, many will get away who should have been convicted, and one will
fail to cope with the evil. It is better that there should be a fine mesh,
since the court can give the innocent an absolute discharge. The Australian
courts have got themselves out of the difficulty of saving the innocent fish
in the net by turning their back on Woolmington's case [1935] A.C. 462
D and incorporating into their criminal law the concept of negligence, so
that a defendant is acquitted if he can show that he was not negligent:
see " Strict Responsibility in the High Court of Australia" by Colin
Howard (1960) 16 Law Quarterly Review 547, 548, 566. It is dangerous
to take at their face value judgments in Australian courts when part of their
basis may be this concept of negligence.
It is not for the courts to get Parliament out of a difficulty of its own
E creation, nor for Parliament to pass an imperfect Act and leave the rest to
the court. The court should declare the law and, if necessary, deplore it
but it should not mangle or twist the grammatical construction of an Act
to save an innocent victim, while frustrating the purpose for which the
Act was passed.
As to the history of absolute offences, see Reg. v. Bishop (1880) 5
F Q.B.D. 259; Reg. v. Prince (1875) L.R. 2 C.C.R. 154; Rex v. Lolley
(1812) Russ. & Ry. 237; Reg. v. Woodrow (1846) 15 M. & W. 404;
Attorney-General v. Lockwood (1842) 9 M, & W. 378 and Rex v. Marsh
(1824) 4 Dow. & Ry. K.B. 260. After Reg. v. Woodrow (1846) 15 M. &
W., 404 there were many cases of absolute offences: see also Morissette v.
United States (1951) 342 U.S. 246, 249-260.
As to proposition 4 (b) regarding the half-way house: see Warner's
G case [1969] 2 A.C. 256, 303. That is the correct approach to Woolming­
ton's case [1935] A.C. 462 which represents the law as it stands today and
stated the law as it has always been. On the law as it stands the onus can-
not be transferred. Reg. v. Salter [1968] 2 Q.B. 793, 801-802 provides an
example of how the courts interpreted an Act containing some such words
as those in italics in the proposition. It is the recognised practice of Parlia-
TT ment to include a transfer of onus clause expressly when it so intends. Such
a clause should not be inferred. It is easy for Parliament to deal with
this situation and hard for the courts, because such a clause can only
be inferred by reading into the section words which are not there.
A.C. 1970. 6(2)
148
Sweet v. Parsley (H.L.(E.) ) [1970]
As to proposition (5), here one must find what the facts were: (a) The
tenancy was in the appellant's name and she was the tenant, (b) She let
rooms at a rent determined by the number of tenants, (c) She retained
and occupied the bedroom in which the pipe was found. In her absence
she allowed people to occupy that room or, anyhow, did not lock it.
(d) There was a common use of the kitchen in which the cigarette ends
were found, (e) She visited the premises about once a week and sometimes
stayed overnight, which shows that she was in touch, (f) When a room B
was vacant she usually arranged for someone else to move in. (g) She
accepted tenants and would have been the person to give notice to unsuit-
able tenants, (h) Once or twice she exercised control and shouted to
people when there was too much noise at night, (i) She collected the
rents under the tenancy agreements, (j) She was responsible to the ground
landlord for maintaining the interior of the premises in clean and good
condition, (k) She said that she more or less " kept tabs " on the tenants.
(1) She controlled and directed the house and administered its affairs.

Their Lordships took time for consideration.

Jan. 23, 1969. LORD REID stated the facts and continued: My Lords,
a Divisional Court dismissed her appeal, holding that she had been D
concerned in the management of those premises. The reasons given for
holding that she was managing the property were that she was in a position
to choose her tenants: that she could put them under as long or as short
a tenancy as she desired: and that she could make it a term of any letting
that smoking of cannabis was not to take place. All these reasons would
apply to every occupier who lets out parts of his house or takes in lodgers
or paying guests. But this was held to be an absolute offence, following the ^
earlier decision in Yeandel v. Fisher [1966] 1 Q.B. 440.
How has it come about that the Divisional Court has felt bound to reach
such an obviously unjust result? It has in effect held that it was carrying
out the will of Parliament because Parliament has chosen to make this an
absolute offence. And, of course, if Parliament has so chosen the courts
must carry out its will, and they cannot be blamed for: any unjust p
consequences. But has Parliament so chosen?
I dealt with this matter at some length in Warner's case [1969]
2 A.C. 256. On reconsideration I see no reason to alter anything
which I there said. But I think that some amplification is necessary.
Our first duty is to consider the words of the Act: if they show a
clear intention to create an absolute offence that is an end of the matter.
But such cases are very rare. Sometimes the words of the section which G
creates a particular offence make it clear that mens rea is required in one
form or another. Such cases are quite frequent. But in a very large number
of cases there is no clear indication either way. In such cases there has for
centuries been a presumption that Parliament did not intend to make
criminals of persons who were in no way blameworthy in what they did.
That means that whenever a section is silent as to mens rea there is a JJ
presumption that, in order to give effect to the will of Parliament, we must
read in words appropriate to require mens rea.
Where it is contended that an absolute offence has been created, the
149
A.C Sweet v. Parsley (H.L.(E.) ) Lord Reid
words of Alderson B. in Attorney-General v. Lockwood (1842) 9 M. & W.
A
378, 398 have often been quoted:
"The rule of law, I take it, upon the construction of all statutes, and
therefore applicable to the construction of this, is, whether they be penal
or remedial, to construe them according to the plain, literal, and
grammatical meaning of the words in which they are expressed, unless
that construction leads to a plain and clear contradiction of the apparent
B purpose of the Act, or to some palpable and evident absurdity."
That is perfectly right as a general rule and where there is no legal
presumption. But what about the multitude of criminal enactments where
the words of the Act simply make it an offence to do certain things but
where everyone agrees that there cannot be a conviction without proof of
mens rea in some form? This passage, if applied to the present problem,
C would mean that there is no need to prove mens rea unless it would be " a
plain and clear contradiction of the apparent purpose of the Act" to
convict without proof of mens rea. But that would be putting the presump-
tion the wrong way round: for it is firmly established by a host of autho-
rities that mens rea is an essential ingredient of every offence unless some
reason can be found for holding that that is not necessary.
D It is also firmly established that the fact that other sections of the Act
expressly require mens rea, for example because they contain the word
"knowingly," is not in itself sufficient to justify a decision that a section
which is silent as to mens rea creates an absolute offence. In the absence of
a clear indication in the Act that an offence is intended to be an absolute
offence, it is necessary to go outside the Act and examine all relevant
circumstances in order to establish that this must have been the intention
E of Parliament. I say " must have been " because it is a universal principle
that if a penal provision is reasonably capable of two interpretations, that
interpretation which is most favourable to the accused must be adopted.
