REGINA (RESPONDENT) v. HERON (APPELLANT)
REGINA (RESPONDENT) v. STOREY (APPELLANT)
REGINA (RESPONDENT) v. THOMAS (APPELLANT)
(CONSOLIDATED APPEALS)
(ON APPEAL FROM THE COURT OF APPEAL
(CRIMINAL DIVISION))
Lord Wilberforce
Lord Simon of Glaisdale
Lord Russell of Killowen
Lord Scarman
Lord Bridge of Harwich
Lord Wilberforce
My Lords,
I have had the privilege of reading in draft the speeches to be delivered
by your Lordships. I agree with them and would dismiss the appeals.
Lord Simon of Glaisdale
My Lords,
The appellants were arraigned on an indictment of which the first count
charged a conspiracy to ” falsely make or counterfeit coins resembling
” current gold coins, namely half sovereigns. ” The subject-matter of the
conspiracy charged is enacted in section l(l)(a) of the Coinage Offences Act,
1936:
” (1) Every person who falsely makes or counterfeits any coin
” resembling any current coin shall be guilty of felony and on
” conviction thereof liable—
” (a) in a case where the coin resembles a current gold or silver coin,
” to penal servitude for life or for any term not less than three
“years;”
The appellants pleaded not guilty. The Crown adduced evidence that the
appellants intentionally produced coins resembling half sovereigns, which
are admittedly ” current coin ” within the meaning of the Act. The
Crown produced no evidence as to what the appellants intended to do with
the coins. At the close of the case for the prosecution it was submitted on
behalf of the appellants that, to establish an offence under section 1(1)(a),
the Crown must prove a dishonest intention, an intent to pass the counterfeit
coins as genuine, an intent to defraud—these being merely terminologically
alternative ways of putting the mens rea alleged by the appellants to be
required. The learned trial judge ruled against this submission, whereupon the
appellants changed their pleas to guilty and were convicted. They appealed
to the Court of Appeal (Criminal Division) on the point of law on which
the ruling had gone against them. The Court of Appeal dismissed the
appeal, certifying the following point of law as of general public importance:
” Whether or not the offence of counterfeiting under section 1(1)(a) of
” the Coinage Offences Act 1936 is an absolute offence which requires
” no element of dishonest intent.”
but refused leave to appeal. Such leave was, however, in due course given
by an Appeal Committee of your Lordships’ House.
My Lords, it is common ground that the word ” absolute ” in the certified
question is mistaken and should be deleted. There is no question of the
offence under section l(l)(a) being an offence of strict liability. The issue
is whether it is, in the modern terminology, a crime of basic intent or a
crime of specific intent. The distinction is illuminatingly made in the
judgment of Fauteux J. in Reg. v. George (1960) 128 Can.C.C. 289. 301:
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” In considering the question of mens rea, a distinction is to be made
” between (i) intention as applied to acts considered in relation to their
” purposes and (ii) intention as applied to acts apart from their purposes.
” A general intent attending the commission of an act is, in some cases,
” the only intent required to constitute the crime while, in others, there
” must be, in addition to that general intent, a specific intent attending
” the purpose for the commission of the act.”
A crime which requires proof of the type of intention indicated (i) therein
is a crime of specific intent; a crime which requires only the type of intention
indicated (ii) therein is a crime of basic intent. It is contended on behalf
of the appellants that section l(l)(a) enacted a crime of specific intent—that
it is incumbent on the Crown to show that the state of mind of the accused
extended to a dishonest purpose.
Section 1 must, of course, be construed in the context of the whole Act.
As to this I venture two preliminary observations.
First, for the impression which the statute as a whole makes on me, I
cannot do better than quote the words of Collins J. in Dickins v. Gill [1896]
2 Q.B. 310, 316, dealing with a comparable statute, the Post Office
(Protection) Act, 1884:
” It is obvious that the purpose of the Act is in every way to make
” it illegitimate for persons to do that which by the policy of the law
” can only be done by, or with the authority of, the Crown; the
” section therefore deals with as many possible ways of interfering
” with the monopoly of the Crown as occurred to the draftsman of
” the Act.”
