Acts, States of affairs, and possession

Accepting that a person should not be held liable for things which occur
whilst he or she is in an involuntary state amounting to automatism, should
there be a further requirement that liability should be based on acts? At first
blush it seems wrong that people should be held liable for things that
happen to them, or for a simple failure to do something. Do legal systems
succeed in avoiding the creation of offences that do not require an act?

Before sketching answers to those two questions, we must make the point
that not all criminal offences are formulated so as to require proof of a
particular type of act. For some offences, such as wounding and rape, the
definition specifies an act and it is clearly a wrongful act in itself. For other
offences, such as doing an act with intent to impede the apprehension of a
person who has committed an arrestable offence,56 and all crimes of
attempt, the definition requires an act, but not one that is in itself
necessarily wrongful: the intention with which the act is done makes a
crucial contribution to the wrongfulness of the act, but the act requirement
still functions so as to exclude involuntary movements. (Whether ordinary
acts should be penalized simply because of the actor's intentions is
discussed elsewhere. 57) For yet other offences, the definition refers only
to a result (e.g. causing death), and the act requirement is implicit; any
kind of act suffices. Those offences have a tendency to raise questions of
causation (did D's act cause the death?), which draws attention to another
feature of the act requirement: what is necessary is not merely an act, but
an act that causes the conduct or consequence specified in the definition
of the offence. This should rule out cases in which D's act is superseded
by the voluntary intervening act of some third party—where it is the
intervening act, and not D's original act, that is the cause. The
troublesome decisions on voluntary intervening acts are reviewed in
section 4.5.

There are three types of offence that appear to challenge the requirement
of an act. First, there are offences relating to states of affairs: is it right
that a person should be liable to conviction in respect of a state of affairs
that happens to him, and is not his act? Secondly, most criminal codes
contain offences of possession, and it is questionable whether these
require any act. Thirdly, and most obviously, there are offences of
omission. The essence of these offences is that they penalize a person
for doing nothing when he or she should have done something. We
examine in the next section whether, and to what extent, offences of
omission can be justified. In the remainder of this section, states of affairs
and offences of possession are considered.

(p. 96) (a) Situational liability

Are there good reasons for convicting a person simply because a state of
affairs exists, without the person ‘doing’ anything to create or to continue
that state of affairs? The leading case is Larsonneur (1933),58 where D
left England because the duration of her permitted stay had come to an
end. She went to Ireland, from where she was deported back to this
country. On her return, she was convicted of ‘being found in the United
Kingdom’ contrary to the Aliens Order 1920. Her appeal, based on the
argument that her return to England was beyond her control, was
dismissed by the Court of Criminal Appeal. The case is widely criticized:
her return to this country was not her own act, and was contrary to her will
and desire. The Court might have held that there was no voluntary act by
the defendant, since it appears that various officials compelled her return
to this country. It might then have given consideration to the degree of any
prior fault on her part.59 The judgment fails to discuss these points of
principle, and the decision hardly shines as a beacon of common law
reasoning. However, Larsonneur does not stand alone. In Winzar v Chief
Constable of Kent (1983)60 the Divisional Court confirmed a conviction for
being found drunk on a highway, in a case where the defendant had been
taken from a hospital on to the highway by the police. Another similarly
worded offence is that of being drunk in charge of a motor vehicle, and
there are many other offences that impose what Peter Glazebrook has
termed ‘situational liability’.61

We will see in Chapter 5.3(b) how, in certain situations, the courts have
imposed ‘vicarious liability’ on shop owners and employers by construing
statutory words so as to achieve convictions. In effect, these individuals
and companies are being held liable simply for states of affairs—for the
fact that an employee sold American ham as Scottish ham, for example,
even though the shop owner had specifically warned against this.62
However, Andrew Simester has argued that in all these cases it is not the
absence of a required act that is objectionable, but the absence of a fault
element.63 The proper approach, he submits, is evident from two New
Zealand prosecutions of visitors for staying after the expiration of a
visitor's permit. In Finau v Department of Labour (1984)64 the conviction
was quashed because D was pregnant and no airline would carry her. In
Tifaga v Department of Labour (1980)65 the conviction was upheld
because D was at fault in running out of money, with the result that he
could not afford a ticket. The offence did not require an act (or an
omission), but rather a state of affairs for which D was responsible. Thus,
as argued in Chapter 5.3(b), it may be defensible (p. 97) to impose
situational liability if the law is so phrased as to ensure that defendants
are in control of their activities and know about their duty to avoid certain
situations. This insists on a voluntariness requirement, but not an act
requirement. So long as fair warning is given of the standards expected of
those embarking on certain activities or enterprises, the principles of
legality or ‘rule of law’ are satisfied and autonomy is respected.66 The
English legislature, unfortunately, sees no objection to creating state-of-
affairs offences such as ‘being found’ or ‘being drunk in charge’ without
any voluntariness requirement—not even exceptions to cover the person
who has been manhandled into the position in which he or she is found or
the person who has been rendered drunk by the strategem of others.67

