High Court of Ireland Decisions

1. This is an appeal from the District Court by way of Case Stated and accordingly, I have called Mr Maguire "the Appellant" rather than "the Complainant" as in the title to the Case Stated.

The Appellant was convicted by the District Court, sitting at Cavan on the 10 June 1993 of the offence that he did within the period 30 July 1992 and 31 July 1992 (both days inclusive) at Finaway (Electoral division of Kilnaleck) in the County of Cavan within the Shannon Fisheries Region cause to fall into waters (to wit a watercourse, a tributory of the Finaway River/Mount Nugent River) deleterious matter (to wit whey and effluent) contrary to Section 171(1)(b) of the Fisheries (Consolidation) Act 1959.

The facts as found by the District Judge are set out in the Case Stated as follows:-

(1) Bernard Maguire was the proprietor of a piggery unit situated adjacent to the Finaway River on the 30 and 31 July 1992.

(2) In Februaryy 1992 at a cost of £200,000 a new feeding system was installed at the piggery unit with a sophisticated alarm system.

(3) A PVC pipe through which whey passed from an over ground tank to the mixer room as part of the new feeding system fractured during the early hours of the morning of Thursday 30 July.

(4) The bearing pressure which the PVC pipe was under was one twentieth of its capacity.

(5) The cause of the fracture to the pipe is unknown.

(6) Whey escaped from the PVC pipe and some of it found its way into the Finaway River through an underground rainwater discharge pipe.

(7) The feeding systems alarm did not sound when the whey escaped.

(8) Brendan Lafferty the unit manager of the piggery arrived on the site at about 7.30 am, Thursday 30 July and discovered the whey spillage. He did not notice a flow of whey into the Finaway River.

(9) Brian Brady an employee at the piggery unit noticed whey in the Finaway River at about 10 am on Thursday 30 July.

(10) Peter McDermott the general manager of Bernard Maguire's piggery operations arrived at the site about 10 am and took charge of the situation.

(11) Two dams were erected on the Finaway River between 10 am and 11 am made out of soil and sandbags, which dams were situated downstream from the discharge pipe.

(12) Two officials of the Shannon Regional Fisheries Board, Brenda Montgomery and Gerry Donohoe visited the piggery unit on Friday 31 July 1992 at about 9 am.

(13) They inspected the Finaway River and Brenda Montgomery took three samples from the water. These samples were taken from the discharge point and from points twenty yards upstream and downstream respectively from that point.

(14) The three samples were taken to Dublin where they were analysed by Dr Joseph Henley. Dr Henley found that the sample taken twenty yards downstream of the discharge point had a BOD (Biological Oxygen Demand) of 19.75 and suspended solids of 9.0, the sample taken at the point of discharge had a BOD of 157.75 and suspended solids of 62.0 and the sample taken twenty yards upstream had a BOD of 1.1 and suspended solids of 2.0. Dr Henley stated that a BOD of 10 is usually classed as polluted, but that below a BOD of 20 there is no necessity to treat the water.

(15) Brenda Montgomery and Gerry Donohoe returned to the site with another official of the Shannon Fisheries Board, Tony Denny at about 12.10 pm

(16) They walked the Finaway River down to the Mountnugent River and found 29 dead trout.

(17) The whey from the piggery unit which flowed into the Finaway River on the 30 July 1992 constituted deleterious matter within the meaning of the Fisheries (Consolidation) Act 1959.

(18) The Appellant took all reasonable steps at a very considerable expense to prevent the accident and the management and staff of the pig unit did everything in their power to prevent the flow of whey into the Finaway River.

(19) The flow of whey into the Finaway River was caused by the Appellant, within the meaning of Section 171 of the Fisheries (Consolidation) Act 1959.

THE FISHERIES (CONSOLIDATION) ACT 1959

Section 171 of the above Act so far as material for the purposes of this case provides as follows:-

"171-(1) Any person who --

(a) steeps in any waters any flax or hemp or,

(b) throws, empties, permits or causes to fall into any waters any deleterious matter shall unless such act is done under and in accordance with a licence granted by the Minister under this section be guilty of an offence under this section."

