England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Wednesday 31st July 1996

B E F O R E :

LORD JUSTICE HIRST

MR JUSTICE McCULLOUGH

and

MR JUSTICE TOULSON

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R E G I N A

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ALBERT BLAKE

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR P LEVY appeared on behalf of the Appellant

MR J DAVIES (MR PASCALL 31.7.96) appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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JUDGMENT

LORD JUSTICE HIRST: On 18th March 1996 in the Crown Court at Wood Green, before Mr Recorder Carey QC, the appellant pleaded guilty on re-arraignment, after legal argument and a ruling by the Recorder, to two counts of using a station for wireless telegraphy without a licence on two separate dates. On 19th March he was sentenced to a fine of £150 on each count, £900 costs and forfeiture of all the equipment under section 14(3) of the Wireless Telegraphy Act 1949 as amended. He now appeals against conviction by leave of the single judge.

The facts are that on various dates in February 1995 radio investigation officers heard an unlicensed radio station called "Ragga" transmitting on the VHF broadcasting band. On the evening of 15th February the disc jockey identified himself as "Casanova". The transmissions were traced to a tower block in Holly Street E 8. A radio link to the distant studio was identified and the source of emission was traced to Newton Road N 15. From there a second microwave radio link was traced to low rise flats in Cunningham Road N 15. The premises were searched during a transmission and the appellant was discovered alone in the flat standing in front of record decks playing music and wearing a set of headphones. A cable ran to the kitchen where a microwave transmitter and a suitable aerial were found. When the transmitter was switched off the broadcast ceased.

The appellant told the radio investigation officer that his disc jockey name was Casanova and gave the hours during which he transmitted and the frequency on which the transmissions took place: he also signed a contemporaneous note of the interview confirming its accuracy. Following caution the question and answer session went as follows:

"Q. What time did you start your show tonight?

A. Nine.

Q. What DJ name do you use?

A. Casanova.

Q. Have you any records in the studio room?

A. Yes, some in a bag and some singles.

Q. Are the records on the turntable yours?

A. Yes.

Q. What's the name of the station?

A. Ragga.

Q. When was the last time you transmitted on Ragga?

A. Two weeks ago.

Q. Was that from here?

A. Yes.

Q. What frequency do you transmit on?

A. 99.6.

Q. Did you install the apparatus?

A. No.

Q. What time did you come here tonight?

A. Nine.

Q. How did you get in?

A. The guy that was before me let me in.

Q. What time did he leave?

A. He left when I came in.

Q. So you have been on your own since 9 o'clock?

A. Yes."

The equipment seized included a number of cassettes, two record decks, a compact disc player, a stereo audio mixer, a microphone, a microwave transmitter and aerial, assorted cables and leads, various papers and posters, one transmitter and one microwave receiver.

Having regard to the appellant's activity at the time of the search, and also to the clear statements made by him in the interview, there was no dispute that he knew he was using the broadcasting apparatus in the studio. His defence was that he believed he was making demonstration tapes at the time and so did not know that he was in fact transmitting.

The question which the Recorder had to decide on when he gave his ruling was whether, as the prosecution contended, the offence created by section 1(1) of the Wireless Telegraphy Act 1949 is an absolute offence of strict liability, or whether as the defence contended the prosecution needed to establish mens rea. The Recorder upheld the prosecution's submission on this point, at which juncture the appellant changed his plea to one of guilty.

Section 1(1), to which we refer hereinafter in this judgment as "the subsection", provides so far as relevant as follows:

"Licensing of Wireless Telegraphy

(1) No person shall establish or use any station for wireless telegraphy or install or use any apparatus for wireless telegraphy except under the authority of a licence in that behalf granted under this section-

(a) by the Secretary of State (unless

it is a television licence); or

(b) if it is a television licence, by

the BBC;

and any person who establishes or uses any station for wireless telegraphy or installs or uses any apparatus for wireless telegraphy except under and in accordance with such a licence shall be guilty of an offence under this Act..."

It is common ground between the two parties (1) that the word "use" is to be interpreted in its natural and ordinary meaning (compare Rudd v Secretary of State for Trade and Industry (1987) 1 WLR 786 and R v Brown House of Lords, February 1996 as yet unreported). (2) that the relevant general law was accurately summarised by Lord Scarman giving the judgment of the Board in the Privy Council case of Gammon v The Attorney-General of Hong Kong (1985) 1 AC 14, applying the earlier and very well known decision of the House of Lords in R v Sweet and Parsley (1978) AC 132 as follows:

"In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

The history of the subsection is of some relevance. In its original form in 1949 it was in substantially the same terms as in its present wording, and the prescribed penalty on summary conviction was imprisonment for a period not exceeding three months or a fine not exceeding £100, or both. However, the 1949 Act was amended by the Broadcasting Act 1990 which made two relevant changes.

