Mental Element

Cases

DPP -v- Anton Mulder

[2009] IECCA 45 (27 April 2009)

 

THE COURT OF CRIMINAL APPEAL

 

Kearns J.
Irvine J.
Edwards J.
[C.C.A. No. 17 of 2008]

 

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT
AND

ANTON MULDER
APPLICANT

JUDGMENT of the Court delivered on the 27th day of April, 2009 by Kearns J.

On 14th January, 2008 the applicant pleaded not guilty to the murder by strangulation of his wife at their family home in Dunshaughlin, County Meath on 17th December, 2004. Following a trial in the Central Criminal Court, the applicant was convicted of murder by the jury on 25th January, 2008 and received a sentence of life imprisonment.

This was the second occasion upon which the applicant had been tried for this offence. In a previous trial in May, 2006, the applicant was also convicted of the same offence, but that conviction was set aside by this Court because a brother of the deceased had spoken to a member of the jury outside the courtroom. At the time of the second trial, there had been a change in the law by virtue of the enactment of the Criminal Law (Insanity) Act, 2006, which introduced into Irish law the concept of diminished responsibility. On arraignment, however, the applicant simply pleaded “not guilty” to the offence of murder.

Section 6 of the Criminal Law (Insanity) Act, 2006 provides as follows:-
“(1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person –
(a) did the act alleged
(b) was at the time suffering from a mental disorder, and
(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,
the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.
(2) Subject to section 5(4), where a person is tried for the offence specified in subsection 1, it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence…”

As the onus of proof in respect of this issue fell on the applicant, the defence led evidence as to the mental state of the applicant from Dr. Harry Kennedy, who first examined the applicant on 20th December, 2004, some three days after the offence. The main defence psychiatrist, however, was Dr. Conor O’Neill who interviewed the applicant at Wheatfield Prison in a series of interviews commencing in May, 2006. The defence also sought to call another psychiatrist, Dr. Sally Lenihan, who first assessed the applicant in August, 2007. It was frankly conceded on behalf of the applicant that the sole purpose in calling Dr. Lenihan was to give evidence as to the mental condition of the applicant at the time of trial.

In making the application to the trial judge, Mr. Roderick O’Hanlon, senior counsel for the applicant, told the court in express terms that Doctor Lenihan would not express an opinion as to the cause of any depression suffered by the applicant, but rather would confirm as a result of the history she obtained that the applicant had been continued on anti-depressant medication. Mr. O’Hanlon informed the Court that the purpose of calling this evidence was to support the evidence to be given by the two psychiatrists who he intended to call as witnesses in the case. The prosecution objected to the admission of the evidence of Dr. Lenihan on the basis that it was irrelevant and could say nothing to the mental state of the applicant at the time of the offence. In ruling on the application, the learned trial judge indicated that he would not admit the evidence de bene esse but would defer any final decision until a proper basis for the introduction of such evidence had been laid by the other psychiatrists intended to be called by the applicant.

Dr. Harry Kennedy is a Consultant Forensic Psychiatrist and Clinical Director of the Central Mental Hospital. He was the first witness called by the defence and gave evidence which was effectively confined to a recital of his notes on the case. He interviewed the applicant on 20th December, 2004 in Cloverhill Prison and saw him on a second occasion on 6th April, 2005 at the same location. His notes recorded that at the conclusion of the first interview he prescribed 10mg. of Olanzapine at night for the applicant. When he saw the applicant on the second occasion he was already taking both this medication and 20 mg. of Citalopram, an anti-depressant drug. Dr. Kennedy clarified that the latter medication was an anti-psychotic drug which was taken in low dosage and was commonly used to reduce agitation, anxiety and a range of related symptoms. Dr. Kennedy formed the view on the occasion of his second assessment that the applicant should come off Citalopram and move onto a different anti-depressant, Mirtazapine. Dr. Kennedy confirmed in cross-examination that the applicant was not and never had been a patient in a mental hospital. He accepted that the applicant had been referred to him by his general practitioner because of the suicide risk which might arise by virtue of the fact that the applicant had been charged with the death of his wife. He stated that there was a raised risk of self-harm within the first few days of being in custody. Dr. Kennedy accepted that the fact that one had been charged with such a serious offence would in its own right put a person into a “depressed mode”.

