United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/246

Regina
v.

Shivpuri (Appellant) (On Appeal from the Court of Appeal

(Criminal Division))

JUDGMENT

Die Jovis 22° Maii 1986

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Shivpuri, That the

Committee had heard Counsel on Tuesday the 4th and Monday the
24th days of February last upon the Petition and Appeal of
Pyare Shivpuri of 63, Victoria Road, London, N4 3SN, praying
that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty's Court of Appeal of
13th November 1984, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order
might be reversed, varied or altered or that the Petitioner
might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem meet;
and Counsel having been heard on behalf of the Commissioners
of Customs and Excise on behalf of Her Majesty the Queen, the
Respondent to the said appeal; and due consideration had on
Thursday the 15th of this instant May and this day of what
was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal (Criminal Division) of 13th November 1984 complained
of in the said Appeal be, and the same is hereby, Affirmed;
That the Certified Question be answered in the affirmative,
and that the said Petition and Appeal be, and the same is
hereby, dismissed this House: And it is further Ordered,
That the costs of the said Appellant and of the said
Respondent incurred in respect of the said Appeal be paid out
of central funds pursuant to section 10 of the Costs in
Criminal Cases Act 1973, the amounts thereof to be certified
by the Clerk of the Parliaments.

Cler: Parliamentor

Judgment: 15.5.86

HOUSE OF LORDS

REGINA

v.

SHIVPURI

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Chancellor
Lord Elwyn-Jones
Lord Scarman
Lord Bridge of Harwich
Lord Mackay of Clashfern




LORD CHANCELLOR

My Lords,

I have had the advantage of reading in draft the speech
about to be delivered (and now available in print) by my noble and
learned friend, Lord Bridge of Harwich. Save for one relatively
minor point I agree with it in its entirety and would dispose of
this appeal as he proposes and for the reasons which he gives. I
add a few remarks of my own for reasons which will appear.

The first comment I make is that I believe that this is the
first time that the Practice Statement (Judicial Precedent) [1966]
1 W.L.R. 1234 has been applied to a decision as recent as that in
Anderton v. Ryan [1985] AC 560. Ordinarily I might have been
loth to take so bold a step, even though I may have entertained
privately the thought that such a case so recently and so carefully
considered and supported by two such powerfully reasoned
judgments was nevertheless seriously open to question. Quite
clearly a departure from recent decisions by means of the Practice
Statement has dangers of its own which are too obvious to need
elaboration. But there is obviously much to be said for the view
about to be expressed by my noble and learned friend that "if a
serious error embodied in a decision of this House has distorted
the law, the sooner it is corrected the better." This consideration
must be of all the greater force when the error is, as in the
present case, to be corrected by a palinode composed by one of
the original authors of the majority judgment. I also agree with
my noble and learned friend that in the very nature of the present
case it would seem impossible that anyone could have acted to his
detriment in reliance on the law as stated in the decision departed
from. Thirdly, as one of the authors of the decision in Reg. v.

- 1 -

Smith (Roger) [1975] AC 476 I must say that I had hoped that
my opinion in that case would be read by Parliament as a cri de
coeur, at least on my part, that Parliament should use its
legislative power to rescue the law of criminal attempts from the
subtleties and absurdities to which I felt that, on existing
premises, it was doomed to reduce itself, and, after long
discussions with the late Lord Reid, I had reached the conclusion
that the key to the anomalies arose from the various kinds of
circumstance to which the word "attempt" can be legitimately
applied, and that the road to freedom lay in making an inchoate
crime of this nature depend on a prohibited act (the so called, but
ineptly called, "actus reus") amounting to something more than a
purely preparatory act plus an intent (as distinct from an attempt)
to carry the act through to completion. When the Criminal
Attempts Act 1981 was carried into law, and I read section 6
which abolished altogether the common law offence except as
regards acts done before the commencement of the Act, I was
happily under the impression that my hopes had been realised, and
that my carefully prepared speech in Reg. v. Smith (Roger) would
henceforth be relegated to the limbo reserved for the discussions
of medieval schoolmen. It was therefore with something like
dismay that I learned that the ghost of my speech had risen from
what I had supposed to be its tomb and was still clanking its
philosophical chains about the field, and that the new Act had
formed a tilting yard for a joust of almost unexampled ferocity
between two of the most distinguished professors of English
criminal law in the United Kingdom.

I must add, however, that even had I not been able to
follow my noble and learned friend in interring Anderton v. Ryan
by using the Practice Statement of 1966, I would still have
dismissed the instant appeal by distinguishing its facts from that
case. Shortly, my reasoning would have been that the appellant
was guilty on the clear wording of sections 1(1) and 1(2) of the
Act of 1981 and that no recourse was therefore necessary to the
wording of clause 1(3) which if so would be irrelevant.