What, then, are the circumstances which it is proper to take into
account? In the well known case of Sherras v. De Rutzen [1895] 1 Q.B. 918
Wright J. only mentioned the subject matter with which the Act deals. But
p he was there dealing with something which was one of a class of acts
which " are not criminal in any real sense, but are acts which in the public
interest are prohibited under a penalty " (p. 922). It does not in the least
follow that when one is dealing with a truly criminal act it is sufficient
merely to have regard to the subject matter of the enactment. One must
put oneself in the position of a legislator. It has long been the practice to
recognise absolute offences in this class of quasi-criminal acts, and one can
G safely assume that, when Parliament is passing new legislation dealing
with this class of offences, its silence as to mens rea means that the old
practice is to apply. But when one comes to acts of a truly criminal
character, it appears to me that there are at least two other factors which
any reasonable legislator would have in mind. In the first place a stigma
still attaches to any person convicted of a truly criminal offence, and the
JJ more serious or more disgraceful the offence the greater the stigma. So he
would have to consider whether, in a case of this gravity, the public interest
really requires that an innocent person should be prevented from proving
his innocence in order that fewer guilty men may escape. And equally
150
Lord Reid Sweet v. Parsley (H.L.(E.)) [1970]
important is the fact that fortunately the Press in this country are vigilant
to expose injustice and every manifestly unjust conviction made known to
the public tends to injure the body politic by undermining public confidence
in the justice of the law and of its administration. But I regret to observe
that, in some recent cases where serious offences have been held to be
absolute offences, the court has taken into account no more than the
wording of the Act and the character and seriousness of the mischief which
constitutes the offence. B
The choice would be much more difficult if there were no other way
open than either mens rea in the full sense or an absolute offence; for there
are many kinds of case where putting on the prosecutor the full burden of
proving mens rea creates great difficulties and may lead to many unjust
acquittals. But there are at least two other possibilities. Parliament has
not infrequently transferred the onus as regards mens rea to the accused, so
that, once the necessary facts are proved, he must convince the jury that on ^
balance of probabilities he is innocent of any criminal intention. I find
it a little surprising that more use has not been made of this method: but
one of the bad effects of the decision of this House in Woolmington v.
Director of Public Prosecutions [1935] A.C. 462 may have been to discour-
age its use. The other method would be in effect to substitute in appro-
priate classes of cases gross negligence for mens rea in the full sense as the jy
mental element necessary to constitute the crime. It would often be much
easier to infer that Parliament must have meant that gross negligence should
be the necessary mental element than to infer that Parliament intended to
create an absolute offence. A variant of this would be to accept the view
of Cave J. in Reg. v. Tolson (1889) 23 Q.B.D. 168, 181. This appears to
have been done in Australia where authority appears to support what
Dixon J. said in Proudman v. Dayman (1941) 67 C.L.R. 536, 540: E
" A s a general rule an honest and reasonable belief in a state of facts
which, if they existed, would make the defendant's act innocent affords
an excuse for doing what would otherwise be an offence."
It may be that none of these methods is wholly satisfactory but at least
the public scandal of convicting on a serious charge persons who are in no p
way blameworthy would be avoided.
If this section means what the Divisional Court have held that it means,
then hundreds of thousands of people who sublet part of their premises or
take in lodgers or are concerned in the management of residential premises
or institutions are daily incurring a risk of being convicted of a serious
offence in circumstances where they are in no way to blame. For the
greatest vigilance cannot prevent tenants, lodgers or inmates or guests whom G
they bring in from smoking cannabis cigarettes in their own rooms. It was
suggested in argument that this appellant brought this conviction on herself
because it is found as a fact that when the police searched the premises
there were people there of the " beatnik fraternity." But surely it would be
going a very long way to say that persons managing premises of any kind
ought to safeguard themselves by refusing accommodation to all who are „
of slovenly or exotic appearance, or who bring in guests of that kind.
And unfortunately drug taking is by no means confined to those of unusual
appearance.
151
A.C. Sweet v. Parsley (H.L.(E.) ) Lord Reid
Speaking from a rather long experience of membership of both Houses, I
A
assert with confidence that no Parliament within my recollection would have
agreed to make on offence of this kind an absolute offence if the matter had
been fully explained to it. So, if the court ought only to hold an offence to
be an absolute offence where it appears that that must have been the
intention of Parliament, offences of this kind are very far removed from
those which it is proper to hold to be absolute offences.
B I must now turn to the question what is the true meaning of section
5 of the 1965 Act. It provides:
"If a person—(a) being the occupier of any premises, permits those
premises to be used for the purpose of smoking cannabis or cannabis
resin or of dealing in cannabis or cannabis resin (whether by sale or
otherwise); or (b) is concerned in the management of any premises used
Q for any such purpose as aforesaid; he shall be guilty of an offence
against this Act."
We are particularly concerned with paragraph (6), and the first question is
what is meant by " used for any such purpose." Is the " purpose " the
purpose of the smoker or the purpose of the management? When in
Warner's case [1969] 2 A.C. 256, 277 I dealt briefly with Yeandel's case
£> [1966] 1 Q.B. 440, I thought it was the purpose of the smoker, but fuller
argument in the present case brought out that an identical provision occurs
in section 8 (d) which deals with opium. This latter provision has been
carried on from the Dangerous Drugs Act, 1920, and has obviously been
copied into the later legislation relating to cannabis. It would require
strong reasons—and there are none—to justify giving this provision a new
meaning in section 5 different from that which it had in the 1920 Act and
E now has in section 8 of the 1965 Act. I think that in section 8 it is clear
that the purpose is the purpose of the management. The first purpose
mentioned is the purpose of the preparation of opium for smoking which
can only be a purpose of the management. I believe that opium cannot
be smoked casually anywhere at any time as can a cannabis cigarette.
The section is dealing with " opium dens " and the like when the use of
p opium is the main purpose for which the premises are used. But it is a
somewhat strained use of language to say that an ordinary room in a house
is " used for the purpose " of smoking cannabis when all that happens is
that some visitor lights a cannabis cigarette there. Looking to the origin
and context of this provision, I have come to the conclusion that it cannot be
given this wide meaning. No doubt this greatly reduces the scope of this
provision when applied to the use of cannabis. But that is apt to happen
G when a draftsman simply copies an existing provision without regard to the
different circumstances in which it is to operate. So, if the purpose is the
purpose of the management, the question whether the offence with
regard to opium in 1920, and now with regard to cannabis, is absolute can
hardly arise. It could only arise if, although the manager not only knew
about cannabis smoking and conducted the premises for that purpose, some
TT person concerned in the management had no knowledge of that. One would
first have to decide whether a person who is not actually assisting in the
management can be regarded as being " concerned in the management,"
although ignorant of the purpose for which the manager was using the
152
Lord Reid Sweet v. Parsley (H.L.(E.)) [1970]
premises. Even if such a person could be regarded as " concerned in the
management," I am of opinion that, for the reasons which I have given, he
could not be convicted without proof of mens rea.
I would allow the appeal and quash the appellant's conviction.