THE SUBMISSIONS

Counsel for the Appellant submitted as follows:-

(1) The issue as to when an offence of strict liability is created by a Statute arises in this case. Here it is found as a fact that the Appellant spent some £200,000 on the system; that he took all reasonable steps to prevent the sort of accident which happened in this case; and that he and his staff did everything in their power to prevent the flow of whey into the river. Section 171 of the 1959 Act as amended by Section 24 of the Local Government (Water Pollution) (Amendment) Act 1990 creates an offence which if tried on indictment can result in a fine of £25,000 or five years imprisonment or both.

Counsel relied on the passage from Lord Scarman's Judgment in Gammon (Hong Kong) Limited and others v The Attorney General of Hong Kong [1985] 1 AC, in which Lord Scarman sets out five propositions as follows:-

"(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."

Counsel for the Appellant on this aspect of the case also referred to the People (DPP) v Murray [1977] IR 360; Inspector of Taxes v Kiernan [1981] IR 117; Duncan Gleeson [1969] IR 116; Reynolds v GH Austin & Sons Limited [1951] 2 KB 135; Lim Chin Aik v The Queen [1963] AC 160 and Sweet v Parsley [1969] 1 All ER 347.

(2) Counsel for the Appellant further submitted that even if Section 171 of the Fisheries (Consolidation) Act 1959 creates an offence of strict liability the Appellant still was not guilty as he had not caused the whey to fall into the river. What happened was an unforeseen and unforeseeable event and the District Judge has found that the Appellant did nothing wrong. On this aspect of the case Counsel relied on Duncan v Gleeson; Price v Cromack [1975] 2 All ER 113 and distinguished the House of Lords decision in Alphacell Limited v Woodword [1972] AC 824.

Counsel for the Respondents submitted as follows:-

(1) Section 171 of the Fisheries (Consolidation) Act 1959 creates an offence of strict liability as is demonstrated by the history of the legislation. Section 34(c) of the Local Government (Water Pollution) Act 1977 purported to repeal Section 171 of the Fisheries (Consolidation) 1959 Act in force and indeed reinforced by Section 25 of the Act 1959 but was never brought into operation and was itself repealed by Section 30 of the 1990 Act leaving Section 171 of the Local Government (Water Pollution) (Amendment) Act which increased the penalties for an offence contrary to Section 171 of the 1959 Act including providing penalties for conviction on indictment.

Moreover Section 3 of the 1977 Act created a new offence of causing or permitting any polluting matter (which is defined in Section 1 of the 1977 Act) to enter water. Clearly the legislature contemplated substituting the offence under Section 3 of the 1977 Act for that under Section 171 of the Fisheries (Consolidation) Act 1959 but subsequently decided to keep both offences in existence. What is significant is that subsection (3) of Section 3 of the 1977 Act provides as follows:-

"It shall be a good defence to a prosecution under this Section to prove to the satisfaction of the Court that the person charged took all reasonable care to prevent the entry prohibited under subsection (1)."

That subsection (3) has itself been replaced by a more detailed subsection by Section 3(1)(b) of the Local Government (Water Pollution) (Amendment) Act 1990 as follows:-

"It shall be a defence to a charge of committing an offence under this section for the Accused to prove that he took all reasonable care to prevent the entry of waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practises or methods of operation that were suitable for the purpose of such prevention."

The original subsection (3) of Section 3 of the 1977 Act and the substituted subsection (3) of that section indicate that:-

(a) Were it not for subsection (3) Section 3 of the 1977 Act would create an offence of strict liability, and,

(b) Section 171 of the Fisheries (Consolidation) Act 1959 not having a corresponding proviso or defence subsection does create an offence of strict liability.

Moreover all the conditions for an offence of strict liability as set out in Gammon's case are fulfilled in this case. The offence is not truly criminal in character such as to attract grave public repugnance. The matter dealt with is one of serious social concern namely the pollution of rivers and lakes causing the destruction of fish life and while Counsel queried the validity of Lord Scarman's fifth condition he nevertheless submitted that the creation of strict liability will be effective and is effective to promote the objects of the Statute by encouraging greater vigilance to prevent the commission of the prohibited act.