Dr. Conor O’Neill is a Consultant Forensic Psychiatrist at the Central Mental Hospital in Dundrum. He was also called by the defence and was their main witness. His assessment of the applicant was based on a series of interviews with the applicant at Wheatfield Prison since May, 2006. For this purpose, Dr. O’Neill accessed the Book of Evidence, the applicant’s medical notes, and the video tapes of the garda interviews. He also spoke with the applicant’s mother in South Africa. He accepted that there was very little in the family history of relevance and that there was no history of mental illness in the family. He told the Court that the applicant himself had described a history of depressed mood in the two years prior to the offence, particularly over the five months preceding the offence, when his wife had suffered a miscarriage. He described a number of biological features of depression during that period, including loss of appetite and significant weight loss. He also described feelings of distress in the context of the deteriorating relationship with his wife. Having examined Dr. Kennedy’s notes, Dr. O’Neill was of the view that Mr. Mulder had described symptoms which “could be” compatible with a depressive illness prior to the alleged offence. He formed the view that the applicant was suffering from a mild to moderate (closer to moderate) depressive episode with somatic symptoms at the time of the offence and that this condition had been present for a period of several months prior to the offence. He offered his opinion that this condition would come under the definition of ‘mental disorder’ as described in s. 1 of the Criminal Law (Insanity) Act 2006.

In cross-examination, Dr. O’Neill contested any suggestion that the applicant was either cunning or deceitful in the course of interview with him. He dismissed as unlikely the suggestion made by counsel for the prosecution that the applicant’s weight loss was due to the fact that the applicant’s wife had returned to Northern Ireland and that he was not eating properly. Dr. O’Neill accepted that the applicant had been depressed since his incarceration. He accepted that incarceration could explain depression and that “it is certainly a very difficult situation to be in prison” but nonetheless maintained that symptoms of depression had appeared in the case of the applicant some months prior to the offence.

By way of rebuttal evidence, the prosecution led evidence from Dr. Paul O’Connell, who is also a Consultant Forensic Psychiatrist based in the Central Mental Hospital in Dundrum. He first saw the applicant on 13th January, 2008 in a five hour interview which took place at Wheatfield Prison. He also viewed the videos of the applicant’s interviews with the gardai and reviewed the Book of Evidence. He disagreed with Dr. O’Neill’s view that the applicant was suffering from a mild to moderate depression at the time of the offence. Dr. O’Connell expressed the view that a person in the applicant’s position, with the “enormity of the sentence he had received” was likely to suffer from a depressive adjustment reaction to the enormity of his situation. He did not find the applicant’s account of historical events to be believable or consistent. In his opinion the applicant was a cunning, deceitful and manipulative person. He accepted that the applicant’s lifestyle underwent a significant change in the month or so before the death of his wife in that he became physically much busier caring for the various needs of his family. That in itself may have had an impact on his weight loss simply by reason of heightened physical activity. It was put to Dr. O’Connell that a number of witnesses had described how in the months prior to the offence the applicant appeared to have changed and to have actually become more pleasant and agreeable. Dr. O’Connell felt that such evidence was inconsistent with the diagnosis of major mental illness or depression.

Mr. O’Hanlon’s sole grounds of appeal relate to the manner in which the application to introduce the evidence of Dr. Lenihan was dealt with by the trial judge and to certain evidence given by Dr. O’Connell. In written submissions he contends that the applicant should have been allowed to call Dr. Lenihan to give evidence as to the current mental condition of the applicant. He submitted that such evidence would give weight and support to the opinion given by Dr. O’Neill as to the mental condition of the applicant at the time of the offence.

This ground of appeal may be quickly disposed of. Firstly, the learned trial judge did not rule out altogether the possibility that the evidence of Dr. Lenihan might be given at some stage. His ruling simply was to the effect that he would not accept such evidence de bene esse until a proper foundation for the leading of such evidence had been laid. Having adduced the evidence of Dr. Kennedy and Dr. O’Neill, the defence made no further application thereafter to call Dr. Lenihan as a witness in the case. Quite apart from that, the Court is strongly of the view that such evidence would have been entirely irrelevant, confined as it was to the mental state of the applicant at the time of his second trial. It could offer nothing by way of evidence to the mental state of the applicant at the time of the offence. In this context, the Court particularly bears in mind that the applicant was in custody from the time of the offence until the time of both his first and subsequent trial, a fact which both Dr. O’Neill and Dr. O’Connell underlined could of itself explain symptoms of depression evident at time of trial. The Court is thus satisfied that no incorrect ruling of any nature was made on this aspect of the case.

Mr. O’Hanlon’s other complaints relate to the manner in which Dr. O’Connell gave his evidence. He correctly points out that Dr. O’Connell gave evidence that the appellant had received a prison sentence following the first trial. He had stated “Now, I would have contact with the prisoner in a custodial setting like this with the enormity of the sentence he had received …”
Mr. O’Hanlon claimed that this evidence was prejudicial to the applicant, that he had no advance notice of it, and that the trial judge should have withdrawn the case from the jury for that reason. The Court does not agree. The applicant’s own psychiatrist, Dr. O’Neill, as already indicated, made reference to the fact of the applicant’s incarceration prior to the second trial. Any meaningful evaluation of the applicant’s mental condition could not have been conducted without reference to the incarceration having regard to the very obvious fact that incarceration could be the complete, or partial, explanation of any symptoms of depression found by Dr. O’Neill. It would have been an exercise in total unreality to try and evaluate a condition of depression some years after the offence without factoring in the incarceration. In an effort to be scrupulously fair, the trial judge nonetheless offered to give the jury any direction which the defence considered appropriate to remedy this supposed ‘mischief’, but this offer was not availed of by the defence. The Court is satisfied that this point is also one without merit or substance.

