824
Lord Kilbrandon Nat Westminster Bank v. Halesowen Presswork (HX.(E.)) [1972]
2 Ch. 293, 310. It was also referred to with approval by Hallett J. in
A
Victoria Products Ltd. v. Tosh & Co. Ltd., 165 L.T. 78, 80.
In my opinion, accordingly, the rule now is that the terms of section 31
are mandatory in the sense that not only do they lay down statutory directives for the administration of claims in bankruptcy but they also make it
impossible for persons effectively to contract, either before or after an
act of bankruptcy has occurred, with a view to the bankruptcy being
administered otherwise than in accordance with the statutory directives. B
In other words, as Lord Denning M.R. said in Rolls Razor Ltd. v. Cox
[1967] 1 Q.B. 552, 570, "the parties cannot contract out of the statute."
I must admit to having been impressed by the argument that such a rule—
enunciated as it was for the first time in 1967 otherwise than by obiter
dicta, albeit some of great weight—may be expected to form a serious
embarrassment to those wishing to adopt the beneficial course of agreeing to
moratoria for the assistance of a business in financial difficulties. But, if ^
that be so, it seems to call for the intervention of the legislature. It is, in
any event, generally agreed that a restatement of the law of bankruptcy,
both for England and for Scotland, is overdue.
For these reasons, I would allow this appeal.
Appeal allowed with costs.
Judgment of Roskill J. restored.
D
Solicitors: Waltons, Bright & Co.; Landau & Co.
M. G.
E
[HOUSE OF LORDS]
ALPHACELL LTD
APPELLANTS
AND
WOODWARD
F
RESPONDENT
1972 March 14, 15;
May 3
Lord Wilberforce, Viscount Dilhorne, Lord Pearson,
Lord Cross of Chelsea and Lord Salmon
River—Pollution—Causation—Effluent in settling tanks—Break- G
down of pumping system—Overflow into river—No knowledge
on part of owner of works that effluent overflowing—No
negligence—Whether guilty of causing polluting matter to enter
river—Rivers (Prevention of Pollution) Act 1951 (14 & 15 Geo.
6, c. 64), s. 2 (1)
Justices—Case stated—Practice—Findings of fact—Merely setting
out evidence no substitute
XI
The premises of the appellants, who manufactured paper
from manilla fibres, were situated on the bank of a river. Their
manufacturing process produced two effluents, boiling liquids,
which were taken away by tanker, and wash water, which was
825
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Alphacell Ltd. v. Woodward (H.L.(E.) )
run into two settling tanks and then recirculated and reused.
From the lower of the settling tanks there was an overflow direct
into the river, and the wash water was prevented from overflowing into the river by two pumps, one operating automatically
when the water reached a certain level, the other being
switched on by hand as a standby. The intake of each pump
was protected by a strainer. The apparatus had been installed for about a year and had never given trouble. The
pumps were inspected each weekend. On the day in question
the appellant's foreman inspected the tanks four times, at 8.15
a.m. when he found that the automatic pump was working and
everything was normal, at 11.30 a.m. when he found that
the water level was rising and switched on the standby pump,
and at 1.15 p.m. and 3.45 p.m. when he found the level unchanged with both pumps working. At 4.30 p.m. an inspector
of the river authority found that polluted water was overflowing into the river at an estimated rate of 250 gallons an
hour. On inspection it was discovered that brambles, ferns
and leaves had got through the strainers of the pumps and
blocked the impellers. The appellants were charged with
causing polluting matter to enter the river contrary to section
2 (1) of the Rivers (Prevention of Pollution) Act 1951.1 The
justices convicted them, and the Divisional Court dismissed
their appeal against conviction.