I would have arrived at this conclusion by asking myself
three simple questions to which the answers could only be made in
one form. They are:

Q.1. What was the intention of the appellant throughout?
A.1. His intention throughout was to evade and defeat the
customs authorities of the U.K. He had no other intention.
His motive was gain (the bribe of £1,000). But as I pointed
out in Reg. v. Hyam [1975] AC 55, 73 motive is not the
same thing as intention.

Q.2. Is the knowing evasion of the U.K. customs in the

manner envisaged in the appellant's intent an offence to

which section 1 of the Act of 1981 applies? A.2. Yes, see
section

Q.3. Did the appellant do an act which was more than
preparatory to the commission of the offence? A.3. Yes,
for the reasons stated in the relevant paragraphs of my
noble and learned friend's speech.

- 2 -

In this connexion I do not feel it would have been necessary
to invoke the doctrine of dominant and subordinate intention
referred to by my noble and learned friend. The sole intent of
the instant appellant from start to finish was to defeat the
customs prohibition. In Anderton v; Ryan the only intention of
Mrs. Ryan was to buy a particular video cassette recorder at a
knock-down price, and the fact that she believed it to be stolen
formed no part of that intention. It was a belief, assumed to be
false and not an intention at all. It was a false belief as to a
state of fact, and, if it became an intention it was only the result
of the deeming provisions of section 1(3). Whether or not Anderton
v. Ryan was correctly decided, one has to go to section 1(3) of
the Act of 1981 to decide whether Mrs. Ryan had committed a
criminal attempt under the Act as the result of her belief,
assumed to be false, that the video cassette recorder had in fact
been stolen. Similarly, to my mind, the only intention of the
lustful youth postulated by my noble and learned friends, Lord
Roskill and Lord Bridge of Harwich, by way of example in
Anderton v. Ryan was to have carnal connexion with a particular
girl. One has to go to section 1(3) to discover whether or not a
criminal attempt had been committed as the result of his false
belief that she was under age.

By way of conclusion I have to say that I think it a pity
that, as it emerged from Parliament, the Act of 1981 departed
from the draft Bill attached to the Law Commission report
(Criminal Law: Attempt, and Impossibility in Relation to Attempt,
Conspiracy and Incitement (1980) (Law Commission No. 102)),
which might have saved a lot of trouble. In particular the
distinction which I have sought to draw above between the facts in
Anderton v. Ryan and the instant appeal would have been patently
obvious and not to some extent controversial. In the second place
it may perhaps have been inevitable, but is nonetheless unusual,
that, in defining the prohibited act in section 1, the draftsman in
both cases was driven to define the act by reference to an intent,
instead, as is more usual in criminal jurisprudence, of defining the
criminal intent by reference to a separately defined prohibited act.
It is this feature of section 1 which, I believe, has caused the
trouble, and once this road has been followed it was I believe
impossible to avoid the disadvantages pointed out in paragraph 2.97
of the Law Commission's report to which my noble and learned
friend has drawn attention.

In the circumstances I am happy that my noble and learned
friend's conclusion has enabled the House to arrive at its
destination without resorting to these, possibly excessively
sophisticated, subtleties.

LORD ELWYN-JONES

My Lords,

I would for my part have been content to dismiss this
appeal by distinguishing its facts from the case of Anderton v.
Ryan as my noble and learned friend the Lord Chancellor has done
in his speech which I have had the advantage of reading in draft.

- 3 -

Having now also had the advantage of reading in draft the
speech of my noble and learned friend, Lord Bridge of Harwich,
with which I agree, I would dismiss the appeal as he proposes and
for the reasons which he gives.

LORD SCARMAN

My Lords,

I Have had the advantage of studying in draft the speech to
be delivered by my noble and learned friend Lord Bridge of
Harwich. I agree with it.

For the reasons which he gives I would dismiss the appeal,
answering the certified question as he proposes.

LORD BRIDGE OF HARWICH

My Lords,

On 23 February 1984 the appellant was convicted at the
Crown Court at Reading of two attempts to commit offences.
The offences attempted were being knowingly concerned in dealing
with (count 1) and in harbouring (count 2) a Class A controlled
drug namely diamorphine, with intent to evade the prohibition of
importation imposed by section 3(1) of the Misuse of Drugs Act
1971, contrary to section 170(l)(b) of the Customs and Excise
Management Act 1979. On 5 November 1984 the Court of Appeal
(Criminal Division) dismissed his appeals against conviction but
certified that a point of law of general public importance was
involved in their decision and granted leave to appeal to your
Lordships' House. The certified question granted on 13 November
1984 reads:

"Does a person commit an offence under section 1 of the
Criminal Attempts Act 1981 where, if the facts were as
that person believed them to be, the full offence would
have been committed by him, but where on the true facts
the offence which that person set out to commit was in law
impossible, e.g., because the substance imported and believed
to be heroin was not heroin but a harmless substance?"