And Stephen in his History of the Criminal Law of England (Vol. III.
p. 179), writing of the provisions of the Coinage Offences Act, 1861:
” [They] are to the last degree explicit and minute. They are
” elaborated to the utmost in order to make it practically impossible to
” suggest any quibble or evasion by which their operation could be
” evaded. They comprehend not merely coining and uttering bad
” money, but making any sort of preparation for that operation, and
” even being in possession of the materials necessary for carrying it
” out.”
So this is the type of Act where I should expect to find considerable
overlapping of offences.
Secondly, the 1936 Act is a Consolidation Act. In Farrell v. Alexander
[1977] AC 59, where your Lordships were concerned with a modern
Consolidation Act, I ventured to describe the modern processes of
consolidation, and to suggest that it was rarely necessary or permissible to
interpret the Consolidation Act by scrutinising the provisions of the Acts
which had been consolidated. But your Lordships are instantly concerned
with consolidation before modern techniques were evolved: the ” Gibson-
” Bowles doctrine ” (that there must be verbatim reproduction of existing
enactment ” with all its blemishes and imperfections; ” otherwise what
purported to be consolidation might be changing the law: see Public Law,
Autumn 1975, p.292) was still potent. Consolidation Acts of this period
may therefore throw up ambiguities, tautologies, contradictions, redundancies
and other problems which can only be resolved by considering the origin of
the provisions in question. This is relevant to an argument advanced on
behalf of the appellants founded on a comparison of sections 1 and 8 of
the 1936 Act.
With these considerations in mind, I turn to the nature of the mens rea
in various other provisions of the 1936 Act in order to see what light they
throw on the intent required to be proved in section 1(1)(a). I deal with
them summarily, without setting out in full all the provisions in question.
First, the statute enacts a number of crimes which are palpably of basic
intent: sections 2(a)(i) (gilding, silvering, filing and altering), 4 (defacing
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coins), 6 (buying or selling etc. counterfeit coins for lower value than their
denominations), 7 (importing and exporting counterfeit coins) and 8 (making,
possessing and selling medals resembling gold or silver coins). It should,
therefore, be a matter of no surprise if section 1(1)(a) also enacts a crime
of basic intent.
Secondly, the Act also contains a number of crimes of specific intent;
which are plainly indicated by the use of the words ” with intent to ” : see
sections 2(a)(ii), 2(a)(iii), 2(b), 3, 5(3) and 5(4). Section 1(1)(a) lacks these
significant words indicating specific intent.
Thirdly, and most striking of all, section 5(6) (uttering) expressly uses
the precise words—” with intent to defraud “—which counsel for the
appellant would have your Lordships understand in section l(l)(a). He
deftly sought to sidestep this difficulty by reference to Selby v. D.P.P. [1972]
A.C. 515, where a majority of their Lordships discounted the significance
of these words in interpreting section 5(3), holding this latter provision
required proof of an intent to defraud notwithstanding the absence of
those words in section 5(3) and their (consequently tautological) presence
in section 5(6). But the basis of this decision was that ” uttering ” involved
inherently a fraudulent intent (see p.538A-D): it was this that led to the
discounting of the absence of the words ” with intent to defraud ” in section
5(3) notwithstanding their presence in section 5(6). As will appear, I can
find nothing in section l(l)(a) which would lead me similarly to discount
the significance of ” with intent to defraud ” in section 5(6).
But counsel for the appellants had two further linked, arguments. First,
although section l(l)(a) did not expressly use the significant words ” with
” intent to defraud “, such an intent is implicit in both the words ” falsely ”
and ” counterfeit “. Secondly, that this is so is borne out by a comparison
with section 8, which enacts what is plainly a crime of basic intent, a
misdemeanour carrying a maximum sentence of one year, as compared
with the felony carrying a maximum sentence of penal servitude for life.
No doubt both ” falsely ” and ” counterfeits ” can import a connotation
of fraud; but they do not necessarily do so. They can as readily bear the
connotation merely of ” spurious “. I think that this is their meaning here:
” falsely makes or counterfeits any coin . . . ” having the same significance
as the words ” false or counterfeit coin ” which recur throughout the Act or
” the false making or counterfeiting of any . . . coin ” in section 9(2)(b).