LORD MORRIS OF BORTH-Y-GEST. My Lords, it has frequently been


affirmed and should unhesitatingly be recognised that it is a cardinal
principle of our law that mens rea, an evil intention or a knowledge of the B
wrongfulness of the act, is in all ordinary cases an essential ingredient of
guilt of a criminal offence. It follows from this that there will not be guilt
of an offence created by statute unless there is mens rea or unless Parlia-
ment has by the statute enacted that guilt may be established in cases where
there is no mens rea.
To this effect were the words of Wright J. in Sherras v. De Rutzen
[1895] 1 Q.B. 918 and in Derbyshire v. Houliston in [1897] 1 Q.B. 772. c
In the judgment of the Privy Council in Lim Chin Aik v. The Queen
[1963] A.C. 160 the principle was amply expressed. It was said, at p. 172:
" That proof of the existence of a guilty intent is an essential ingredient of
a crime at common law is not at all in doubt."
But as Parliament is supreme it is open to Parliament to legislate in
such a way that an offence may be created of which someone may be found TJ
guilty though mens rea is lacking. There may be cases in which, as
Channell J. said in Pearks, Gunstoh & Tee Ltd. v. Ward [1902] 2 K.B.
1,11:
". . . t h e Legislature has thought it so important to prevent the
particular act from being committed that it absolutely forbids it to be
done; and if it is done the offender is liable to a penalty whether he
had any mens rea or not, and whether or not he intended to commit
a breach of the law."
Thus in diverse situations and circumstances and for any one of a variety
of reasons Parliament may see fit to create offences and make people
responsible before criminal courts although there is an absence of mens rea.
But I would again quote with appreciation (as I did in Warner's case,
[1969] 2 A.C. 256) the words of Lord Goddard C.J., in Brend v. Wood F
(1946) 175 L.T. 306, 307, when he said:
" 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 part of a crime, the court should not find a man
guilty of an offence against the criminal law unless he has a guilty G
mind."
The intention of Parliament is expressed in the words of an enactment.
The words must be looked at in order to see whether either expressly or
by necessary implication they displace the general rule or presumption that
mens rea is a necessary prerequisite before guilt of an offence can be found.
Particular words in a statute must be considered in their setting in the JJ
statute and having regard to all the provisions of the statute and to its
declared or obvious purpose. In 1842 in Attorney-General v. Lockwood
(1842) 9 M. & W. 378, 398 Alderson B. said:
153
A.C. Sweet y. Parsley (H.L.(E.) ) Lord Morris or
J v
<• •" Borth-y-Gesi
. "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."
It must be considered, therefore, whether by the words of a penal statute
it is either express or implied that there may be a conviction without mens
rea or, in other words, whether what is called an absolute offence is created.
In Dyke v. Elliott. The " Gauntlet" (1872) L.R. 4 P.C. 184, 191 it was
said:
"No doubt all penal statutes are to be construed strictly, that is to
say, the court must see that the thing charged as an offence is within
C the plain meaning of the words used, and must not strain the words
on any notion that there has been a slip, that there has been a casus
omissus, that the thing is so clearly within the mischief that it must
have been intended to be included and would have been included if
thought of. On the other hand, the person charged has a right to
say that the thing charged, although within the words, is not within
J-J the spirit of the enactment. But where the thing is brought within
the words and within the spirit, there a penal enactment is to be
construed, like any other instrument, according to the fair common-
sense meaning of the language used, and the court is not to find or
make any doubt or ambiguity in the language of a penal statute, where
such doubt or ambiguity would clearly not be found or made in the
same language in any other instrument."
E
The inquiry must be made, therefore, whether Parliament has used words
which expressly enact or impliedly involve that an absolute offence is
created. Though sometimes help in construction is derived from noting
the presence or the absence of the word " knowingly," no conclusive test
can be laid down as a guide infindingthe fair, reasonable and common-sense
meaning of language. But in considering whether Parliament has decided
F to displace what is a general and. somewhat fundamental rule it would
not be reasonable lightly to impute to Parliament an intention to create
an offence in such a way that someone could be convicted of it who by all
reasonable and sensible standards is without fault.
There have been many cases in recent periods in which in reference
to a variety of different statutory enactments questions have been raised
P whether absolute offences have been created. Some of these cases illustrate
the difficulties that are created if Parliament uses language or phrases as to
the meaning of which legitimate differences of opinion can arise. I do not
propose to recite or survey these cases because, in my view, the principles
which should guide construction are clear and, save to the extent that
principles are laid down, the cases merely possess the interest which is
yielded by seeing how different questions have, whether correctly or in-
correctly, been decided in reference to varying sets of words in various
different statutes.
The question must always be—what has Parliament enacted? That is the
154
£«*£ Morris of Sweet y. Parsley (H.L.(E.) ) [1970]
question in the present case and to that I now turn. The wording of section .
5 of the Dangerous Drugs Act, 1965, is as follows:
" If a person—(a) being the occupier of any premises, permits those
premises to be used for the purpose of smoking cannabis or cannabis
resin or of dealing in cannabis or cannabis resin (whether by sale or
otherwise); or (b) is concerned in the management of any premises
used for any such purpose as aforesaid; he shall be guilty of an
offence against this Act." B
The words are nearly the same as and presumably were derived from words
in section 5 of the Dangerous Drugs Act, 1920, concerning opium.
In the present case the appellant was charged with being concerned in
the management of certain premises situate at Fries Farm which were used
for the purpose of smoking cannabis or cannabis resin. I need not recite
the facts which are set out in the case stated. ^
It was for the prosecution to prove the guilt of the appellant. It was
found by the magistrates that the appellant had no knowledge whatsoever
that cannabis had been smoked in the house. The prosecution contended
that guilt can be established of the offence created by section 5 (b) if a
person is concerned in the management of premises in which cannabis is in
fact smoked. The consequence was acknowledged and indeed asserted that D
if some persons managed a hostel containing, say, 50 to 100 rooms, and if on
one day in one room an occupant smoked one cannabis cigarette without the
knowledge of the persons managing, they would have no defence to a charge
under section 5 (b). If Parliament has so enacted, then the law must be
enforced. But I am sure that that is not what Parliament has decreed.
If someone is concerned in management there must at least be knowledge
E
of what it is that is being managed: otherwise there could be no concern
in it. If someone is concerned in the management of a building containing a
number of separately let residential flats the concern in such case would be
in the arrangements for the lettings and in the arrangements relating to
lifts or staircases or the structure of the building as a whole. The concern
would be in the management of premises used for residential purposes. In
the ordinary course of things the landlord or the manager would have no p
right of entry into a flat and would have no concern with any normal,
reasonable and lawful activity within a flat. If a tenant, who was a non-
smoker, had a guest one day who smoked a pipe of tobacco in the flat, it
would be a strained and unnatural use of language to describe the flat which
the tenant rented as being premises used for the purpose of smoking. It
would be equally strained and unnatural to describe the landlord or his
agent as being concerned in the management of premises used for the pur- G
pose of smoking. If on an isolated occasion a tenant gave a showing of
some cinematograph films to his friends, it would be unreasonable to
describe the manager of the flats (who had no occasion to know of the film
showing) as being one who was concerned in the management of premises
used for the purpose of exhibiting films.