On appeal by the appellants, contending that they should
have been acquitted since the overflow had taken place without
their knowledge and without negligence on their part: —
Held, dismissing the appeal, that there was no reason to
read " knowingly " into section 2 (1) of the Act of 1951 before
" causes," and the concept of mens rea was inapplicable; that
" causes " was to be given a common sense meaning; and that
the appellants had caused the polluting matter to enter the
river in that the complex operation, which had led inevitably
in the event of the pumps not operating properly to polluting
matter entering the river, had been deliberately conducted by
them and a defect in one stage of it, even assuming that that
had happened without negligence on their part, could not enable them to say that they had not "caused" the polluting
matter to enter the river (post, pp. 834E-H, 840B-D, 841B, 842GH, 845B-D, 846B-D, 847A-B, E-G, 848D, E-F).
F
G
Kirkheaton District Local Board V. Ainley, Sons & Co.
[1892] 2 Q.B. 274, C.A. approved.
Moses v. Midland Railway Co. (1915) 113 L.T. 451 distinguished.
Impress (Worcester) Ltd. v. Rees [1971] 2 All E.R. 357,
D.C. considered.
Per Viscount Dilhorne. The case stated by the justices is
unsatisfactory. It merely sets out the evidence which they
heard and not their conclusions thereon. Merely to set out
the evidence is no substitute for findings of fact (post, p.
837C-D).
Semble. Where acts of third parties or natural forces
amounting to acts of God are involved the riparian owner
may have a defence to a charge under section 2 (1) of causing
matter to enter a stream (post, pp. 835D-E, 845D, 846F-H,
847A-B, F, G-H).
H
Decision of the Divisional Court [1972] 1 Q.B. 127; [1971]
3 W.L.R. 445; [1971] 2 All E.R. 910 affirmed.
'Rivers (Prevention of Pollution) Act 1951, s. 2 (1): "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; . . ."
826
Alphacell Ltd. v. Woodward (H.L.(E.) )
[1972]
The following cases are referred to in their Lordships' opinions:
Cork V. Kirby Maclean Ltd. [1952] 2 All E.R. 402, C.A.
Derbyshire v. Houliston [1897] 1 Q.B. 772, D.C.
Impress (Worcester) Ltd. v. Rees [1971] 2 All E.R. 357, D.C.
Kirkheaton District Local Board v. Ainley, Sons & Co. [1892] 2 Q.B. 274,
C.A.
Leyland Shipping Co. Ltd. v. Norwich Union Fire Insurance Society Ltd.
[1918] A.C. 350, H.L.(E.).
Lomas v. Peek [1947] 2 All E.R. 574, D.C.
Moses v. Midland Railway Co. (1915) 31 T.L.R. 440; 113 L.T. 451.
Rex v. Medley (1834) 6 C. & P. 292.
Sherras v. De Rutzen [1895] 1 Q.B. 918, D.C.
Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R.
347, H.L.(E.).
Yorkshire Dale S.S. Co. Ltd. v. Minister of War Transport; The Coxwold
[1942] A.C. 691; [1942] 2 All E.R. 6, H.L.(E.).
A
B
C
The following additional cases were cited in argument:
Hearne v. Garton (1859) 2 E. & E. 66.
James & Son Ltd. v. Smee [1955] 1 Q.B. 78; [1954] 3 W.L.R. 631; [1954]
3 All E.R. 273, D.C.
Lim Chin Aik v. The Queen [1963] A.C. 160; [1963] 2 W.L.R. 42; [1963]
1 All E.R. 223, P.C.
*>
Lovelace v. Director of Public Prosecutions [1954] 1 W.L.R. 1468; [1954]
3 All E.R. 481, D.C.
McLeod (or Houston) v. Buchanan, 1940 S.C.(H.L.) 17; [1940] 2 All E.R.
179, H.L.(Sc).
Nichols v. Marsland (1876) 2 Ex.D. 1, C.A.
O'Sullivan v. Truth and Sportsman Ltd. (1957) 96 C.L.R. 220.
Reynolds v. G. H. Austin & Sons Ltd. [1951] 2 K.B. 135; [1951] 1 All E.R. E
606, D.C.
Rushton v. Martin [1952] W.N. 258, D.C.
Rylands v. Fletcher (1868) L.R. 3 H.L. 330, H.L.(E.).