The facts plainly to be inferred from the evidence,
interpreted in the light of the jury's guilty verdicts, may be
shortly summarised. The appellant, on a visit to India, was
approached by a man named Desai, who offered to pay him £1,000
if, on his return to England, he would receive a suitcase which a
courier would deliver to him containing packages of drugs which
the appellant was then to distribute according to instructions he
would receive. The suitcase was duly delivered to him in
Cambridge. On 30 November 1982, acting on instructions, the
appellant went to Southall station to deliver a package of drugs to
a third party. Outside the station he and the man he had met by
appointment were arrested. A package containing a powdered
substance was found in the appellant's shoulder bag. At the
appellant's flat in Cambridge, he produced to customs officers the
suitcase from which the lining had been ripped out and the



- 4 -remaining packages of the same powdered substance. In answer to
questions by customs officers and in a long written statement the
appellant made what amounted to a full confession of having
played his part, as described, as recipient and distributor of
illegally imported drugs. The appellant believed the drugs to be
either heroin or cannabis. In due course the powdered substance
in the several packages was scientifically analysed and found not
to be a controlled drug but snuff or some similar harmless
vegetable matter.

Before examining the issue arising from the certified
question, it will be convenient to consider an entirely separate
ground of appeal, which was not raised in the Court of Appeal,
but which your Lordships permitted counsel for the appellant to
argue before the Appellate Committee. Complaint is made of the
following passage in the summing-up of the trial judge, Judge
Pigot Q.C. In discussing the meaning of the words "knowingly
concerned" in section 170(l)(b) of the Act of 1979 he said:

"The prosecution must prove that the defendants did what
they did knowingly. That is to say, it must be proved that
they knew the goods were prohibited goods and had been
imported into the United Kingdom, although, in the context
of this case, they need not know precisely what the
prohibited goods were, as long as they knew they were
prohibited.

There is evidence for you to consider in this case that Mr.
Shivpuri particularly knew the nature of the substance. It is
a matter for you to decide whether you are sure that he
knew or believed the substance was heroin or, in his own
expression, dried hash or cannabis (which is also prohibited)
or some other prohibited drug. That is what "knowingly"
means in the context of this case."

The attack on this passage has two limbs. The first
criticises the direction as erroneous in law and raises a point of
law of undoubted general importance although it is doubtful
whether, in the circumstances of the present case, the point is
more than academic. The second criticises the direction on a
narrow ground solely with reference to its applicability to the
facts of the present case.

In using the words "they not need know precisely what the
prohibited goods were, as long as they knew they were prohibited"
Judge Pigot Q.C. was expounding the law to the jury exactly as it
was laid down by the Court of Appeal in Reg. v. Hussain [1969] 2
Q.B. 567 in relation to offences under section 304 of the Customs
and Excise Act 1952 connected with the importation of prohibited
goods. In that case the appellant had been convicted of being
knowingly concerned in the fraudulent evasion of the prohibition of
the importation of cannabis. It was submitted on his behalf that
proof of knowledge on his part that the goods being smuggled were
cannabis was part of the obligation of the prosecution, and since
the chairman had directed that it was not necessary for the
accused to know precisely the nature of the goods, there was a
misdirection. Delivering the judgment of the court, Widgery L.J.
said, at pp. 571-572:

- 5 -

"The court is not prepared to accept that submission. It
seems perfectly clear that the word "knowingly" in section
304(b) is concerned with knowing that a fraudulent evasion
of a prohibition in respect of goods is taking place. If,
therefore, the accused knows that what is on foot is the
evasion of a prohibition against importation and he
knowingly takes part in that operation, it is sufficient to
justify his conviction, even if he does not know precisely
what kind of goods are being imported. It is, of course,
essential that he should know that the goods which are
being imported are goods subject to a prohibition. It is
essential he should know that the operation with which he is
concerning himself is an operation designed to evade that
prohibition and evade it fraudulently. But it is not
necessary that he should know the precise category of the
goods the importation of which has been prohibited."