If a tenant took sugar with his tea it would be fanciful to describe the JJ
flat as premises used for the purpose of putting sugar into tea.
It seems to me, therefore, that the words " premises . . . used for the
purpose of smoking cannabis " are not happily chosen if they were intended
L
155
A.C. Sweet v. Parsley (H.L.0E.)) »rd Morris of
J v
\ " Borth-y-Gest
. to denote premises in which at any time cannabis is smoked. In my opinion,
the words " premises . . . used for the purpose of . . ." denote a purpose
which is other than quite incidental or casual or fortuitous: they denote a
purpose which is or has become either a significant one or a recognised one
though certainly not necessarily an only one. There is no difficulty in
appreciating what is meant if it is said that premises are used for the purposes
of a dance hall or a billiard hall or a bowling alley or a hairdressing saloon
B or a cafe\ A new or additional use might, however, arise. It might happen
that a house let as a private dwelling might come to be used as a brothel or
for the purposes of prostitution. A room let for private occupation might
come to be the resort of a number of people who wished to smoke opium
so that the time would come when the room could rationally be described
as a room used for the purpose of smoking opium.
The words " concerned in the management of any premises used for the
purpose of " are, in my view, to be considered together and as one phrase.
Even so the phrase may be capable of two meanings. It could denote the
management of premises used for a certain purpose in the sense that the
management is limited to management in respect of the premises them-
selves. It could denote the management of premises used for a certain
purpose in the sense that the management was concerned either additionally
D or perhaps separately with the purpose for which the premises were used.
Thus, if someone is said so to be concerned in the management of premises
used for the purpose of dancing, he could be someone concerned only in
the management of the premises themselves, or he could be someone who
additionally or possibly separately was concerned with the dancing. On
either approach and with an ordinary use of words, it would seem to me
that the person would be one who would have and would need to have
E knowledge of the use of the premises for the particular purpose.
It is said that the intention of Parliament was to impose a duty on all
persons concerned in the management of any premises to exercise vigilance
to prevent the smoking of cannabis. If that had been the intention of
Parliament different words would have been used. It would be possible
for Parliament to enact, though it would be surprising if it did, that if
p anyone should at any time smoke cannabis on any premises, then all those
concerned in the management of those premises, whether they knew of the
smoking or not, should automatically be guilty of a criminal offence. Yet
this is in effect what it is now said that Parliament has enacted. The impli-
cations are astonishing. Parliament would not only be indirectly imposing a
duty upon persons concerned in the management of any premises requiring
them to exercise complete supervision over all persons who enter the
G premises to ensure that no one of them should smoke cannabis, but Parlia-
ment would be enacting that the persons concerned in the management
would become guilty of an offence if, unknown to them, someone by
surreptitiously smoking cannabis eluded the most elaborately devised
measures of supervision. There would not be guilt by reason of anything
done nor even by reasons of any carelessness, but by reason of the unknown
JJ act of some unknown person whom it had not been found possible to
control. When the range of possible punishments is remembered the
unlikelihood that Parliament intended to legislate in such way becomes
additionally apparent.
156
Lord Morris ot Sweet v. Parsley (H.L.(E.)) [1970]
Borlh-y-Gest '
For the reasons that I have indicated I consider that on a fair reading .
of the phrase " concerned in the management of premises used for the
purpose of" a link is denoted between management and user for a
purpose. To say that someone is concerned in the management of premises
used for the purpose of smoking cannabis involves, in my view, that his
management is with knowledge that the premises are so used. The wording
of section 5 (b) contains positive indications that mens rea is an essential
ingredient of an offence. Even if, contrary to my view, it is not affirma- B
tively enacted that there must be mens rea I cannot read the wording as
enacting that there need not be mens rea. I find it wholly impossible to say
that the statute has either clearly, or by necessary implication, ruled out
mens rea as a constituent part of guilt.
On the findings of the magistrates it follows that the appellant was not
guilty. I would, therefore, allow the appeal. Accordingly, in my view, the
case should be remitted to the Divisional Court with a direction to quash ^
the conviction.
LORD PEARCE. My Lords, the prosecution contend that any person who
is concerned in the management of premises where cannabis is in fact
smoked even once, is liable, though he had no knowledge and no guilty
mind. This is, they argue, a practical act intended to prevent a practical jy
evil. Only by convicting some innocents along with the guilty can sufficient
pressure be put upon those who make their living by being concerned
in the management of premises. Only thus can they be made alert to
prevent cannabis being smoked there. And if the prosecution have to
prove knowledge or mens rea, many prosecutions will fail and many of the
guilty will escape. I find that argument wholly unacceptable.
The notion that some guilty mind is a constituent part of crime and **
punishment goes back far beyond our common law. And at common law
mens rea is a necessary element in a crime. Since the Industrial Revolution
the increasing complexity of life called into being new duties and crimes
which took no account of intent. Those who undertake various industrial
and other activities, especially where these affect the life and health of the
citizen, may find themselves liable to statutory punishment regardless of p
knowledge or intent, both in respect of their own acts or neglect and those of
their servants. But one must remember that normally mens rea is still an
ingredient of any offence. Before the court will dispense with the necessity
for mens rea it has to be satisfied that Parliament so intended. The mere
absence of the word " knowingly " is not enough. But the nature of the
crime, the punishment, the absence of social obloquy, the particular mischief
and the field of activity in which it occurs, and the wording of the particular G
section and its context, may show that Parliament intended that the act
should be prevented by punishment regardless of intent or knowledge.
Viewing the matter on these principles, it is not possible to accept the
prosecution's contention. Even granted that this were in the public health
class of case, such as, for instance, are offences created to ensure that food
shall be clean, it would be quite unreasonable. It is one thing to make a JJ
man absolutely responsible for all his own acts and even vicariously liable
for his servants if he engages in a certain type of activity. But it is quite
another matter to make him liable for persons over whom he has no control.
157
A.C. Sweet v. Parsley (H.L.(E.)) Lord Pearce
The innocent hotel-keeper, the lady who keeps lodgings or takes paying
A
guests, the manager of a cinema, the warden of a hostel, the matron of a
hospital, the house-master and matron of a boarding school, all these, it is
conceded, are, on the prosecution's argument, liable to conviction the moment
that irresponsible occupants smoke cannabis cigarettes. And for what
purpose is this harsh imposition laid on their backs? No vigilance by night
or day can make them safe. The most that vigilance can attain is advance
B knowledge of their own guilt. If a smell of cannabis comes from a sitting-
room, they know that they have committed the offence. Should they then
go at once to the police and confess their guilt in the hope that they will not
be prosecuted? They may think it easier to conceal the matter in the hope
that it may never be found out. For if, though morally innocent, they are
prosecuted they may lose their livelihood, since thereafter, even though not
punished, they are objects of suspicion. I see no real, useful object achieved
^ by such hardship to the innocent. And so wide a possibility of injustice to
the innocent could not be justified by any benefit achieved in the determent
and punishment of the guilty. If, therefore, the words creating the offence
are as wide in their application as the prosecution contend, Parliament
cannot have intended an offence to which absence of knowledge or mens
rea is no defence.