Shave v. Rosner [1954] 2 Q.B. 113; [1954] 2 W.L.R. 1057; [1954] 2 All
E.R. 280, D.C.
APPEAL from the Divisional Court of the Queen's Bench Division.
F
This was an appeal by Alphacell Ltd. by leave of the Divisional Court
(Lord Parker C.J., Widgery LJ. and Bridge J.) from their majority
decision (Bridge J. dissenting) on April 2, 1971, by which they dismissed
the appellants' appeal by case stated against their conviction by Bury
justices on an information preferred against them by the respondent, R. E.
Woodward, on behalf of the Mersey and Weaver River Authority that on
November 25, 1969, at their Mount Sion Works, Radcliffe, Lancashire,
they did cause to enter the river Irwell polluting matter, contrary to
seotion 2 (1) of the Rivers (Prevention of Pollution) Act 1951.
The facts are stated in the opinions of Viscount Dilhorne and Lord
Pearson. The case stated is set out in the report below [1972] 1 Q.B. 127,
129-131.
H
F. Maurice Drake Q.C., H. Keith Goddard and Douglas Hogg for the
appellants. Two effluents result from the appellants' system: one very
strong pollutant, which is carried away in sealed tankers, the other correctly
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Alphacell Ltd. v. Woodward (H.L.(E.))
described as not strong or grossly polluted material, though it is polluted.
It is circulated and used again. The appellants' system was constructed
so that the bottom settler overflow would not be used. That overflow
was left over from the appellants' previous system and forms no part of
the present. There was no evidence as to the drains leading into the
bottom tank.
There was evidence on which the justices might have found negligence,
but it was agreed by the river authority and expressly accepted in the
Divisional Court that there was in their finding no finding of negligence,
and it must be assumed that they made no such finding. They found that
what happened was without the intention or knowledge of the appellants
and that it was contrary to their efforts.
The case stated is unsatisfactory in that it finds no facts. It simply
sets out a recitation of the evidence and the justices' conclusion at the
end. The appellants would be happy if the justices' statement that " the
appellants had taken all reasonable steps to make sure water did not escape
into the river " were a finding of fact, but it is really a recitation of the
evidence.
[lain Glidewell Q.C. for the respondent intervening. The respondent
started to make submissions on negligence in the Divisional Court and
was stopped. Since a decision on the major point was wanted, the matter
was not pursued. It would not be open or proper to contend here that
there was negligence.]
There was no evidence led on behalf of the river authority of failure
on the appellants' part to maintain the system.
The Divisional Court did not, unfortunately, see the Law Times report
of Moses V. Midland Railway Co. (1915) 31 T.L.R. 440; 113 L.T. 451:
see per Avory J., 113 L.T. 451, 453. The appellants do not know when
" knowingly " first preceded " permits." All the decisions say that " permitting " involves knowledge. No Act has ever said " knowingly cause "
because there must be something positive in " cause."
It is not sufficient to show that the appellants brought this liquid on
to their land so that if it got beyond a certain level it would overflow.
That would not be the immediate or proximate cause of the overflowing.
It was not putting the liquid in the tanks or allowing it to rise beyond a
certain level which was that cause but the fact that the pumps had broken
down without the appellants' knowledge and contrary to their wishes.
[Reference was made to the Rivers (Prevention of Pollution) Act 1951,
s. 2 (2) (vii) and to the Rivers Pollution Prevention Act 1876.]
The Salmon Fishery Act 1861 also contains a prohibition against " causes
or knowingly permits " (section 5). The appellants know of no reported
case where there was not knowledge or positive conduct on the part of
the defendant. The statement in Halsbury's Laws of England, 3rd ed.,
vol. 39 (1962), p. 741, para. 1081, note (k), is an accurate statement of
the law; see also vol. 10 (1955), p. 279, para. 519, referring to the need
for positive control over the act complained of.
On a statute creating an offence of causing, a person cannot be said
to cause matter to enter a stream if he is ignorant that it is entering the
stream and has not been negligent in any respect. Alternatively, causing
something to happen, at any rate in a statute creating a criminal offence,
828
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
denotes knowledge and some positive act, or at least some positive omission.