(1) Three new sections were added as follows:

"Offence of keeping wireless telegraphy station or apparatus available for unauthorised use.

1A. Any person who has any station for wireless telegraphy or apparatus for wireless telegraphy in his possession or under his control and either-

(a) intends to use it in contravention of section 1 of this Act; or

(b) knows, or has reasonable cause to believe, that another person intends to use it in contravention of that section,

shall be guilty of an offence.

Offence of allowing premises to be used for purpose of unlawful broadcasting.

1B. (1) A person who is in charge of any premises which are used for making an unlawful broadcast, or for sending signals for the operation or control of any apparatus used for the purpose of making an unlawful broadcast from any other place, shall be guilty of an offence if-

(a) he knowingly causes or permits the premises to be so used; or

(b) having reasonable cause to believe that the premises are being so used, he fails to take such steps as are reasonable in the circumstances of the case to prevent the premises from so being used.

...

Prohibition of acts facilitating unauthorised broadcasting.

1C. (1) If a person-

(a) does any of the acts mentioned in subsection (2) in relation to a broadcasting station by which unauthorised broadcasts are made, and

(b) if any knowledge or belief or any circumstances is or are specified in reference to the act, does it with that knowledge or belief or in those circumstances,

he shall be guilty of an offence.

(2) The acts referred to in subsection (1) are-

(a) participating in the management, financing, operation or day-to-day running of the station knowing, or having reasonable cause to believe, that unauthorised broadcasts are made by the station;

(b) supplying, installing, repairing or maintaining any wireless telegraphy apparatus or any other item knowing, or having reasonable cause to believe, that the apparatus or other item is to be, or is, used for the purpose of facilitating the operation or day-to-day running of the station and that unauthorised broadcasts are made by the station;

(c) rendering any other service to any person knowing or having reasonable cause to believe, that the rendering of that service to that person will facilitate the operation or day-to-day running of the station and that unauthorised broadcasts are so made;

(d) supplying a film or sound recording knowing, or having reasonable cause to believe, that an unauthorised broadcast of the film or recording is to be so made;

(e) making a literary, dramatic or musical work knowing, or having reasonable cause to believe, that an unauthorised broadcast of the work is to be so made;

(f) making an artistic work knowing, or having reasonable cause to believe, that an unauthorised broadcast including that work is to be so made;

(g) doing any of the following acts, namely-

(i) participating in an unauthorised

broadcast made by the station, being

actually present as an announcer, as

a performer or one of the performers

concerned in an entertainment given,

or as the deliverer of a speech;

(ii) advertising, or inviting another

to advertise, by means of an

unauthorised broadcast made by the

station; or

(iii) publishing the times or other

details of any authorised broadcasts

made by the station or (otherwise

than by publishing such details)

publishing an advertisement of matter

calculated to promote the station

(whether directly or indirectly),

knowing, or having reasonable cause to believe, that unauthorised broadcasts are made by the station."

(2.) The penalty was increased by prescribing a term of imprisonment not exceeding six months or a fine not exceeding the statutory maximum or both on summary conviction and imprisonment for a term not exceeding two years, or a fine, or both, on conviction on indictment.

On behalf of the appellant Mr Levy submitted that the word "use" itself implied mens rea and was synonymous with "make use of" or "employ for a purpose". This he submitted was underlined by the insertion of the three new sections in 1990 which he suggested create a whole range of new offences which would have been unnecessary if the prosecution's interpretation of the subsection were correct. He drew special attention to section 1C(2)(g) which makes it an offence inter alia knowingly to participate in an unauthorized broadcast made by the station or being actually present as an announcer. Clearly, he submitted, a disc jockey with the necessary mens rea would be caught under section 1C(2)(g) yet, if the prosecution were right, he would already have been caught under the subsection itself without the need to prove mens rea.

Finally, Mr Levy placed strong reliance on the principles laid down in the Gammon case and submitted that the present case did not fall within the exceptions laid down in paragraphs (4) and (5).

On behalf of the prosecution Mr Davies stressed that the subsection is silent on mens rea and that in consequence it was properly to be construed as creating an absolute offence, in contrast to the three new sections 1A, 1B and 1C, with their express use of the word "knowingly". Moreover he submitted that any presumption to the contrary was displaced by the aspects of social concern and public safety addressed by the subsection, seeing that unauthorized pirate broadcasts frequently interfere with public service communications used by the police, the fire service, and the ambulance service, and also by air traffic control. It was thus important that there should be a strong deterrent and an encouragement to greater vigilance to prevent the commission of the prohibited offence.