D Parliament might, of course, have taken what was conceded in argument
to be a fair and sensible course. It could have said, in appropriate words,
that a person is to be liable unless he proves that he had no knowledge or
guilty mind. Admittedly, if the prosecution have to prove a defendant's
knowledge beyond reasonable doubt, it may be easy for the guilty to escape.
But it would be very much harder for the guilty to escape if the burden of
disproving mens rea or knowledge is thrown on the defendant. And if
E that were done, innocent people could satisfy a jury of their innocence on
a balance of probabilities. It has been said that a jury might be confused
by the different nature of the onus of satisfying " beyond reasonable doubt"
which the prosecution have to discharge and the onus " on a balance of
probabilities " which lies on a defendant in proving that he had no know-
ledge or guilt. I do not believe that this would be so in this kind of case.
p Most people can easily understand rules that express in greater detail that
which their own hearts and minds already feel to be fair and sensible. What
they find hard to understand is rules that go "against the grain " of then-
own common sense. If a judge on a drug case, feeling disheartened, perhaps,
after a close study of Warner's case [1969] 2 A.C. 256, had given the jury
no direction as to the law, and had simply said that they must consider
the facts and do their best with the charge, I believe that they would
G evolve their duty in some such form as this; " First, I suppose, we must
make sure that there really was drug smoking on the premises " (or " that
he really had drugs on him " or whatever the charge may be) " and then it is
up to the defendant to persuade us that he did not know, or was not guilty
for some other good reason." If I am right in this surmise, any judicial
elaboration of their own instinctive reactions would be quite easy for them
ii to understand.
If it were possible in some so-called absolute offences to take this sensible
half-way house, I think that the courts should do so. This has been referred
to in Warner's case [1969] 2 A.C. 256. I see no difficulty in it apart from
158
Lord Pearce Sweet v. Parsley (H.L.(E.) ) [1970]
the opinion of Viscount Sankey L.C. in Woolmington v. Director of
Public Prosecutions [1935] A.C. 462. But so long as the full width of A
that opinion is maintained, I see difficulty. There are many cases where
the width of that opinion has caused awkward problems. But before
reducing that width your Lordships would obviously have to consider all
the aspects of so far-reaching a problem. In the present case Miss Heilbron
was wisely loth to involve herself in this when she had easier and surer
paths to pursue. B-
The Australian High Court, founding on Cave J. (1889) 23 Q.B.D. 168,
181, and Wills J. (at p. 175) in Reg. v. Tolson have evolved a defence of
reasonable mistake of fact, and the burden of proving this on a balance of
probabilities rests upon the defendant. The whole matter is discussed in
an interesting article, " Strict Responsibility in the High Court of Australia,"
by Professor Colin Howard in the Law Quarterly Review (1960) vol. 76 _
p. 547. He concludes at p. 566:
" Where a statutory prohibition is cast in terms which at first sight
appear to impose strict responsibility, they should be understood
merely as imposing responsibility for negligence but emphasising that
the burden of rebutting negligence by affirmative proof of reasonable
mistake rests upon the defendant." He cites Maker v. Musson (1934)
52 C.L.R. 100 per Dixon J., at p. 105, and per Evatt and McTiernan L>
JJ. at p. 108; cf. Sherras v. De Rutzen [1895] 1 Q.B. 918, 921 per
Day J.
That decision was before Woolmington's case [1935] A.C. 462. In Thomas
v. The King (1937) 59 C.L.R. 279 the matter was further discussed, but I
see no reference to Woolmington's case [1935] A.C. 462. I should be
happy to be persuaded either that it does not prevent us from adopting E
such a satisfactory concept as the Australian courts have evolved or that
its wide effect should be limited. But it has not been necessary for the
purposes of the present case to go fully into that aspect of the matter.
Although the subsection cannot constitute an absolute offence in the
wide application for which the prosecution contend, it does not follow that
on a narrower construction it may not constitute an absolute offence. By p
the term " absolute " I mean an offence to which the normal assumption
of mens rea does not apply, but in which the actual words of the offence
(without any additional implication of mens rea) may well import some
degree of knowledge, as, for example, the word " possession " as in War­
ner's case [1969] 2 A.C. 256. In saying that the section relating to posses-
sion (which was there under discussion) was absolute, I was using it (as the
context was intended to show) in that loose and convenient sense which G
had been used in the argument.
The history of the subsection and the words themselves lend strong
support to the view that a narrow meaning was intended. In the Dangerous
Drugs Act, 1920, section 4 (c) and (d), identical words are used save that the
" purpose " there was " the preparation of opium for smoking or the sale
or smoking of prepared opium" instead of " the purpose of smoking u
cannabis or cannabis resin or of dealing in cannabis or cannabis resin
whether by sale or otherwise." Section 4 of the 1920 Act was in fact
re-enacted in section 8 of the 1965 Act now under consideration. The
159
A.C. Sweet v. Parsley (H.L.(E.)) Lord Pearce
words thus taken from the 1920 Act cannot have a different sense when
" used in the 1965 Act, especially when they are re-enacted in another part
of the 1965 Act itself. Any guide provided by their context in 1920 can,
therefore, be useful in deciding their meaning in 1965, when applied to
cannabis smoking. The prosecution point out that opium smoking needs
more paraphernalia and preparation (in what are sometimes called " opium
dens") and that considerations applicable to them are out of place in
B dealing with cannabis, which may be smoked casually and without prepara-
tion. Anyone may carry a cannabis cigarette and light it in the normal
places and in normal circumstances of life. But that very fact makes it the
more unlikely that responsibility for such casual acts of invitees or licensees
should fall on those who manage premises unless they are managing them
for just such a purpose.
The whole context and content of the original section 5 of the 1920 Act
C show that it was considering premises one of whose "purposes" was
opium smoking. The " purpose " there referred to is thus the purpose of
the management or a purpose known to or acquiesced in by them. I
think that the words which were lifted from that section and enacted in
relation to cannabis in section 5 of the Dangerous Drugs Act, 1965, must
be given a similar narrow construction. There was no need to insert the
JJ word " purpose," if all that was intended was premises where cannabis
is in fact smoked. Being concerned in the management of premises used
for the purpose of smoking cannabis necessarily imports some knowledge
of the use of the premises for the purpose. Admittedly Miss Sweet had no
knowledge.
I appreciate that this limitation will, as the prosecution contend, rob the
section of much of its force. If a wider application or efficiency were
E desired it could be achieved by a change of onus and a consideration of
what exactly is being required of landladies and the like. They cannot
reasonably be branded with guilt whenever there happens to be on their
premises someone who without their knowledge or assent smokes cannabis.