The submission made by counsel for the appellant is that
this case and Reg. v. Hennessey (Timothy) (1978) 68 Cr. App. R.
419 which followed it should now be overruled. The basis for the
submission is that section 170 of the Act of 1979 creates three
distinct offences in relation to the importation of prohibited goods
according to the category of goods in relation to which the
offence was committed. The effect of section 170(3) and (4) and
Schedule 1 is that the commission of any offence under section
170(1) or (2) in relation to the importation of drugs of Class A or
Class B under the Misuse of Drugs Act 1971 attracts a maximum
sentence of 14 years' imprisonment; the commission of any such
offence in relation to the importation of drugs of Class C attracts
a maximum sentence of 5 years' imprisonment; and the commission
of any such offence in relation to any other category of prohibited
goods attracts a maximum sentence of 2 years' imprisonment. It
follows from this, applying the reasoning in Reg. v. Courtie [1984]
A.C. 463, that each of the three distinct offences has different
ingredients and, leaving aside considerations of impossibility arising
under the Criminal Attempts Act 1981, part of the actus reus of
the offence which must be proved in each case is the importation,
actual or attempted, of goods which were in fact of the
appropriate category to sustain the offence charged. So far the
argument seems to me irrefutable and is not challenged by the
Crown. It is the next step in the argument which is the critical
one. If each of the three offences involves proof of a different
element as part of the actus reus, sc. importation of the
appropriate category of prohibited goods, it follows, so it is
submitted, that "knowingly," wherever it appears in section 170(1)
and (2) connotes a corresponding mens rea, sc. knowledge of the
importation of goods in the appropriate category. I recognise the
force of this submission. The point may be put in the form of a
rhetorical question. Can it be supposed that Parliament intended
that the mens rea appropriate to an offence carrying a maximum
sentence of 2 years' imprisonment should equally be sufficient to
sustain a conviction for an offence carrying a maximum sentence
of 14 years' imprisonment? On the other hand, if the submission
for the appellant is right, the task of the prosecution in proving
an offence in relation to the importation of prohibited drugs would
in many cases be rendered virtually impossible, more particularly
since the enactment of the Controlled Drugs (Penalties) Act 1985,
which creates a separate category of offences in relation to the
importation of drugs of Class A, which now carry a maximum



- 6 -

sentence of life imprisonment. By Schedule 2 to the Misuse of
Drugs Act 1971 there are about one hundred different drugs listed
in Class A, thirteen in Class B, and ten in Class C. An educated
layman would know the names of no more than a handful of these:
cocaine, diamorphine, morphine, opium and perhaps a few others in
Class A; amphetamine, cannabis and codeine in Class B; none that
I recognise in Class C. If a man were accused of being knowingly
concerned in the importation of methyldesorphine (Class A), what
would a jury make of his defence that he believed it to be
methylphenidate (Class B) or methaqualone (Class C)?

Fortunately the legislative history provides a clear resolution
of these problems. Under section 304 of the Customs and Excise
Act 1952 the offences which are now the subject of section 170 of
the Act of 1979 were uniformly punishable by a maximum of 2
years' imprisonment "save where, in the case of an offence in
connection with a prohibition or restriction, a penalty is expressly
provided for that offence by the enactment or other instrument
imposing the prohibition or restriction." No special penalty was
imposed by any statute for offences under section 304 of the Act
of 1952 in connection with the importation of prohibited drugs
until the Dangerous Drugs Act 1967. Section 7(1) of the Act of
1967 increased from 2 to 10 years the maximum sentence of
imprisonment which could be imposed for offences under section
304 of the Act of 1952 in connection with the importation of
certain drugs, including cannabis, prohibited by the Dangerous
Drugs Act 1965. It was against this statutory background that
Reg. v. Hussain [1969] 2 Q.B. 567 was decided.

The Misuse of Drugs Act 1971 repealed the earlier
legislation and enacted a new and comprehensive code intended,
one may reasonably suppose, to arm the courts with all the
criminal sanctions they would need to counter the growing drugs
problem. The Act created, inter alia, the offence of possessing
controlled drugs: section 5(2). Different maximum penalties
attached to this offence according to whether the drug the subject
of the offence was of Class A, B or C: section 25 and Schedule 4.
Parliament clearly appreciated the difficulty they would create if
it were necessary for the prosecution to prove, on a charge of
possession of a drug of a particular Class, not only the fact of
possession of a drug of that Class, but also guilty knowledge that
the drug was of that Class. Section 28(3) provides:

"Where in any proceedings for an offence to which this
section applies [which includes an offence under section 5(2)]
it is necessary, if the accused is to be convicted of the
offence charged, for the prosecution to prove that some
substance or product involved in the alleged offence was the
controlled drug which the prosecution alleges it to have
been, and it is proved that the substance or product in
question was that controlled drug, the accused -

1. shall not be acquitted of the offence charged
   by reason only of proving that he neither knew
   nor suspected nor had reason to suspect that
   the substance or product in question was the
   particular controlled drug alleged; but

2. shall be acquitted thereof -

- 7 -

(i) if he proves that he neither believed nor
suspected nor had reason to suspect that the
substance or product in question was a
controlled drug. . ."

