Pharmaceutical Society of Great Britain v Storkwain Ltd(1986) 2 All ER 635

This case involved s 58(2) of the Medicines Act 1968, which provides that no person shall supply specified medicinal products except in accordance with a prescription given by an appropriate medical practitioner. D had supplied drugs on prescriptions which were later found to be forged. There was no finding that D had acted dishonestly, improperly or even negligently. The forgery was sufficient to deceive the pharmacists. Despite this the House of Lords held that the Divisional Court was right to direct the magistrates to convict D. The pharmacists had supplied the drugs without a genuine prescription, and this was enough to make them guilty of the offence.

Winzar v Chief Constable of Kent, The Times, 28 March 1983

D was taken to hospital on a stretcher, but when doctors examined him they found that he was not ill but was drunk. D was told to leave the hospital but was later found slumped on a seat in a corridor. The police were called and they took D to the roadway outside the hospital. They formed the opinion he was drunk so they put him in the police car, drove him to the police station and charged him with being found drunk in a highway contrary to s 12 of the Licensing Act 1872. The Divisional Court upheld his conviction.

As in Larsonneur, the defendant had not acted voluntarily. The police had taken him to the highway. In the Divisional Court Goff LJ justified the conviction:

JUDGMENT

‘[L]ooking at the purpose of this particular offence, it is designed … to deal with the nuisance which can be caused by persons who are drunk in a public place. This kind of offence is caused quite simply when a person is found drunk in a public place or highway… [A]n example … illustrates how sensible that conclusion is. Suppose a person was found drunk in a restaurant and was asked to leave. If he was asked to leave, he would walk out of the door of the restaurant and would be in a public place or in a highway of his own volition. He would be there of his own volition because he had responded to a request. However, if a man in a restaurant made a thorough nuisance of himself, was asked to leave, objected and was ejected, in those circumstances he would not be in a public place of his own volition because he would have been put there… It would be nonsense if one were to say that the man who responded to the plea to leave could be said to be found drunk in a public place or in a highway, whereas the man who had been compelled to leave could not.

This leads me to the conclusion that a person is “found to be drunk or in a public place or in a highway”, within the meaning of those words as used in the section, when he is perceived to be drunk in a public place. It is enough for the commission of the offence if (1) a person is in a public place or a highway, (2) he is drunk, and (3) in those circumstances he is perceived to be there and to be drunk.’

It is not known how Winzar came to be taken to the hospital on a stretcher, but commentators on this case point out that there may be an element of fault in Winzar’s conduct. He had become drunk, and in order to have been taken to hospital must have either been in a public place when the ambulance collected him and took him to hospital, or he must have summoned medical assistance when he was not ill but only drunk.

Prince knew that the girl he took was in the possession of her father but believed, on reasonable grounds, that she was aged 18. He was convicted, as he had the intention to remove the girl from the possession of her father. Mens rea was required for this part of the actus reus, and he had the necessary intention. However, the court held that knowledge of her age was not required. On this aspect of the offence there was strict liability. In Hibbert the defendant met a girl aged 14 on the street. He took her to another place where they had sexual intercourse. He was acquitted of the offence as it was not proved that he knew the girl was in the custody of her father. Even though the age aspect of the offence was one of strict liability, mens rea was required for the removal aspect, and in this case, the necessary intention was not proved.

As already stated, the actus reus must be proved and the defendant’s conduct in doing the actus reus must be voluntary. However, a defendant can be convicted if his voluntary act inadvertently caused a prohibited consequence. This is so even though the defendant was totally blameless in respect of the consequence, as was seen in Callow v Tillstone (1900) 83 LT 411.

CASE EXAMPLE

Callow v Tillstone (1900) 83 LT 411

A butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet assured him that it was all right to eat, and so the butcher offered it for sale. In fact it was unfit and the butcher was convicted of the offence of exposing unsound meat for sale. It was a strict liability offence, and even though the butcher had taken reasonable care not to commit the offence, he was still guilty.

SECTION

‘13 If any licensed person permits drunkenness or any violent quarrelsome or riotous conduct to take place on his premises, or sells any intoxicating liquor to any drunken person, i he shall be liable to a penalty…’

The magistrate trying the case found as a fact that the defendant and his employees had not noticed that the person was drunk. The magistrate also found that while the person was on the licensed premises he had been ‘quiet in his demeanour and had done nothing to indicate insobriety; and that there were no apparent indications of intoxication’. However, the magistrate held that the offence was complete on proof that a sale had taken place and that the person served was drunk and convicted the defendant. The defendant appealed against this, but the Divisional Court upheld the conviction. Stephen J said:

JUDGMENT

‘I am of the opinion that the words of the section amount to an absolute prohibition of the sale of liquor to a drunken person, and that the existence of a bona fide mistake as to the condition of the person served is not an answer to the charge, but is a matter only for mitigation of the penalties that may be imposed.’