I would allow the appeal.
p LORD WILBERFORCE. My Lords, in my opinion Miss Stephanie Sweet,
who was found to have " no knowledge whatever that [her] house was being
used for the purpose of smoking cannabis," ought not to have been
convicted.
Her conviction was based upon section 5 (b) of the Dangerous Drugs
Act, 1965, and upon an interpretation of the words "concerned in the
management of any premises used [for the purpose of smoking cannabis or
G cannabis resin or of dealing in cannabis or cannabis resin] " which makes
a person liable to prosecution who lets, or licenses the occupation of
premises, upon which cannabis or cannabis resin is smoked or dealt in. It
requires no amplification to show how wide a category of persons would
thus be brought into the category of potential offenders. So, for this appeal,
the essential question is to determine whether this interpretation is correct.
pj The words " concerned in the management" are not, on the face of
them, very clear, but at least they suggest some technical or acquired mean-
ing, some meaning other than one which refers merely to such common
transactions as letting or licensing the occupation of premises. For if it had
160
LordWilberforce Sweet v. Parsley (H.L;(E.)) [1970]
been intended to penalise anyone who lets or licenses premises on which
cannabis comes to be smoked, it would have been easy to do so in simple "■
language. This impression is strengthened when the following words of
the subsection are read. They reflect what I would think to be logically
correct—namely, that one does not " manage " premises, the inert subject
of a conveyance or a lease, but rather some human activity on the premises
which the manager has an interest in directing. And so, when the sub-
section speaks of management of premises, and for a purpose, I would g
expect the purpose for which the premises are used to be that of the
manager: otherwise, what would be the nature and object of the
management?
A consideration of previous and analogous legislation removes any
doubt that these words are intended to refer to such a special and limited
class as I have described, one which quite clearly excludes such persons as
Miss Sweet. This legislation deals with other " anti-social" activities such ^
as the keeping of brothels, opium " dens " and gaming houses.
1. The Criminal Law Amendment Act, 1885, section 13, dealt with the
keeping of brothels. It penalised a person who " keeps or manages or acts
or assists in the management of a brothel." It dealt also with persons, other
than managers, tenants, occupiers, lessors and (by an amendment in
1912) persons in charge, but in relation to them it stated explicity the TJ>
requirement of knowledge—" knowingly permits," " lets with knowledge,"
" is wilfully party to the continued use." These fit in with and emphasise
the conception of purposeful management. Substantially similar language
is taken into the modern Sexual Offences Act, 1956, which refers to manag-
ing or acting or assisting in management. It is perhaps worth observation
that this Act refers both to " used as a brothel" and " used for the
purposes of habitual prostitution," showing that when a convenient noun E
exists which includes the concept of a prohibited purpose, it is adopted,
and that " used for the purposes " is employed to denote a similar type
of situation as to which no convenient noun can be found or coined.
2. The Dangerous Drugs Act, 1921, dealt with opium. The relevant
sections are reproduced in the Act of 1965 (section 8), and it is obvious
that the provisions regarding cannabis are based upon them. In dealing p
with management of premises it seems clear enough that what is in mind
is not the lessor of premises on which opium may come to be smoked, but
a manager of what, if a noun is required, might be called " opium dens."
No doubt opium smoking is a more elaborate and prolonged process than
smoking of cannabis, so that the transference of legislation from one
activity to the other is not completely appropriate, but the difference
(perhaps not understood by the draftsman) is not sufficient to impel us G
to a fresh conception of management.
3. The use of the word " management" in relation to gaming houses
goes back at least to the Gaming Act, 1845 (section 4). The expression
" concerned in the management" is used in section 5. The Betting Act,
1853 (section 3), combines prohibition of "permitting" by occupiers with
prohibition of management of a house or place used for the purposes of JJ
betting, a comparable structure to that of section 5 of the Dangerous Drugs
Act, 1965. I need not trace this wording through the mountains of later
enactments.
161
A.C. Sweet v. Parsley (H.L.(E.)) Lord Wilberforce
I am left with no doubt after examination of this legislation that when
the Dangerous Drugs Act, 1964 (the predecessor of that of 1965), adopted
in relation to cannabis language which penalised, on the one hand,
" permitting to be used " and, on the other hand, being " concerned in the
management of premises used for the purposes . . ." it must, in the latter
provision, have had in mind the same kind of purposeful management
activity as was referred to, in analogous connections, in previous legis-
B lation. One can describe what is penalised as being concerned in the
management of a cannabis shop, or a cannabis smoking den or parlour, a
type of activity which no doubt includes not only one where this was the
direct or main purpose of the manager, or person concerned in the manage-
ment, but also cases where, by extension or infiltration and acquiescence,
this purpose had come to be included in the purposes for which the premises
are being managed or, one might say, run.
If this is the correct meaning to extract from the language, when one
considers that there is also a wide area of penalisation elsewhere of
possession and of permitting by occupiers, there is a rational statutory
scheme of considerable scope. I see no reason to strain the language of
section 5 (b) so as to convert it into, in effect, an instrument of amateur
law enforcement which may catch many innocent persons: whether the
D section, as so interpreted, is too severe or not severe enough, is something
for Parliament to consider.
On this admittedly prosaic interpretation of the subsection, I do not
embark upon a wider examination of the problem of absolute offences,
or of guilty intention. As in Warner's case [1969] 2 A.C. 256, the word
" possession " carried its own content of mental intention so, perhaps a
fortiori, do the words " concerned in the management of premises used for
the purpose . . ." and there is no occasion to look beyond them for some
separate ingredient which might, in fact, be difficult to define.
I would allow the appeal.
LORD DIPLOCK. My Lords, on premises of which Miss Sweet was the
occupier but from which she was frequently absent cannabis was smoked
F without her permission or knowledge. She was charged before the
Woodstock magistrates with an offence under section 5 of the Dangerous
Drugs Act, 1965. She was not charged under paragraph (a) as an occupier
of premises who "permits those premises to be used for the purpose of
smoking cannabis " but under paragraph (b) as a person " concerned in
the management of . . . premises used for that purpose." She was
convicted and fined £25.
That conviction was upheld by the Divisional Court who gave leave to
appeal to your Lordships' house and certified that the following points of
law of general public importance are involved in their decision, namely:
" (1) Whether section 5 (b) of the Dangerous Drugs Act, 1965, creates
an absolute offence. (2) What, if any, mental element is involved in
„ the offence; and (since leave to appeal is given in regard to (1) and (2)
above) (3) Whether on the facts found a reasonable bench of magis-
trates, properly directing their minds as to the law, could have convicted
the appellant."