In support of the latter argument he relied on R v Wells Street Metropolitan Stipendiary Magistrates ex parte Westminster City Council (1986) 1 WLR 1046, where the Divisional Court (Watkins LJ and Sir Roger Ormrod) held that section 55(1) of the Town and Country Planning Act 1971, which prohibits the execution of various works to a listed building, was an absolute offence. Having expressly cited the principles laid down in the Gammon case, the court held that section 55(1) clearly related to an issue of social concern and that the creation of strict liability would be effective to promote the objects of the statute by encouraging greater vigilance, and by furnishing a deterrent to those tempted to breach it (per Watkins LJ at page 1050-1051).

The solution to this case, which we have not found easy, clearly lies in the application of the five principles laid down by Lord Scarman in the Gammon case. In our judgment, since throughout the history of the subsection an offender has been potentially subject to a term of imprisonment, the offence is "truly criminal" in character, and it follows that Mr Levy is correct in submitting that the presumption in favour of mens rea is particularly strong. However, it seems to us manifest that the purpose behind making unlicensed transmissions a serious criminal offence must have been one of social concern in the interests of public safety for the reasons given by Mr Davies, since undoubtedly the emergency services and air traffic controllers were using radio communications in 1949, albeit in a much more rudimentary form than nowadays. No doubt the much greater sophistication of these modes of communication, and the wider prevalence of pirate radio stations 40 years on, led to the substantial increase in the penalty in 1990.

Clearly interference with transmissions by these vital public services poses a grave risk to wide sections of the public. We therefore consider that the test laid down in paragraph (4) in Gammon is met.

Furthermore we are satisfied that the test in paragraph (5) is also met, since the imposition of an absolute offence must surely encourage greater vigilance on the part of those establishing or using a station, or installing or using the apparatus, to avoid committing the offence, eg in the case of users by carefully checking whether they are on air; it must also operate as a deterrent. The case is thus in our judgment, mutatis mutandis, comparable with R v Wells Street Magistrates Court , perhaps a fortiori since here public safety is the main consideration and in our view a consideration of paramount importance.

We do not find the Parliamentary history of great assistance either way. On the one hand we do not think Mr Davies is entitled to invoke, for the purpose of the construction of the subsection, newly inserted sections which were not in existence when it was enacted. On the other hand we are not persuaded by Mr Levy's alternative analysis, since it seems to us that, looked at in the round, the new sections were probably intended to sweep up a number of broadcasting activities, nearly all of which would fall outside the scope of the subsection, and which, because of their more peripheral character, were made subject to the requirement of the proof of mens rea. Inevitably in such circumstances there is likely to be some overlap, as in the case of an announcer or disc jockey under section 1C(2)(g), on which Mr Levy particularly relied.

The real significance of the amendments, we think, is to underline the deep concern of Parliament to deter pirate broadcasting, by bringing within the purview of the prohibition not only those directly responsible for establishing or using the station or installing or using the apparatus (under the subsection itself), but also (by the amendment) persons less directly involved, who are engaged in connected activities, subject in the latter case to the more onerous burden of proof.

We think that the proper approach to this subsection is closely akin to the approach adopted to the absolute offence of possessing a firearm without a certificate contrary to section 1 of the Firearms Act 1968, which Mr Davies cited to us for the purposes of comparison. This is described in Archbold paragraphs 24-5. Section 1(1) provides:

"Subject to any exemption under this Act, it is an offence for a person-

(a) to have in his possession, or to purchase or acquire, a firearm to which this section applies without holding a firearm certificate in force at the time, or otherwise than is authorized by such a certificate..."

The Archbold commentary is as follows:

"Section 1(1) creates absolute offences. In R v Hussain 72 Cr App R 143, CA (a case concerning section 1(1)(a)), the court held (applying Warner v Metropolitan Police Commissioner [1969] 2 AC 256, HL, a drugs case) that if the prosecution prove that the defendant knowingly had in his possession an article which in fact is a firearm as defined in the 1968 Act (see section 57(1)), then the offence is committed, and the fact that the defendant did not know that the article in his possession was a firearm within the Act for which a certificate was required is immaterial... Similarly, in R v Waller [1991] Crim LR 381, CA, following Hussain, the defendant was held to have been rightly convicted under section 1(1) where he took possession of a friend's bag which, unknown to him, contained a firearm and not, as he thought it might, a crowbar; and in R v Steele [1993] Crim LR 298, CA, following Waller, a conviction was upheld where the defendant had custody of the bag for only a matter of minutes and could not reasonably have been expected to know that it contained a firearm.

Accordingly, an honest and reasonable belief that a modern reproduction is an antique firearm... is no defence to a charge of possessing a firearm without a certificate contrary to section 1(1)(a): R v Howells 65 Cr App R 86, CA..."

So here, by analogy, it is incumbent upon the prosecution to establish that the defendant knew he was making use of the apparatus, but they need not show that he was doing it with a guilty mind. Thus, for example, if a remark made by a bystander near the studio was accidentally picked up by the microphone and broadcast the bystander would not be liable.

In these circumstances we are satisfied that the subsection does create an absolute offence and it follows that this appeal will be dismissed.