Thus, on a charge of possessing a Class A drug (maximum 7 years)
and on proof that the drug in possession of the accused was in
fact of Class A, it will be no defence for him to persuade the
jury that he believed it to be of Class B (maximum 5 years) or
Class C (maximum 2 years). In other words the only mens rea
required for the offence of possessing a drug in any specified
Class is knowledge that it was a controlled drug. I have chosen
the offence of possession to illustrate the point, but section 28
also applies to a number of other offences where, without such a
provision as is found in subsection (3), the almost insurmountable
difficulty, to which I have earlier alluded, of proving the
appropriate guilty knowledge, would arise. By section 26, on the
other hand, the maximum sentences for offences under section 304
of the Customs and Excise Act 1952 connected with the
importation of prohibited goods were raised to the limits which we
still find in section 170 and Schedule 1 of the Act of 1979, viz.
14 years in relation to drugs of Class A or Class B, 5 years in
relation to drugs of Class C, and these drug-related importation
offences are not made subject to the provisions of section 28(3) or
to any other provision to the like effect. The only possible
explanation for this is that the Act of 1971 was drafted on the
footing that the decision in Reg. v. Hussain [1969] 2 Q.B. 567
made any such provision unnecessary. Irrespective of the different
penalties attached to offences in connection with the importation
of different categories of prohibited goods, Reg. v. Hussain
established that the only mens rea necessary for proof of any such
offence was knowledge that the goods were subject to a
prohibition on importation. Had it been decided otherwise, as the
appellant submits it should have been, it is surely inconceivable
that Parliament, in the Act of 1971, would not have made
provision such as that which we see in section 28(3) applicable to
drug related offences connected with importation. It follows, in
my opinion, that the decision in Reg. v. Hussain has effectively
been adopted and endorsed by the legislature and thus remains
good law.

As I have already said, the criticism of the passage quoted
from the judge's summing-up based on the submission that Reg. v.
Hussain and Reg. v. Hennessey (Timothy) (1978) 68 Cr. App. R.
419 ought to be overruled is in a sense academic, in that the
prosecution's case against the appellant depended, not on the
actual character of the goods in the importation of which the
appellant had been concerned, but on what the appellant believed
the character of those goods to be. The narrower criticism of the
judge's direction concentrates on that aspect of the case. In such
a case, it is submitted, if the prosecution can establish an attempt
to commit an offence at all on the basis of the appellant's
mistaken belief, the attempted offence under section 170 of the
Act of 1979 can only be related to the attempted importation of a
drug of Class A or Class B, thus bringing it within the category of
offences attracting a maximum penalty of 14 years' imprisonment,
if the appellant's mistaken belief was that it was a drug of Class
A or Class B. From this it follows, the submission continues, that



- 8 -

it was a misdirection to tell the jury that they should convict the
appellant if they were sure "that he knew or believed the
substance was heroin or, in his own expression, dried hash or
cannabis (which is also prohibited) or some other prohibited drug."
I think this submission is strictly correct and that the words "or
some other prohibited drug" amounted to a technical misdirection.
However, I am satisfied it cannot in any way have misled the jury
or diverted them from the only issue which, on the evidence, they
had to decide. The appellant's defence, which the jury not
surprisingly rejected, was that he had himself tested the powdered
substance in question, both before and after importation, and found
it to be harmless. The case for the Crown depended on his own
admissions. These supported the case that all material times until
after his arrest the appellant believed the imported packages to
contain either heroin or cannabis. No other drug was ever
mentioned. The misdirection occasioned no miscarriage of justice
and, so far as this point is concerned, it is a case for the
application of the proviso to section 2(1) of the Criminal Appeal
Act 1968.

The certified question depends on the true construction of
the Criminal Attempts Act 1981. That Act marked an important
new departure since, by section 6, it abolished the offence of
attempt at common law and substituted a new statutory code
governing attempts to commit criminal offences. It was
considered by your Lordships' House last year in Anderton v. Ryan
[1985] AC 560 after the decision in the Court of Appeal which is
the subject of the present appeal. That might seem an
appropriate starting point from which to examine the issues arising
in this appeal. But your Lordships have been invited to exercise
the power under the Practice Statement (Judicial Precedent) [1966]
1 W.L.R. 1234 to depart from the reasoning in that decision if it
proves necessary to do so in order to affirm the convictions
appealed against in the instant case. I was not only a party to
the decision in Anderton v. Ryan, I was also the author of one of
the two opinions approved by the majority which must be taken to
express the House's ratio. That seems to me to afford a sound
reason why, on being invited to re-examine the language of the
statute in its application to the facts of this appeal, I should
initially seek to put out of mind what I said in Anderton v. Ryan.
Accordingly I propose to approach the issue in the first place as
an exercise in statutory construction, applying the language of the
Act to the facts of the case, as if the matter were res Integra.
If this leads me to the conclusion that the appellant was not
guilty of any attempt to commit a relevant offence, that will be
the end of the matter. But if this initial exercise inclines me to
reach a contrary conclusion, it will then be necessary to consider
whether the precedent set by Anderton v. Ryan bars that
conclusion or whether it can be surmounted either on the ground
that the earlier decision is distinguishable or that it would be
appropriate to depart from it under the Practice Statement.