Section 8 enacts a misdemeanour if any person, without lawful authority
or excuse, ” makes [etc] any medal, cast, coin or other thing . . . resembling
“. . . any current gold or silver coin [etc].” The Court of Appeal dismissed
its relevance to the construction of section 1 : it was, they said, designed to
deal with medals resembling coins. (It is, indeed, the only section which
specifies medals.) But counsel for the appellants emphasized that it also
dealt with coins themselves: in order to obviate redundancy, he argued,
section 8 must establish a lesser crime of basic intent, section 1(1)(a) a
greater crime of specific intent. Averting my eyes conscientiously from the
side-note to section 8, they are nevertheless caught by the presence in the
repeal schedule of the Counterfeit Medal Act, 1883. This is quite sufficient
to vindicate the Court of Appeal; the redundancy of ” coin ” being common
to both sections 1(1)(a) and 8 is to be expected in this Act. However,
if there were really any doubt after this, it would not, in a Consolidation
Act of this period, offend against Farrell v. Alexander to resolve the doubt
by looking at the 1883 Act (“An Act for preventing the Sale of Medals
” resembling Current Coin “); and, sure enough, it is re-enacted in section 8.
As for the respective penalties in section 1(1)(a) and 8, several of the
undoubted crimes of basic intent in the statute carry a maximum penalty of
penal servitude for life: see sections 2(a)(i), 6(1)(a). 9(1), 9(2) and 10.
In the upshot, if I look through section 1(1)(a) I see ultimately the Statute
of Treasons, 1351, whereby false coining was an offence against the Royal
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Prerogative carrying the death penalty: if I look through section 8 I see the
Counterfeit Medal Act, 1883.
The United States authorities which were cited are conflicting; though
I think that the weightier do support the interpretation which counsel for
the appellants sought to put upon ” falsely make and counterfeit. ” But
they were, of course, on different statutes; and they do not persuade me from
the view I have formed construing section 1(1)(a) in the whole context of
this instant Act.
Accordingly it is clear, in my view, that section 1(1)(a) enacts a crime of
basic intent; and I would therefore dismiss the appeal.
Lord Russell of Killowen
My Lords,
The three appellants in this case were charged with conspiracy ” to falsely
” make or counterfeit coins resembling current gold coins, namely half
” sovereigns “. At their trial, when they pleaded not guilty to that charge,
the judge after extensive argument ruled that the offence charged (under
section l(l)(a) of the Coinage Offences Act 1936) did not require, in addition
to proof of intent to produce the coins in question, proof of a further intent of
dishonesty or to defraud, changed their pleas to guilty. In those
circumstances the facts need not be detailed: it was clearly established that
they had together engaged in the production of coins closely resembling
half sovereigns by the use of copper and dies and other processes. On the
indictment there was a second count of conspiracy ” to defraud such persons
” as might be induced to purchase false or counterfeit gold half sovereigns
” by false representations that the same were genuine gold half sovereigns
” and by other false and fraudulent means and devices “. To that count
the appellants pleaded not guilty, and it was ordered to lie on the file.
The appellants appealed against conviction on the ground that the judge’s
ruling was wrong in law, and that it was necessary for the prosecution on
Count 1 to prove dishonest intent. Their appeals were dismissed by the
Court of Appeal (Criminal Division). That court certified that a point of law
of general public importance was involved in their decision and refused
leave to appeal: the appeal is by leave of this House.
The point of law certified was as follows:
“Whether or not the offence of counterfeiting under section l(l)(a)
” of the Coinage Offences Act 1936 is an absolute offence which requires
” no element of dishonest intent “.
My Lords, the word ” absolute ” in that question is not appropriate
insofar as it might suggest that no intent at all is required. On any footing
it is necessary that the appellants should have intended to produce the articles
which they did produce, and that they clearly did intend. The question
is to be considered as if the word ” absolute ” were omitted.
Section 1(1)(a) of the Act of 1936 provides as follows:
” Every person who falsely makes or counterfeits any coin resembling
” any current coin shall be guilty of felony and on conviction thereof
” liable—
” (a) in a case where the coin resembles a current gold or silver coin,
” to penal servitude for life or for any term not less than three
” years.”
Paragraph (b) refers to a case where the coin resembles a current copper
coin, the sentence on conviction being not more than seven years nor less
than three years.
Basically, the appellants’ case relies upon the words ” falsely makes or
” counterfeits ” as importing a requirement of an intent that the false coins
be put to a dishonest use.
