CRIMES OF ABSOLUTE PROHIBITION (DEFENCE) (Hansard, 21 May 1968)

§ Mr. Alexander W. Lyon (York)
I beg to move, That leave be given to bring in a Bill to provide a defence in all cases of crimes of absolute prohibition. I may be asked, what is a crime of absolute prohibition, and, to judge from the mood of the House, it appears to be to introduce a Ten Minute Rule Bill just before a major debate. However, the House will notice that, in my Bill, I am providing a defence for that offence. My defence now is that I did not select today's business but had already put down my Motion some time ago, and that this is the procedure which the House has ordained shall be followed in questions of this kind.
This is a most important matter. Some weeks ago, the country was astounded to find that a young girl could be convicted of an offence of managing premises in which cannibis was being smoked—

§ Mr. Speaker
Order. I hesitate to interrupt the hon. Gentleman, but if I am right the young lady has an appeal pending on this matter. If that is so, the matter is now sub judice.

§ Mr. Mark Carlisle (Runcorn)
On a point of order. It is not right that the sub judice rule does not apply if the House is discussing new legislation? Does not leave to bring in a Bill come under the heading of new legislation?

§ Mr. Speaker
I should have thought that the purpose of the sub judice rule was to protect the person involved. I believe that it would be invoked in this case. The hon. Gentleman must address his remarks to the Bill in general terms and not refer to a case which is sub judice.

§ Mr. Lyon
Of course, I accept your Ruling, Mr. Speaker. But it may at some time be necessary for the House to consider why it should be more limited in the application of the sub judice rule than newspapers, who can already comment on cases which have gone to appeal. However, I had not intended to discuss the merits of that case. It is simply that it brought to public attention the whole 295 problem of crimes of absolute prohibition. What I seek to do is to show the House and perhaps the country that this is no isolated case of one piece of legislation. This is not simply a question of one part of the drugs legislation, but affects a wide variety of offences and is becoming an increasing feature of statutory offences.
It began towards the end of the last century, when some offences relating to the provision of food and drugs were interpreted to mean that the person could be convicted even though he did not intend to commit an offence, had no knowledge of it and had taken full care to provide against the commission of the offence. This was gradually extended to a whole range of what are called "welfare cases", which relate not only to the provision of food and drink and the question of licensing, but also, for instance, to safety in factories. Section 14 of the Factories Act, which relates to fencing of machinery and is widely used in the courts, contains, of course, a criminal offence of absolute prohibition.
But it goes wider still, because it affects many serious crimes which the House might be surprised to learn are offences of absolute prohibition. It is, for instance, an offence to drive a motor car in a manner dangerous to the public in all the circumstances, even if one did one's incompetent best to keep within the law. It is, for instance, an offence of statutory prohibition to drive a car without having in force a certificate of third party insurance, even though one thought that one was insured and had taken all reasonable steps to see that one was. If by a mischance one was not insured, one could be convicted of this serious offence and disqualified for driving.
It was, until recently, an offence to marry a woman bigamously even though one thought on reasonable grounds that one had been divorced and it is only recently that the Court of Appeal has changed its mind about this interpretation of the law. It is still an offence for a man to have unlawful sexual intercourse with a girl under the age of 16, even though, on reasonable grounds, he thought that she was 21.
This kind of offence is widely used to achieve certain social purposes. The 296 Times leading article on 3rd May said there were some kinds of offences in which this type of prohibition was necessary and desirable. It said: The appropriateness of absolute liability in certain types of case need not be questioned…. It also said that there are reasons in these welfare cases why it is necessary to have this provision … where, in balancing the public advantage in strict enforcement against the possible injustice of penalising someone who is not personally culpable, it is reasonable to take the more severe course. I do not believe that human freedom and dignity is expendable in that way. There are, of course, occasions when the interests of one person conflict with those of another and society has to try to strike a balance, but in such circumstances there is a balance of advantage to society.
There is no balance of advantage in the case of crimes of strict prohibition, because by making an absolutely unattainable standard of behaviour we say to a man who has done his best to do what can reasonably be expected of him, "You are still guilty of a criminal offence, even though you did your best to avoid such an offence." That brings the law into disrepute.
It is no good saying, as some defenders of this practice say, that the court can always impose a very minor penalty. Men have been sent to prison, deported, and heavily fined for offences of this nature, but even if the only sentence, perhaps on a little shopkeeper charged with one of these welfare offences, is an absolute discharge, it is, nevertheless, a disgrace for him in his locality and can affect his living and his mode of life.
I suggest that the way in which we should approach this problem is to put the burden on the accused of showing that he has done all that could be reasonably expected of him to avoid contravention of the law. What I want to do is bring in a Bill which will give a defence in all these cases that the man himself shall prove, first, that he did not intend to commit the act, and, second, that he had taken all reasonable steps to avoid the commission of the act.
In such circumstances, anyone then convicted of these offences will be a person who has some moral blame. 297 Society will be able to say that the law has been effectively enforced in those cases where it is desirable to enforce it. In every other case it is neither desirable nor to the public advantage to enforce it. I hope that the House will give me leave to introduce my Bill.