The Act of 1981 provides by section 1:

"(1) If, with intent to commit an offence to which
this section applies, a person does an act which
is more than merely preparatory to the
commission of the offence, he is guilty of
attempting to commit the offence.

- 9 -

2. A person may be guilty of attempting to
   commit an offence to which this section applies
   even though the facts are such that the
   commission of the offence is impossible.

3. In any case where -




1. apart from this subsection a person's intention
   would not be regarded as having amounted to
   an intent to commit an offence; but

2. if the facts of the case had been as he
   believed them to be, his intention would be so
   regarded.

then, for the purposes of subsection (1) above,
he shall be regarded as having had an intent to
commit that offence.

(4) This section applies to any offence which, if it
were completed, would be triable in England
and Wales as an indictable offence, other than

1. conspiracy (at common law or under section 1
   of the Criminal Law Act 1977 or any other
   enactment);

2. aiding, abetting, counselling, procuring or
   suborning the commission of an offence;

(c) offences under section 4(1) (assisting offenders)
or 5(1) (accepting or agreeing to accept
consideration for not disclosing information
about an arrestable offence) of the Criminal
Law Act 1967."

Applying this language to the facts of the case, the first
question to be asked is whether the appellant intended to commit
the offences of being knowingly concerned in dealing with and
harbouring drugs of Class A or Class B with intent to evade the
prohibition on their importation. Translated into more homely
language the question may be rephrased, without in any way
altering its legal significance, in the following terms: did the
appellant intend to receive and store (harbour) and in due course
pass on to third parties (deal with) packages of heroin or cannabis
which he knew had been smuggled into England from India? The
answer is plainly yes, he did. Next, did he in relation to each
offence, do an act which was more than merely preparatory to the
commission of the offence? The act relied on in relation to
harbouring was the receipt and retention of the packages found in
the lining of the suitcase. The act relied on in relation to dealing
was the meeting at Southall station with the intended recipient of
one of the packages. In each case the act was clearly more than
preparatory to the commission of the intended offence; it was not
and could not be more than merely preparatory to the commission
of the actual offence, because the facts were such that the
commission of the actual offence was impossible. Here then is



- 10 -

the nub of the matter. Does the "act which is more than merely
preparatory to the commission of the offence" in section 1(1) of
the Act of 1981 (the actus reus of the statutory offence of
attempt) require any more than an act which is more than merely
preparatory to the commission of the offence which the defendant
intended to commit? Section 1(2) must surely indicate a negative
answer; if it were otherwise, whenever the facts were such that
the commission of the actual offence was impossible, it would be
impossible to prove an act more than merely preparatory to the
commission of that offence and subsections (1) and (2) would
contradict each other.

This very simple, perhaps over simple, analysis leads me to
the provisional conclusion that the appellant was rightly convicted
of the two offences of attempt with which he was charged. But
can this conclusion stand with Anderton v. Ryan? The appellant in
that case was charged with an attempt to handle stolen goods.
She bought a video recorder believing it to be stolen. On the
facts as they were to be assumed it was not stolen. By a
majority the House decided that she was entitled to be acquitted.
I have re-examined the case with care. If I could extract from
the speech of Lord Roskill or from my own speech a clear and
coherent principle distinguishing those cases of attempting the
impossible which amount to offences under the statute from those
which do not, I should have to consider carefully on which side of
the line the instant case fell. But I have to confess that I can
find no such principle.

Running through Lord Roskill's speech and my own in
Anderton v. Ryan is the concept of "objectively innocent" acts
which, in my speech certainly, are contrasted with "guilty acts."
A few citations will make this clear. Lord Roskill said, at [1985]
A.C. 560, 580:

"My Lords, it has been strenuously and ably argued for the
respondent that these provisions involve that a defendant is
liable to conviction for an attempt even where his actions
are innocent but he erroneously believes facts which, if
true, would make those actions criminal, and further, that
he is liable to such conviction whether or not in the event
his intended course of action is completed."