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Subsection (2) of section 1 provides :
” (2) The offence of falsely making or counterfeiting a coin shall be
” deemed to be complete although the coin made or counterfeited is
” not in a fit state to be uttered or the making or counterfeiting thereof
” has not been finished or perfected “.
Section 17(b) of the Act relates to the expression ” current coin ” by
providing that, inter alia, ” a coin shall be deemed to be current if it has
” been coined in any of His Majesty’s Mints “, which covers the facts in
this appeal.
Section 2 of the Act details a number of activities, each of which is a
felony punishable with penal servitude for life or for not less than three years.
Under paragraph (a) the activities are gilding or silvering or otherwise by
washing, etc., producing the colour or appearance of gold or silver (i) any
coin whatsoever resembling any current gold or silver coin; (ii) any current
copper coin with intent to make it ” resemble or pass for ” any current
gold or silver coin; (iii) any piece of silver or copper or of coarse gold or
coarse silver or of any metal or mixture of metals (being of a fit size and
figure to be coined) with intent that it should be coined into false and
counterfeit coin resembling any current gold or silver coin.
It is in my opinion clear that there is in those provisions no requirement
of a dishonest uttering. The words ” or pass for ” are not a reference to
dishonest uttering, but are the equivalent of resemble. And in any event
intent to make it ” resemble ” stands on its own as an offence. Where
intent is expressly involved in these offences it goes no further than the
production of an article which is not a current coin but resembles one and
is thus a false or counterfeit coin. Similarly, paragraph (b) of section 2
sets out offences of gilding, etc., any current silver coin with intent to make
it resemble or pass for any current gold coin.
Apart, therefore, from section 1(2), which at least sits ill with the
requirement of a specific dishonest intent in section 1(1), it appears to me
that section 2 is destructive of the contention that, to justify the severity
of the punishment under section 1, a dishonest intent is a requisite.
The language of section 1(1) is, in my opinion, nothing more than the
expression of the activity which produces an article which is referred to in
many places descriptively as ” any false or counterfeit coin “: see, for
example, section 5. subsections (1). (2), (3), (4). (7): section 6, subsection (1):
section 7, subsection (1). A false or counterfeit coin is one which resembles
a genuine current coin but is not, and so is false or counterfeit. It is the
making of such, and no more than the making of such, at which section 1(1)
is aimed.
I do not, my Lords, consider it necessary for my conclusion to involve
myself in matters such as the legislative ancestry of provisions in a
consolidating statute such as is this. I can lick, in private, my wounds
sustained in Farrell v. Alexander, for I find my decision on the 1936 Act,
as it stands, not one of doubt or uncertainty.
I add only that in so far as the argument for the appellants rested in part
on the provisions of section 8 of the Act, it is plain from the schedule of
enactments repealed that its source is outside the main stream of
enactments to protect the coinage.
Accordingly, I would dismiss these consolidated appeals.
Lord Scarman
My Lords,
The certified question in these three consolidated appeals is no longer of
any general public importance. Of course, it remains of importance to the
three appellants who were convicted of conspiring to commit an offence
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under section l(l)(a) of the Coinage Offences Act 1936. But the subsection
with the rest of the Act has now been repealed and replaced by a reforming
piece of legislation, the Forgery and Counterfeiting Act 1981, which came
into force on the 27th October 1981, after the hearing in the Court of
Appeal. The new counterfeiting offence which section 14 of that Act has
substituted for section l(l)(a) of the 1936 Act is formulated in very different
terms. A decision by the House on the repealed subsection will have no
bearing on the true interpretation of the new section. Unless there are
some cases under the old law still awaiting decision, the proper construction
of the old subsection is now only of historical interest.
Accordingly, I propose to be brief. The issue in the case is whether in
order to establish the offence of falsely making or counterfeiting coin under
section l(l)(a) of the 1936 Act it was necessary, as the appellants submit,
to prove an intention to pass or tender the counterfeit coin as genuine
current coin or whether, as the Crown submits, it sufficed to prove only an
intention to make false or counterfeit coin resembling current coin. Put
shortly, did the subsection require proof of an intent to deceive or defraud?
The Court of Appeal has held that it did not. I agree with them. I would,
therefore, dismiss the appeals.