So s 13 of the Licensing Act 1872 was held to be a strict liability offence as the defendant could not rely on the defence of mistake. In contrast it was held in Sherras v De Rutzen that s 16 of the Licensing Act 1872 did not impose strict liability. In that case the defendant was able to rely on the defence of mistake.

CASE EXAMPLE

Sherras v De Rutzen (1895) 1 QB 918

In Sherras the defendant was convicted by a magistrate of an offence under s 16(2) of the Licensing Act 1872. This section makes it an offence for a licensed person to ‘supply any liquor or refreshment’ to any constable on duty. There were no words in the section requiring the defendant to have knowledge that a constable was off duty. The facts were that local police when on duty wore an armband on their uniform. An on-duty police officer removed his armband before entering the defendant’s public house. He was served by the defendant’s daughter in the presence of the defendant. Neither the defendant or his daughter made any enquiry as to whether the policeman was on duty. The defendant thought that the constable was off duty because he was not wearing his armband. The Divisional Court quashed the conviction. They held that the offence was not one of strict liability, and accordingly a genuine mistake provided the defendant with a defence.

When giving judgment in the case Day J stated:

‘This police constable comes into the appellant’s house without his armlet, and with every appearance of being off duty. The house was in the immediate neighbourhood of the police station, and the appellant believed, and had very natural grounds for believing, that the constable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the constable was on duty; but does that fact make the innocent act of the appellant an offence? I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief that the constable was off duty. It seems to me that the contention that he committed an offence is utterly erroneous.’

It is difficult to reconcile this decision with the decision in Cundy. In both cases the sections in the Licensing Act 1872 were expressed in similar words. In Cundy the offence was ‘sells any intoxicating liquor to any drunken person’, while in Sherras the offence was ‘supplies any liquor … to any constable on duty’. In each case the publican made a genuine mistake. Day J justified his decision in Sherras by pointing to the fact that although s 16(2) did not include the word ‘knowingly’, s 16(1) did, for the offence of ‘knowingly harbours or knowingly suffers to remain on his premises any constable during any part of the time appointed for such constable being on duty’. Day J held this only had the effect of shifting the burden of proof. For s 16(1) the prosecution had to prove that the defendant knew the constable was on duty, while for s 16(2) the prosecution did not have to prove knowledge, but it was open to the defendant to prove that he did not know.

The other judge in the case of Sherras, Wright J, pointed out that if the offence was to be made one of strict liability, then there was nothing the publican could do to prevent the commission of the crime. No care on the part of the publican could save him from a conviction under s 16(2), since it would be as easy for the constable to deny that he was on duty when asked as to remove his armlet before entering the public house. It is more possible to reconcile the two cases on this basis as in most cases the fact of a person being drunk would be an observable fact, so the publican should be put on alert and could avoid committing the offence.

JUDGMENT

‘Why then should the House, faced with a deliberate publication of that which a jury with every justification has held to be a blasphemous libel, consider that it should be for the prosecution to prove, presumably beyond reasonable doubt, that the accused recognised and intended it to be such… The reason why the law considers that the publication of a blasphemous libel is an offence is that the law considers that such publications should not take place. And if it takes place, and the publication is deliberate, I see no justification for holding that there is no offence when the publisher is incapable, for some reason particular to himself, of agreeing with a jury on the true nature of the publication.’

Note that blasphemous libel has now been abolished by the Criminal Justice and Immigration Act 2008.

Outraging public decency was held to be an offence of strict liability in Gibson and Sylveire (1991) 1 All ER 439 since it does not have to be proved that the defendant intended to or was reckless that his conduct would have the effect of outraging public decency.

Criminal contempt of court used to be a strict liability offence at common law. It is now a statutory offence, and Parliament has continued it as a strict liability offence.

Note that the Law Commission consulted in 2010 on possible reform of the offences of public nuisance and outraging public decency. A report is due out but had not been published at the time of writing the text.

SECTION

‘In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.’

However, the fact that other sections specifically require mens rea does not mean that the courts will automatically make the offence without express words of mens rea one of strict liability. In Sherras, even though s 16(1) of the Licensing Act 1872 had express words requiring knowledge, it was held that mens rea was still required for s 16(2), which did not include the word ‘knowingly’. This point was reinforced in Sweet, when Lord Reid stated:

JUDGMENT

‘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 of 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 intention in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.’

Where other sections allow for a defence of no negligence but another section does not, then this is another possible indicator from within the statute that the offence is meant to be one of strict liability. In Harrow LBC v Shah and Shah the defendants were charged under s 13(1)(c) of the National Lottery etc. Act 1993. The whole of s 13 reads:

SECTION

13(1) If any requirement or restriction imposed by regulations made under section 12 is contravened in relation to the promotion of a lottery that forms part of the National Lottery,