He proceeded to reject the argument. At p. 582 I referred
to the appellant's purchase of the video recorder and said:

"Objectively considered, therefore, her purchase of the
recorder was a perfectly proper commercial transaction."

A further passage from my speech proceeded, at pp. 582-583
as:

"The question may be stated in abstract terms as follows.
Does section 1 of the Act of 1981 create a new offence of
attempt where a person embarks on and completes a course
of conduct which is objectively innocent, solely on the
ground that the person mistakenly believes facts which, if
true, would make that course of conduct a complete crime?
If the question must be answered affirmatively it requires



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convictions in a number of surprising cases: the classic case,
put by Bramwell B. in Reg. v. Collins (1864) 9 Cox C.C.
497, of the man who takes away his own umbrella from a
stand, believing it not to be his own and with intent to
steal it; the case of the man who has consensual intercourse
with a girl over 16 believing her to be under that age; the
case of the art dealer who sells a picture which he
represents to be and which is in fact a genuine Picasso, but
which the dealer mistakenly believes to be a fake.

The common feature of all these cases, including that under
appeal, is that the mind alone is guilty, the act is
innocent."

I then contrasted the case of the man who attempts to pick
the empty pocket, saying:

"Putting the hand in the pocket is the guilty act, the intent
to steal is the guilty mind, the offence is appropriately
dealt with as an attempt, and the impossibility of
committing the full offence for want of anything in the
pocket to steal is declared by [subsection (2)] to be no
obstacle to conviction."

If we fell into error, it is clear that our concern was to
avoid convictions in situations which most people, as a matter of
common sense, would not regard as involving criminality. In this
connection it is to be regretted that we did not take due note of
paragraph 2.97 of the Law Commission's report (Criminal Law:
Attempt, and Impossibility in Relation to Attempt, Conspiracy and
Incitement (1980) (Law Commission No. 102)) which preceded the
enactment of the Act of 1981, which reads:

"If it is right in principle that an attempt should be
chargeable even though the crime which it is sought to
commit could not possibly be committed, we do not think
that we should be deterred by the consideration that such a
change in our law would also cover some extreme and
exceptional cases in which a prosecution would be
theoretically possible. An example would be where a person
is offered goods at such a low price that he believes that
they are stolen, when in fact they are not; if he actually
purchases them, upon the principles which we have discussed
he would be liable for an attempt to handle stolen goods.
Another case which has been much debated is that raised in
argument by Bramwell B. in Reg. v. Collins (1864) 9 Cox
C.C. 497. If A takes his own umbrella, mistaking it for one
belonging to B and intending to steal B's umbrella, is he
guilty of attempted theft? Again, on the principles which
we have discussed he would in theory be guilty, but in
neither case would it be realistic to suppose that a
complaint would be made or that a prosecution would

ensue."

The prosecution in Anderton v. Ryan itself falsified the
Commission's prognosis in one of the "extreme and exceptional
cases." It nevertheless probably holds good for other such cases,
particularly that of the young man having sexual intercourse with
a girl over 16, mistakenly believing her to be under that age, by
which both Lord Roskill and I were much troubled.

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However that may be, the distinction between acts which
are "objectively innocent" and those which are not is an essential
element in the reasoning in Anderton v; Ryan and the decision,
unless it can be supported on some other ground, must stand or
fall by the validity of this distinction. I am satisfied on further
consideration that the concept of "objective innocence" is incapable
of sensible application in relation to the law of criminal attempts.
The reason for this is that any attempt to commit an offence
which involves "an act which is more than merely preparatory to
the commission of the offence" but for any reason fails, so that in
the event no offence is committed, must ex hypothesi, from the
point view of the criminal law, be "objectively innocent." What
turns what would otherwise, from the point of view of the
criminal law, be an innocent act into a crime is the intent of the
actor to commit an offence. I say "from the point of view of the
criminal law" because the law of tort must surely here be quite
irrelevant. A. puts his hand into B.'s pocket. Whether or not
there is anything in the pocket capable of being stolen, if A.
intends to steal, his act is a criminal attempt; if he does not so
intend, his act is innocent. A. plunges a knife into a bolster in a
bed. To avoid the complication of an offence of criminal damage,
assume it to be A.'s bolster. If A. believes the bolster to be his
enemy B. and intends to kill him, his act is an attempt to murder
B.; if he knows the bolster is only a bolster, his act is innocent.
These considerations lead me to the conclusion that the distinction
sought to be drawn in Anderton v. Ryan between innocent and
guilty acts considered "objectively" and independently of the state
of mind of the actor cannot be sensibly maintained.