In the course of argument Mr. Blom-Cooper Q.C., for the appellants,
whose first submission was that the subsection plainly meant what he said
it meant, made a subsidiary submission to the effect that because the 1936
Act was a consolidating Act recourse could not be had to its legislative
history in interpreting any of its provisions unless the provision in question
could be shown to be ambiguous. He relied on passages in the speeches of
my noble and learned friends, Lord Wilberforce and Lord Simon of
Glaisdale, in Farrell v. Alexander [1977] AC 59 at pages 73 and 82-85.
Mr. Blom-Cooper had excellent strategic reasons for making his
submission. If there were any difficulty in construing the subsection, a
reference to the history of the legislation would rapidly resolve it in favour of
the meaning put upon it by the Crown and accepted by the Court of Appeal.
I confess that, if I limit my consideration to the subsection in the context
of the 1936 Act and shut out of mind the legislative history, I think there is
a ” real and substantial difficulty ” (Lord Wilberforce, Farrell v. Alexander,
supra, 73B) in determining whether the words ” falsely make or counterfeit
” coin ” refer only to the deliberate act of making false coin or import a
dishonest intention. The statute clearly treated the offence as one of great
gravity: for it was a felony punishable by ” penal servitude for life or for
” any term not less than three years “. Further, the Act included section 8
under which the making of coin resembling in any way current coin was an
offence of strict liability, for which the maximum penalty was a mere one
year’s imprisonment. It could be said that the two sections were concerned
with the same conduct, the difference being in the guilty intent.
Although, confining myself to its context, I would have rejected this view
and resolved the difficulty in favour of the interpretation which the Court of
Appeal accepted, it was a real difficulty which could only be resolved by
selecting an interpretation consistent with the statutory objective. A look
at the history would, however, have immediately resolved the difficulty. The
offence of falsely making or counterfeiting coin had been in the law for
centuries before the predecessor to section 8, namely the Counterfeit Medal
Act 1883 was enacted: and that statute was passed to meet a specific mischief
described in the long title of the Act as ” preventing the sale of medals
” resembling current coin “. The history shows compellingly that it would
be wrong to look to section 8 as an aid to the interpretation of section 1(1).
The discussion in Farrell v. Alexander as to the proper approach to the
construction of consolidating Acts is valuable. I would, however, add two
comments to the guidance there given.
First, when construing a consolidating statute, it is particularly useful to
have recourse to the legislative history if a real difficulty arises. Consolidation
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is, or is intended by Parliament to be, the re-enactment ” in a more
” convenient, lucid and economical form ” (Lord Simon of Glaisdale, loc. cit,
p. 82B) of existing statute law. It is, in its ” pure ” form (as in the 1936 Act)
neither amendment nor reform nor codification, but re-enactment. Strictly,
as draftsmen have always recognised, a pure consolidation must incorporate
the law as it stands, including its difficulties and ambiguities. The earlier
statute law, therefore, and judicial decisions as to its meaning and purpose
are, very relevant, if there be difficulty or ambiguity.
Secondly, I would not think it correct to distinguish between the various
types of consolidation. There are now three and more may be added in the
future. They are: —
-
-
-
” pure ” consolidation, i.e. re-enactment;
-
consolidation with ” corrections and minor improvements “;
-
consolidation with Law Commission amendments.
-
-
I have discussed the first. The second was made possible by the Consolidation
of Enactments (Procedure) Act 1949 which confines permissible amendment
to very minor matters. Certainly that Act in no way changes the essential
character of consolidation, which is re-enactment. It cannot make any less
legitimate a reference to the legislative history where there is difficulty or
ambiguity.
The same observations apply to consolidation with Law Commission
amendments. But here there is an added feature. The Law Commission
publishes a report which specifies the particular mischief (or mischiefs) which
its proposed amendments are intended to remove. It is, therefore, perfectly
plain to what extent one may use legislative history in the interpretation of
a Law Commission consolidation.
For these reasons I would not go further than Lord Wilberforce did in
Farrell v. Alexander, supra, 73B, where he said:
” recourse should only be had [to antecedents] when there is a real and
” substantial difficulty or ambiguity which classical methods of
” construction cannot resolve.”
But, when there is such a difficulty, I believe the courts should not hesitate
to refer to the legislative history. In some cases, as in the present, it will
still doubt and resolve difficulty.
Lord Bridge of Harwich
My Lords,
For the reasons given in the speeches already delivered by your Lordships,
I too would dismiss this appeal.
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