(2) As regards causation Counsel for the Respondents submitted that neither intention nor negligence was required for causation. The surgeon carrying out an operation may cause undesirable side effects without intending to do so and without any negligence on his part but nevertheless he causes them.

In this case the Appellant owns and operates a piggery in the vicinity of the Finaway River and he uses whey in the feeding of the pigs. It is the Appellant's piggery operations and therefore the Appellant that caused the whey to escape into the river. The fact that there was no intention that whey should so escape nor any negligence causing the escape does not mean that the Appellant did not cause the escape. Causation is different from and independent of intention and negligence. Counsel relied very strongly on the Judgment of Lord Scarman in Alphacell Limited v Woodword [1972] AC 824.

In addition to the cases referred to by Counsel for the Appellant, Counsel for the Respondent referred also to Sherras v De Rutzen [1895] 1 QBD 918 and Toppin v Marcus [19O8] 2 IR 423.

CONCLUSIONS

I first consider the question whether the offence of causing to fall into any waters, any deleterious matter contrary to Section 171(1)(b) of the Fisheries (Consolidation) Act 1959 is an offence of strict liability not requiring mens rea.

I think that the Judgment of Wright J in Sherras v De Rutzen [1895] 1 QBD 918 is very helpful in resolving this issue. I quote what seem to me to be the relevant parts of it:-

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

The principle classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush J in Davies v Harvey (1874) LR 9 QB 433 are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. Several such instances are to be found in the decisions on the Revenue Statutes eg Attorney General v Lockwood 9 M & W 378 where the innocent possession of liquorice by a beer retailer was held an offence. So under the Adulteration Acts Reg v Woodrow (1846) 15 M & W 404 as to innocent possession of adulterated tobacco; Fitzpatrick v Kelly and Roberts v Egerton as to the sale of adulterated food . . .

Another class comprehends some, and perhaps all, public nuisances; Reg v Stephens where the employer was held liable on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders; and so in R v Medley (1834) 6 C & P 292 and Barnes v Akroyd (1872) LR 7 QB 474. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right; see per Williams and Willes JJ in Morden v Porter as to unintentional trespass in pursuit of game."

It follows from the foregoing authority that prima facie mens rea is required for every offence be it a common law or a statutory offence and therefore including Section 171 of the Fisheries (Consolidation) Act 1959. However, it seems to me that Section 171 is regulatory in essence and does not create an offence which would be regarded as of a truly criminal character. The pollution of waters is an issue of social concern and legislation against the pollution of rivers and streams has a long history and it has always been public policy to prohibit such pollution as far as possible and at least one of the grounds for this policy must be that such pollution creates a public nuisance. Moreover, it seems to me that the creation of strict liability in such pollution cases coupled with heavy penalties is effective to promote the objects of the Statute by encouraging greater vigilance to prevent the commission of the prohibited act and therefore fulfills Lord Scarman's fifth condition for strict liability. The other conditions being in my view also fulfilled.

If proof of mens rea were required in these sort of cases it would be very difficult ever to establish an offence. I venture to query whether the Appellant would have spent £200,000 on his piggery feed system were it not for a perception by him of grave penalties to be incurred at his peril if there should be an escape of whey into the river.

In Alphacell Limited v Woodword [1972] AC 824 Lord Wilberforce says at the bottom of page 834 and the top of page 835:-

"In my opinion, complication of this case by infusion of the concept of mens rea and its exceptions, is unnecessary and undesirable. The section is clear, its application plain. I agree with the majority of the divisional Court who upheld the conviction, except that rather than say that the actions of the Appellants were a cause of the pollution I think it more accurate to say that the Appellants caused the polluting matter to enter the stream."

The section with which Lord Wilberforce was dealing in that case namely Section 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951 is as follows:-

"Subject to this act, a person commits an offence punishable under this section -- (a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter."