If it is possible to commit an offence of causing without knowledge, then,
alternatively, it cannot be said that, if the act takes place without a person's
knowledge and every care is taken to prevent it happening, that person has
" caused " the act.
As to general principles with regard to the interpretation of penal
statutes, there are a vast number of Acts and authorities, but they are
almost all referred to in Sweet v. Parsley [1970] A.C. 132. Reynolds v. B
G. H. Austin & Sons Ltd. [1951] 2 K.B. 135 shows that, in "causes or
knowingly permits," one part, clearly requires knowledge and, therefore,
the other by presumption also clearly requires knowledge. As to whether
" causes " creates an absolute offence, see Lovelace v. Director of Public
Prosecutions [1954] 1 W.L.R. 1468. It might have been said that the appellant plainly caused the play to be presented with the unauthorised addition;
compare the position here, but Lord Goddard C.J. said that he had to C
have knowledge. In Lomas v. Peek [1947] 2 All E.R. 574 Lord Goddard
C.J. said that " permit" must imply knowledge; therefore " knowingly "
in the information was unnecessary: the appellants rely on that. Equally,
" causing " requires knowledge.
There are a vast number of cases where the statute merely refers to
" causing or permitting." Where there is in one section a requirement of r>
knowledge, then the statutory presumption is that in relation to another
offence contained in the same section Parliament intended that knowledge
should also be a requirement of that offence unless there are clear words
indicating the contrary. Derbyshire V. Houliston [1897] 1 Q..B 772 is
a strong case: the Act there contained two sections which had already
been held to create absolute offences. Nevertheless, the court held that,
where in another section there were the words " wilfully " or " knowingly " E
in relation to three offences, then with regard to a fourth offence the
omission of such words led to the presumption that they were to be read
into the statute.
To summarise the appellants' submissions based on the general propositions taken from Sweet v. Parsley [1970] A.C. 132: (1) The courts will not
construe an Act of Parliament as creating an absolute offence unless its p
wording shows clearly that that must of necessity have been the intention of
Parliament: see per Lord Reid, at p. 149; "such cases are very rare"
(p. 148). In so far as there have been a number of cases where the courts
have found such offences to exist, Lord Diplock said, at pp. 163-165, that
in a number of those cases the courts had been wrong. (2) If the wording
of a penal statute is reasonably capable of two interpretations, that which
is more favourable to the accused must be adopted. (3) Where one section G
contains two or more offences and knowledge is stated to be required in
respect of one of them, the presumption is that it is required for the other
offence or offences created by the section, though the presumption may be
displaced by express words. (4) Where in the section creating an offence
by causing there is a " deemed " clause, then there is a presumption, again
on the interpretation of that particular section, that Parliament did not „
intend to create an absolute offence. This is, perhaps, also covered by
(1) above.
[LORD PEARSON. What express words have ever been used?]
829
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Alphacell Ltd. v. Woodward (H.L.(E.) )
As Bridge J. said in the Divisional Court [1972] 1 Q.B. 127, 137,
Parliament could easily have created an absolute offence in terms such
as " every occupier of land from whose land polluting matter enters a
river shall be guilty of an offence." Admittedly a landowner over whose
land polluting matter flowed from another's without any fault of his
would then be guilty of an offence.
[VISCOUNT DILHORNE. That would be an entirely different offence
from that created by the Act of 1951.]
Bridge J. said [1972] 1 Q.B. 127, 137, that if Parliament had wanted
to create an offence which would be absolute unless a third party
were responsible it could have said so very easily indeed. The words
used might have to be elaborated to refer to " operations on land," but
it could be done. The appellants here did not " cause" the pollution.