It is interesting to contrast English law in this respect with the rules

developed by the Supreme Court of the United States, taking us back to
the ‘prior fault’ doctrine. In Robinson v California,68 the Supreme Court
held that it was unconstitutional, as a form of cruel and unusual
punishment, to make someone criminally liable merely for being a drug
addict. The Robinson decision has been used to strike down state laws
criminalizing simple vagrancy or homelessness. However, in Powell v
Texas,69 this narrow concession was not built on further. The Court held
that where D, a chronic alcoholic, was charged with being found in a state
of intoxication in a public place, his inability (if such it was) to stop drinking
to excess did not make it cruel and unusual to punish him when he
appeared in that state in public. The Powell Court distinguished the
Robinson case on the grounds that in the latter case, D had been
punished with imprisonment merely for being in a certain state, namely
alcoholism. By contrast, the defendant Powell could have avoided public
places when intoxicated even if his intoxication was involuntary (which the
Court doubted that it was). In Powell, thus, D's alcoholism was regarded
as nothing more than an explanation of how he came—voluntarily— to
commit the crime.70
(b) Offences of possession

English law contains several offences of possession, relating to such

items as offensive weapons, 71 any articles for use in a burglary, theft, or
deception,72 and controlled drugs.73 Sometimes possession is the basic
element of a crime in the inchoate mode, such as possessing drugs with
intent to supply.74 In ordinary language, one might agree that it is
possible to possess an item without any act on one's part. Are offences of
(p. 98) this kind therefore contrary to principle? Most of the difficulties with
the concept of possession have arisen in drugs cases. The leading
decision is that of the House of Lords in Warner v Metropolitan Police
Commissioner (1969),75 but neither the speeches of their Lordships nor
subsequent cases have rendered the law clear or principled. The first
proposition is that a person is not in possession of an item that has been
slipped into her bag or pocket without her knowledge. The second
proposition is that if a person knows that an article or container has come
under her control, she is deemed to be in possession of it even if mistaken
about its contents, unless the thing is of a wholly different nature from
what was believed.76 The exception is extremely narrow: Warner
believed that certain bags contained scent when in fact they contained
cannabis, but that was held not to be a sufficiently fundamental mistake,
and his knowledge that he had the bag was sufficient. In Warner Lord
Pearce stated that the mistake would not be sufficiently fundamental if D
thought the containers held sweets or aspirins when in fact they held
heroin.77 The narrowness of this exception to the second proposition
throws attention back to the first proposition, but that has also been
confined tightly. In Lewis (1988)78 it was held that D was rightly convicted
of possessing controlled drugs when they were found in a house of which
he was tenant but which he rarely visited. His defence was that he neither
knew nor suspected that drugs were on the premises. The Court of
Appeal appeared to hold that, since he had the opportunity to search the
house, he should be held to possess items that he did not know about but
could have found. In effect, this reduces the first proposition almost to
vanishing point. Surely it could equally be said, of the person into whose bag
drugs are slipped by some third party, that she could have searched her
bag and found them? Probably this is another example of the so-called ‘war
against drugs’ resulting in the distortion of proper legal standards.

The reason for enacting offences of possession is that they enable the
police to intervene before a particular wrong or harm is done: in effect,
these offences extend the scope of criminal liability beyond the law of
attempts.79 One ground for questioning possession offences is that they
may criminalize people at a point too remote from the ultimate harm, not
allowing for a change of mind. Another pertinent question is whether they
depart from the voluntariness requirement. Although taking possession of
an article will often (but not always) involve some act of the defendant, it is
surely wrong to regard the conduct as voluntary if D was substantially
mistaken as to its contents. Thus the first proposition in Warner is right in
suggesting that possession is not purely a physical matter but does have a
mental component, although wrong in restricting that fault element to the
mere realization that some item or container has arrived in one's pocket,
bag, or house. The Court of Appeal has been pressed to (p. 99) broaden
the fault element, notably in Deyemi and Edwards (2008),80 chiefly by
reference to those House of Lords decisions such as B v DPP and K,81
which stated that the presumption of mens rea is a constitutional principle.
The Court felt itself bound by previous decisions on possession of
firearms, which follow the Warner approach, but certified a point of law of
general public importance for the House of Lords.