162
Lord Diplock Sweet v. Parsley (H.L.(E.)) [1970]
The expression "absolute offence" used in the first question is an
imprecise phrase currently used to describe an act for which the doer is
subject to criminal sanctions even though when he did it he had no mens
rea, but mens rea itself also lacks precision and calls for closer analysis
than is involved in its mere translation into English by Wright J. in Sherras
v. de Rutzen [1895] 1 Q.B. 918, 921 as "evil intention or a knowledge of
the wrongfulness of the act"—a definition which suggests a single
mental element common to all criminal offences and appears to omit B
thoughtlessness which, at any rate if it amounted to a reckless disregard of
the nature or consequences of an act, was a sufficient mental element in
some offences at common law.
A more helpful exposition of the nature of mens rea in both common
law and statutory offences is to be found in the judgment of Stephen J. in
Reg. v. Tolson (1889) 23 Q.B.D. 168, 187. He said:
" The full definition of every crime contains expressly or by implication
a proposition as to a state of mind. Therefore, if the mental element of
any conduct alleged to be a crime is proved to have been absent in
any given case, the crime so defined is not committed; or, again, if a
crime if fully defined, nothing amounts to that crime which does not
satisfy that definition."
D
Where the crime consists of doing an act which is prohibited by statute
the proposition as to the state of mind of the doer which is contained in the
full definition of the crime must be ascertained from the words and subject-
matter of the statute. The proposition, as Stephen J. pointed out, may be
stated explicitly by the use of such qualifying adverbs as " maliciously,"
" fraudulently," " negligently " or " knowingly "—expressions which in
relation to different kinds of conduct may call for judicial exegesis. And E
even without such adverbs the words descriptive of the prohibited act may
themselves connote the presence of a particular mental element. Thus,
where the prohibited conduct consists in permitting a particular thing to be
done the word " permit" connotes at least knowledge or reasonable grounds
for suspicion on the part of the permittor that the thing will be done and an
unwillingness to use means available to him to prevent it and, to take a p
recent example, to have in one's " possession " a prohibited substance con-
notes some degree of awareness of that which was within the possessor's
physical control: Reg. v. Warner [1969] 2 A.C. 256.
But only too frequently the actual words used by Parliament to define
the prohibited conduct are in themselves descriptive only of a physical
act and bear no connotation as to any particular state of mind on the part
of the person who does the act. Nevertheless, the mere fact that Parliament G
has made the conduct a criminal offence gives rise to some implication
about the mental element of the conduct proscribed. It has, for instance,
never been doubted since M'Naghteris Case (1843) 10 d & F. 200, that
one implication as to the mental element in any statutory offence is that the
doer of the prohibited act should be sane within the M'Naghten rules; yet
this part of the full definition of the offence is invariably left unexpressed by „
Parliament. Stephen J. in Reg. v. Tolson (1889) 23 Q.B.D. 168 suggested
other circumstances never expressly dealt with in the statute where a
mental element to be implied from the mere fact that the doing of an act
163
A.C. Sweet v. Parsley (H.L.(E.)) Lord Diplock
was made a criminal offence would be absent, such as where it was done
in a state of somnambulism or under duress, to which one might add
inevitable accident. But the importance of the actual decision of the nine
judges who constituted the majority in Reg, v. Tolson, which concerned
a charge of bigamy under section 57 of the Offences Against the Person
Act, 1861, was that it laid down as a general principle of construction of
any enactment, which creates a criminal offence, that, even where the words
B used to describe the prohibited conduct would not in any other context
connote the necessity for any particular mental element, they are neverthe-
less to be read as subject to the implication that a necessary element in the
offence is the absence of a belief, held honestly and upon reasonable
grounds, in the existence of facts which, if true, would make the act
innocent. As was said by the Privy Council in Bank of New South Wales v.
Piper [1897] A.C. 383, 389, 390, the absence of mens rea really consists in
C such a belief by the accused.
This implication stems from the principle that it is contrary to a rational
and civilised criminal code, such as Parliament must be presumed to have
intended, to penalise one who has performed his duty as a citizen to
• ascertain what acts are prohibited by law (ignorantia juris non excusat) and
has taken all proper care to inform himself of any facts which would make
D his conduct lawful.
Where penal provisions are of general application to the conduct of
ordinary citizens in the course of their every day life the presumption is that
the standard of care required of them in informing themselves of facts which
would make their conduct unlawful, is that of the familiar common law duty
of care. But where the subject-matter of a statute is the regulation of a
particular activity involving potential danger to public health, safety or
morals in which citizens have a choice as to whether they participate or not,
the court may feel driven to infer an intention of Parliament to impose by
penal sanctions a higher duty of care on those who choose to participate and
to place upon them an obligation to take whatever measures may be
necessary to prevent the prohibited act, without regard to those considera-
tions of cost or business practicability which play a part in the determina-
F tion of what would be required of them in order to fulfil the ordinary
common law duty of care. But such an inference is not lightly to be drawn,
nor is there any room for it unless there is something that the person on
whom the obligation is imposed 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 obligation (see Lim Chin Aik v. The Queen [1963]
G
A.C. 160, 174).
The numerous decisions in the English courts since Reg. v. Tolson
(1889) 23 Q.B.D. 168 in which this later inference has been drawn rightly
or, as I think, often wrongly are not easy to reconcile with others where
the court has failed to draw the inference, nor are they always limited to
penal provisions designed to regulate the conduct of persons who choose
fj to participate in a particular activity as distinct from those of general
application to the conduct of ordinary citizens in the course of their
every day life. It may well be that had the significance of Reg. v. Tolson
been appreciated here, as it was in the High Court of Australia, our courts,
f
164
Lord Diplock Sweet v. Parsley (H.L.(E.)) [1970]
too, would have been less ready to infer an intention of Parliament to
create offences for which honest and reasonable mistake was no excuse. A
Its importance as a guide to the construction of penal provisions in
statutes of general application was recognised by Dixon J. in Maker v.
Musson (1934) 52 C.L.R. 100, 104, and by the majority of the High Court
of Australia in Thomas v. The King (1937) 59 C.L.R. 279. It is now
regularly adopted in Australia as a general principle of construction of
statutory provisions of this kind. B
By contrast, in England the principle laid down in Reg. v. Tolson (1889)
23 Q.B.D. 168 has been overlooked until recently (see Reg. V. Gould [1968]
2 Q.B. 65) partly because the ratio decidendi was misunderstood by the
Court of Criminal Appeal in Rex v. Wheat, Rex v. Stocks [1921] 2 K.B. 119
and partly, I suspect, because the reference in Reg. v. Tolson (1889) 23
Q.B.D. 168 to the mistaken belief as being a "defence" to the charge of
bigamy was thought to run counter to the decision of your Lordships' House ^
in Woolmington v. Director of Public Prosecutions [1935] A.C. 462. That
expression might have to be expanded in the light of what was said in
Woolmington's case, though I doubt whether a jury would find the expan-
sion much more informative than describing the existence of the mistaken
belief as a defence to which they should give effect unless they felt sure
either that the accused did not honestly hold it or, if he did, that he had no D
reasonable grounds for doing so.