In my opinion the offence created by Section 171(1)(b) of the Fisheries (Consolidation) Act 1959 of causing to fall into any waters any deleterious matter is an offence of strict liability.

As regards the question whether the Appellant caused the deleterious matter to fall into the Finaway River one can enter into esoteric discussions as to the proximate cause, the causa causans and causa sine qua non, but to do so is to depart from commonsense reality. No doubt the immediate or proximate cause of the flow of whey into the river was the fracture of the pipe but who caused the whey to be present in the pipe and therefore to escape into the river? The answer must surely be the activities of the Appellant in running his piggery in the vicinity of the Finaway River and therefore the answer must be that it was the Appellant who caused the whey to fall into the river.

I have already quoted from the Judgment of Lord Wilberforce in Alphacell Limited v Woodword [1972] AC 824 on the question of whether the offence is one of strict liability or not, but what he says is also relevant on the question of causation. However, Lord Salmon puts the position very plainly at page 847 paragraph D and 848/9 paragraphs C to H inclusive as follows:

"It seems to me that giving the word cause its ordinary and natural meaning, anyone may cause something to happen intentionally or negligently or inadvertently without negligence and without intention. For example, a man may deliberately smash a porcelain vase: he may handle it so negligently that he drops and smashes it: or he may without negligence slip or stumble against it and smash it. In each of these examples, no less in the last than in the other two, he has caused the destruction of the vase.

. . .

The Appellants contend that, even if they caused the pollution, still they should succeed since they did not cause it intentionally or knowingly or negligently. Section 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951 is undoubtedly a penal Section. It follows that if it is capable of two or more meanings then the meaning most favourable to the subject should be adopted. Accordingly, so the argument runs, the words intentionally or knowingly or negligently should be read into the section immediately before the word causes. I do not agree. It is of the utmost public importance that our rivers should not be polluted. The risk of pollution particularly from the vast and increasing number of riparian industries, is very great. The offences created by the Rivers (Prevention of Pollution) Act 1951 seem to me to be prototypes of offences which are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty: Sherras v De Rutzen [1895] 1 QBD 918 per Wright J referred to with approval by my noble and learned friends Lord Reid and Lord Diplock in Sweet v Parsley [1969] 1 All ER 347. I can see no valid reason for reading the word intentionally, knowingly or negligently into Section 2(1)(a) and a number of cogent reasons for not doing so. In the case of a minor pollution such as the present, when the justices find that there is no wrongful intention or negligence on the part of the Defendant, a comparatively nominal fine will no doubt be imposed. This may be regarded as a not unfair hazard of carrying on a business which may cause pollution on the banks of the river. The present Appellants were fined £20 and ordered to pay in all £24 costs. I should be surprised if the costs of pursuing this appeal to this house were incurred for the purpose of saving these Appellants £44.

If this appeal succeeded and it were old to be law that no conviction could be obtained under the Rivers (Prevention of Pollution) Act 1951 unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result many rivers which are now filthy would become filthier still and many rivers which are now clean would loose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate, hence Section 2(1)(a) which encourages riparian factory owners not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it."

I whole-heartedly concur with and adopt this reasoning and I think that it is equally applicable to the offence of causing to fall into any waters any deleterious matter contrary to Section 171 of the Fisheries (Consolidation) Act 1959. Accordingly, I answer the questions posed in the case stated as follows:-

(1) "Was I correct in law in the finding made at paragraph 6.3 hereof?"

In that paragraph the learned judge found that the flow of whey into the Finaway River was caused by the Appellant within the meaning of Section 171 of the Fisheries (Consolidation) Act 1959. That finding was correct.

(2) "Was I correct in law in the finding made in paragraph 7.2 hereof that the offence charged is a strict liability offence?"

Yes but this answer is confined to the offence of causing to fall into any waters any deleterious matter contrary to Section 171(1)(b) of the Fisheries (Consolidation) Act 1959. I express no opinion as to the nature of the offences of throwing or emptying or permitting to fall into waters any deleterious matter.

(3) "Was I correct in law in convicting the Defendant as I have done?"

Yes.