Putting it in two limbs, they did not cause it, and, if they did cause it, they
did not do so knowingly. Switching on the plant does not cause an
overflow as the system is designed. It may be " a " cause if the pumps
do not work, but it is not " the " cause. The appellants would not have
been liable even if the system had not worked properly when it was first
switched on because their expert was inexpert. It was never suggested
by the respondent or in the Divisional Court that the appellants would
not have had a defence if a third party had intervened. It is for the jury,
as a matter of common sense, to say what is 'the true cause, or the immediate cause: see Winfteld on Tort, 6th ed. (1954), p. 98, and per
Denning L.J. in Cork v. Kirby Maclean Ltd. [1952] 2 All E.R. 402, 406.
On causation, the appellant really in the end comes back to the judgment
of Bridge J. [1972] 1 Q.B. 127, 136H.
In Moses v. Midland Railway Co., 113 L.T. 451, Avory J. said in
terms that section 5 of the Salmon Fishery Act 1861 imposed an absolute
prohibition, but he went on to find that an escape of creosote without
knowledge did not lead to an offence: that was inconsistent. There, the
company knowingly brought close to the river a dangerous substance which
was bound to cause pollution if anything went wrong. On analysis, the
case is perhaps not very good, if some, support for the passage in Halsbury's
Laws of England, 3rd ed., vol. 39, p. 741. [Reference was made to
Kirkheaton District Local Board v. Ainley, Sons & Co. [1892] 2 Q.B.
274, per Bowen L.J., at p. 283.] The appellants did not, by switching on
their plant by the river, cause pollution because they had taken precautions.
What happened occurred because of some intervening act.
In Impress {Worcester) Ltd. v. Rees [1971] 2 All E.R. 357 there were
ample grounds for finding negligence, but there was said to have been
a new act which could not be said to have been the fault of the appellants.
The same applies in the present case. The appellants' answer to the
question: " won't you cause pollution by siting your premises next to the
river ? " is much stronger than the answer was in Impress's case, where
there was a hole in the wall and it was to be expected that someone would
turn on the tap. The same applies to Moses v. Midland Railway Co.,
113 L.T. 451, though that case is less strong.
The appellants' principal argument is that, if what they did was " a "
cause of the pollution, then, under the strong authority of the general
principles referred to, there was no negligence because the words of section
830
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
2 (1) of the Act of 1951 are not such that of necessity one can say that
they create an absolute offence. An example of an absolute offence is
section 14 of the Factories Act 1937.
There are a number of other authorities on other statutes with regard
to mens rea which show that wherever " causes " or even " permits " is
mentioned in a statute the courts have insisted on knowledge or a command
or some other positive act before an offence can be committed: see Shave
v. Rosner [1954] 2 Q.B. 113; McLeod (or Houston) v. Buchanan, 1940
S.C.(H.L.) 17; [1940] 2 All E.R. 179 and Rushton v. Martin [1952]
W.N. 258. Those three cases are not only on causation but also put the
emphasis on knowledge and a positive act. See also Hearne v. Gorton
(1859) 2 E. & E. 66, 75, where the words in question were " send or cause
to be sent," but it was nevertheless held that guilty knowledge was required.
A vast number of such decisions on other statutes can be quoted.
[Reference was made to O'Sullivan v. Truth and Sportsman Ltd. (1957)
96 C.L.R. 220.]
To summarise, the first question is to ask whether the appellants caused
the pollution. The cause—'the effective cause—was the stopping of the
pumps. That was due to something of which the appellants had no knowledge and in respect of which they were not negligent; it is, therefore,
not an act in respect of which they should be held criminally responsible,
If that is right, the question of mens rea does not arise at all. The approach
of Lord Parker C.J. and Widgery L.J. in the Divisional Court was to
answer that question against the appellants and to conclude that that was
the end of the matter but that, if that were wrong, and if there was not
a sufficient novus actus interveniens to be the effective cause and the question
arose what was the cause, it was the switching on of the plant on that
day and/or the siting of the plant originally close to the river.