Woolmington's case affirmed the principle that the onus lies upon the
prosecution in a criminal trial to prove all the elements of the offence with
which the accused is charged. It does not purport to lay down how that
onus can be discharged as respects any particular elements of the offence.
This, under our system of criminal procedure, is left to the common sense
of the jury. Woolmington's case did not decide anything so irrational as b
that the prosecution must call evidence to prove the absence of any mistaken
belief by the accused in the existence of facts which, if true, would make the
act innocent, any more than it decided that the prosecution must call
evidence to prove the absence of any claim of right in a charge of larceny.
The jury is entitled to presume that the accused acted with knowledge of
the facts, unless there is some evidence to the contrary originating from the p
accused who alone can know on what belief he acted and on what ground
the belief, if mistaken, was held. What Woolmington's case did decide is
that where there is any such evidence the jury after considering it and also
any relevant evidence called by the prosecution on the issue of the existence
of the alleged mistaken belief should acquit the accused unless they feel
sure that he did not hold the belief or that there were no reasonable grounds
upon which he could have done so. ^
This, as I understand it, is the approach of Dixon J. to the onus of proof
of honest and reasonable mistaken belief as he expressed it in Proudman V.
Dayman (1941) 67 C.L.R. 536, 541. Unlike the position where a statute
expressly places the onus of proving lack of guilty knowledge on the
accused, the accused does not have to prove the existence of mistaken
belief on the balance of probabilities; he has to raise a reasonable doubt as JJ
to its non-existence.
It has been objected that the requirement laid down in Reg. v. Tolson
(1889) 23 Q.B.D. 168 and the Bank of New South Wales v. Piper [1897]
165
A.C. Sweet v. Parsley (H.L.(E.)) Lord Diplock
A.C. 383 that the mistaken belief should be based on reasonable grounds
" introduces an objective mental element into mens rea. This may be so,
but there is nothing novel in this. The test of the mental element of
provocation which distinguishes manslaughter from murder has always been
at common law and now is by statute the objective one of the way in which
a reasonable man would react to provocation. There is nothing unreason-
able in requiring a citizen to take reasonable care to ascertain the facts
B relevant to his avoiding doing a prohibited act.
It is, then, with these principles in mind that I approach the construction
of section 5 of the Dangerous Drugs Act, 1965, under which Miss Sweet
was charged. It contains separate prohibitions in paragraphs (a) and (b)
respectively. The offence under (a), with which Miss Sweet was not
charged, can only be committed by the occupier of premises. The act of
the occupier which is prohibited is to " permit" those premises to be used
^ for the purpose of smoking cannabis or cannabis resin or of dealing in
cannabis or cannabis resin. Here the word "permits," used to define
the prohibited act, in itself connotes as a mental element of the prohibited
conduct knowledge or grounds for reasonable suspicion on the part of the
occupier that the premises will be used by someone for that purpose and an
unwillingness on his part to take means available to him to prevent it. As
D regards this offence there is no need to have recourse to the more general
implication as to the need for mens rea where the words are in themselves
descriptive only of a physical act.
In paragraph (b) the phrase " concerned with the management of any
premises," unlike the phrase "being the occupier of any premises" in
paragraph (a), is not descriptive of a class of person to whom a particular
kind of conduct subsequently defined is prohibited. It is part of the
E definition of the offence itself. The conduct prohibited is to be " concerned
in the management of premises used for the purpose of smoking cannabis,"
etc. What, if any, mental element does this compound phrase connote?
The premises of which it is an offence to be concerned in the management
are defined not by reference merely to what happens on them (e.g.
" premises on which cannabis is smoked ") but by the purpose for which
p they are used. " Purpose " connotes an intention by some person to achieve
a result desired by him. Whose purpose must it be that the premises
should be used for smoking cannabis? The answer is, in my opinion, to
be found in the words " is concerned in the management." To manage or
to be concerned in the management itself connotes control or direction
of an activity to achieve a result desired by those who control or direct the
activity. In my opinion, in the compound phrase "is concerned in the
G management of premises used for the purpose of smoking cannabis " etc.,
the purpose described must be the purpose of the person concerned in the
management of the premises.
But at its highest against Miss Sweet the words of the paragraph are
ambiguous as to whose is the relevant purpose. That ambiguity in a penal
statute which, on the alternative construction that it would be sufficient if
JJ the purpose to use the premises for smoking cannabis were that of anyone
who in fact smoked cannabis, would render her liable, despite lack of any
knowledge or acquiescence on her part, should be unhesitatingly resolved in
her favour.
A.C. 1970 7
166
Lord Diplock Sweet v. Parsley (H.L.(E.)) [1970]
In view of the finding that Miss Sweet" had no knowledge whatever that
A
the house was being used for the purpose of smoking cannabis or cannabis
resin " she could not properly be convicted of the offence charged. I, too,
would allow this appeal.
Appeal allowed.

Solicitors: Birnberg & Co.; Preston, Rose & Neil for Cole & Cole,
Oxford. B
F. C.

[HOUSE OF LORDS] C

MALLETT APPELLANT
AND
McMONAGLE, a minor by Hugh Joseph McMonagle, his
father and guardian ad litem, and Another . . RESPONDENTS
D
1968 Dec. 16, 17 Lord Reid, Lord Morris of Borth-y-Gest,
1969 Feb. 11 Lord Pearce, Lord Wilberforce and Lord Diplock
Damages—Personal injuries—Jury—Assessment of damages by
jury—Whether award so excessive as to warrant interference
by appellate court.
Fatal Accidents Acts—Damages—Assessment—Widow's depend­
ency—Inflation of currency—Whether to be taken into account. E
The appellant, whose husband died at the age of 25 years in
1964 as the result of an accident caused by the negligence of the
respondents, sued them as his administratrix claiming damages
under the Fatal Accidents Acts. She was 24 years old and had
three children aged 6, 4 and 2 years respectively. The deceased
was a machine operator earning £12 a week. For six weeks
before his death he had earned £6-£10 a week singing with a p
dance band in the evenings. The appellant's total dependency
was established at about £10 a week. Before the trial the
company employing the deceased ceased business but there was
evidence that, had he lived, he would have been offered work
as an asphalter at an average wage of £22 10s. a week. The
jury assessed the damages at £22,000. The Court of Appeal
held that this amount was excessive and ordered a new trial.
On appeal to the House of Lords: Q
Held, that the assessment of a jury should not be disturbed
unless the appellate court was satisfied that no reasonable jury
could have made it and, the Court of Appeal having been so
satisfied, its decision should stand.
The elements of estimate should be weighed sympathetically
and fairly and with a sense of proportion, and this award was
larger than even the most advantageous assumptions in favour
of the deceased's prospects could justify. „
Davies V. Powell Duffryn Associated Collieries Ltd. [1942] n
A.C. 601; [1942] 1 All E.R. 657, H.L.(E.) and Nance v. British
Columbia Electric Railway Co. Ltd. [1951] A.C. 601; [1951] 2
All E.R. 448, P.C. applied.