Finally, Mr. O’Hanlon raised objection to the comments offered by Dr. O’Connell to the effect that the applicant was “cunning, deceitful, manipulative and plausible”. He submitted that this evidence was prejudicial and had no probative value. He submitted that it was not true psychiatric evidence.

However, the Court is satisfied that the comments in question arose necessarily from the obligation on the part of Dr. O’Connell to give a frank opinion as to whether the applicant was in fact suffering from depression at the time of the offence and to offer an opinion having regard to his assessment and the materials and notes which he examined. Dr. O’Connell was, in the opinion of the Court, offering this view in part explanation for his conclusion that the applicant was not suffering from depression. He gave his reasons for that conclusion and was fully cross-examined in respect thereof. There was no application made to discharge the jury by reason of anything said by Dr. O’Connell and the Court is also satisfied that this ground of appeal must fail. The Court is further satisfied that the defence was not put, as suggested by Mr. O’Hanlon, at any disadvantage at any stage of the trial by reason of the manner in which the learned trial judge dealt with the admissibility of the psychiatric evidence.

In all the circumstances, the Court will dismiss the appeal.

Maguire v Shannon Regional Fisheries Board

[1994] 2 ILRM 253

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 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 tributary of the Finaway River/Mount Nugent River) deleterious matter (to wit whey and effluent) contrary to s. 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 30 and 31 July 1992.

(2) In February 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 system’s 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 a.m., 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 a.m. on Thursday, 30 July.

(10) Peter McDermott, the general manager of Bernard Maguire’s piggery operations, arrived at the site about 10 a.m. and took charge of the situation.

(11) Two dams were erected on the Finaway River between 10 a.m. and 11 a.m. 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 a.m.

(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 20 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 20 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 20 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 p.m.

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

(17) The whey from the piggery unit which flowed into the Finaway River on 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 s. 171 of the Fisheries (Consolidation) Act 1959.

The Fisheries (Consolidation) Act 1959
S. 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. S. 171 of the 1959 Act as amended by s. 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) Ltd v. Attorney General of Hong Kong [1985] AC 1, 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 People (DPP) v. Murray [1977] IR 360; Inspector of Taxes v. Kiernan [1981] IR 117, [1982] ILRM 13; Duncan v. Gleeson [1969] IR 116; Reynolds v. G.H. Austin & Sons Ltd [1951] 2 KB 135; Lim Chin Aik v. The Queen [1963] AC 160 and Sweet v. Parsley [1970] AC 132.

(2) Counsel for the appellant further submitted that even if s. 171 of the 1959 Act 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, above, Price v. Cromack [1975] 2 All ER 113 and distinguished the House of Lords decision in Alphacell Ltd v. Woodward [1972] AC 824.

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

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

Subs. (3) has itself been replaced by a more detailed subsection by s. 3(1)(a) of the 1990 Act 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 to waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention.

The original s. 3(3) of the 1977 Act and the substituted subs. (3) of that section indicate that:

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

(b) S. 171 of the 1959 Act 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.

As regards causation, counsel for the respondent 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 Ltd v. Woodward above.

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 QB 918 and Toppin v. Marcus [1908] 2 IR 423.

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

I think that the judgment of Wright J in Sherras v. De Rutzen 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….

[T]he 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 are notcriminal 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, e.g., Attorney General v. Lockwood, where the innocent possession of liquorice by a beer retailer was held an offence. So under the Adulteration Acts, R. v. Woodrow 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: R. 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 and Barnes v. Akroyd. 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 perWilliams 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 s. 171 of the 1959 Act. However, it seems to me that s. 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 fulfils 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 Ltd v. Woodward, Lord Wilberforce says at the bottom of p. 834 and the top of p. 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 s. 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 s. 171(1)(b) of the 1959 Act 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 common sense 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 Ltd v. Woodward 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 p. 847 paragraph D and pp. 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. S. 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 Act of 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 per Wright J referred to with approval by my noble and learned friends Lord Reid and Lord Diplock in Sweet v. Parsley. I can see no valid reason for reading the word ‘intentionally’, ‘knowingly’ or ‘negligently’ into s. 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 held to be the law that no conviction could be obtained under the Act of 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 lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate, hence s. 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 s. 171 of the 1959 Act. 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 s. 171 of the 1959 Act. 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 s. 171(1)(b) of the 1959 Act. 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.