Another conceivable ground of distinction which was to some
extent canvassed in argument, both in Anderton v. Ryan and in the
instant case, though no trace of it appears in the speeches in
Anderton v. Ryan, is a distinction which would make guilt or
innocence of the crime of attempt in a case of mistaken belief
dependent on what, for want of a better phrase, I will call the
defendant's dominant intention. According to the theory necessary
to sustain this distinction, the appellant's dominant intention in
Anderton v. Ryan was to buy a cheap video recorder; her belief
that it was stolen was merely incidental. Likewise in the
hypothetical case of attempted unlawful sexual intercourse, the
young man's dominant intention was to have intercourse with the
particular girl; his mistaken belief that she was under 16 was
merely incidental. By contrast, in the instant case the appellant's
dominant intention was to receive and distribute illegally imported
heroin or cannabis.

Whilst I see the superficial attraction of this suggested
ground of distinction, I also see formidable practical difficulties in
its application. By what test is a jury to be told that a
defendant's dominant intention is to be recognised and distinguished
from his incidental but mistaken belief? But there is perhaps a
more formidable theoretical difficulty. If this ground of
distinction is relied on to support the acquittal of the appellant in
Anderton v. Ryan, it can only do so on the basis that her
mistaken belief that the video recorder was stolen played no
significant part in her decision to buy it and therefore she may be
acquitted of the intent to handle stolen goods. But this line of
reasoning runs into head-on collision with section 1(3) of the Act

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of 1981. The theory produces a situation where, apart from the
subsection, her intention would not be regarded as having amounted
to any intent to commit an offence. Section l(3)(b) then requires
one to ask whether, if the video recorder had in fact been stolen,
her intention would have been regarded as an intent to handle
stolen goods. The answer must clearly be yes, it would. If she
had bought the video recorder knowing it to be stolen, when in
fact it was, it would have availed her nothing to say that her
dominant intention was to buy a video recorder because it was
cheap and that her knowledge that it was stolen was merely
incidental. This seems to me fatal to the dominant intention
theory.

I am thus led to the conclusion that there is no valid
ground on which Anderton v. Ryan can be distinguished. I have
made clear my own conviction, which as a party to the decision
(and craving the indulgence of my noble and learned friends who
agreed in it) I am the readier to express, that the decision was
wrong. What then is to be done? If the case is indistinguishable,
the application of the strict doctrine of precedent would require
that the present appeal be allowed. Is it permissible to depart
from precedent under the Practice Statement (Judicial Precedent)
[1966] 1 W.L.R. 1234 notwithstanding the especial need for
certainty in the criminal law? The following considerations lead
me to answer that question affirmatively. First, I am undeterred
by the consideration that the decision in Anderton v. Ryan was so
recent. The Practice Statement is an effective abandonment of
our pretention to infallibility. If a serious error embodied in a
decision of this House has distorted the law, the sooner it is
corrected the better. Secondly, I cannot see how, in the very
nature of the case, anyone could have acted in reliance on the law
as propounded in Anderton v. Ryan in the belief that he was
acting innocently and now find that, after all, he is to be held to
have committed a criminal offence. Thirdly, to hold the House
bound to follow Anderton v. Ryan because it cannot be
distinguished and to allow the appeal in this case would, it seems
to me, be tantamount to a declaration that the Act of 1981 left
the law of criminal attempts unchanged following the decision in
Reg. v. Smith (Roger) [1975] AC 476. Finally, if. contrary to my
present view, there is a valid ground on which it would be proper
to distinguish cases similar to that considered in Anderton v. Ryan,
my present opinion on that point would not foreclose the option of
making such a distinction in some future case.

I cannot conclude this opinion without disclosing that I have
had the advantage, since the conclusion of the argument in this
appeal, of reading an article by Professor Glanville Williams
entitled "The Lords and Impossible Attempts, or Quis Custodiet
Ipsos Custodes? "[1986] C.L.J. 33. The language in which he
criticises the decision in Anderton v. Ryan is not conspicuous for
its moderation, but it would be foolish, on that account, not to
recognise the force of the criticism and churlish not to
acknowledge the assistance I have derived from it.

I would answer the certified question in the affirmative and
dismiss the appeal.

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LORD MACKAY OF CLASHFERN
My Lords,

I have had the advantage of reading in draft the speeches
prepared by my noble and learned friends the Lord Chancellor and
Lord Bridge of Harwich. I agree with the disposal of this appeal
proposed by my noble and learned friend Lord Bridge of Harwich.
On the relatively minor point referred to in the speech of the
Lord Chancellor in which he differs from Lord Bridge I agree with
the Lord Chancellor's view. Otherwise I agree with the reasons
given by my noble and learned friend Lord Bridge of Harwich.

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