As to the first of those questions, the question must arise whether these
were acts done with sufficient criminal intent—mens rea—to constitute
an offence. The mere putting of the plant close to the river cannot on any
reasonable approach be called the cause of the pollution, because it does
not follow from it that there will be pollution. If, contrary to the appellants'
submission, the switching on of their plant caused the pollution and if
that was a sufficient cause it is still necessary to ask what mens rea went
with that act or those acts. That question was not directly answered by
Lord Parker C.J. or Widgery L.J., save that perhaps the inference from
their judgments is that they said that there was no need for anything more
than the act of switching on unless it could be shown that there was a
subsequent intervention of a third party. They declined to answer the
question whether mens rea was an ingredient of the offence. The appellants had no criminal intent whatever in switching on the plant. Lord
Parker C.J. and Widgery L.J. stop short of a necessary ingredient of the
commission of a criminal offence.
Iain Glidewell Q.C. and D. G. Nowell for the respondent. There are
two questions of fact: (1) Whether or not the justices in their finding,
which the respondent agrees is capable of two interpretations, may be said
to have intended or possibly covered a finding of negligence. It cannot be
said that the justices found every fact which they have stated; their statement is merely a recital of the evidence. The respondent does not resile
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from the position that he does not propose to argue that they made a finding
of negligence. (2) The question has been raised whether the blockage may
have been caused by the act of a trespasser. The matter proceeded in the
Divisional Court entirely on the basis that that was not so, and there is
no direct finding of the justices to that effect and no shred of evidence to
support the suggestion. There was evidence of brambles and other shrubs
growing by the tanks from which leaves and other material could have
dropped into them. Even if it be accepted that the justices found that the
inspection carried out by an employee of the appellants on the preceding
Saturday or Sunday was a perfectly proper and effective inspection, since
both pumps were found blocked and one, a standby pump, only operated
when there was cause to think that the other was not operating, that would
merely lead to the conclusion that the brambles, etc., had got into the tank
quite a short time before the occurrence of the blockage. The respondent
therefore addresses the House on the basis that the justices have found that
there was no lack of reasonable care on the part of the appellants but have
applied a higher standard as indicated by section 2 (1): that the obligation
of the defendants was to take all the steps which it was in their power to
take. If they failed so to do, and there was a discharge into the river, then
they caused the discharge and were criminally liable. That is the nub of
the respondent's submission. To paraphrase section 2 (1) (a), if a factory
owner does an act or creates a set of circumstances which result in the discharge of polluting matter into the river without any intervening act over
which he has no control, then he causes that discharge. Under the head of
" intervening act over which he has no control " the respondent refers particularly to the human intervention of a trespasser or other third party, but he
conceded in the Divisional Court, and will do so here if necessary, that
the phrase is also apt to cover an act of God if that means a circumstance
which no human ingenuity could have foretold, e.g. a pump struck by
lightning. An act of God does not mean something which was not reasonably foreseeable; it means something which no human mind would foresee
as being a possibility in the relevant situation. In the present case, however,
one is primarily concerned with an act of a third party.
Impress (Worcester) Ltd. V. Rees [1971] 2 All E.R. 357 was rightly
decided because it was held by the Divisional Court that there had been
an act of a third party over whom the appellants had had no control.
If, of course, having discovered the discharge, the appellants had then
taken no or no sufficient steps to deal with it, then they would have been
'' knowingly permitting " it. As Widgery L.J. said in the present case
[1972] 1 Q.B. 127, 136, that is an illustration of the necessity of the
alternative offence of knowingly permitting.
The appellants in the present case caused this discharge by a series
of acts. First, the installation of their plant and equipment in such a
way as to carry the polluting matter down to tanks beside the river from
whence it could only overflow into the river unless it was pumped away.
Secondly, the carrying on of a manufacturing process which produced
polluting matter and carried it into the tanks. Thirdly, the failure of the
pumps, which normally should have taken away the polluting matter, to
operate—a factor which was entirely within their control. One way of
putting the nubs of the appellants' and the respondent's arguments is that
832
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
the appellants say that this third act is to be considered as " the cause "
of the discharge because it was the most immediate cause, whereas the
respondent says that the whole series caused it. The justices themselves
in their finding related only to the third.
Sweet v. Parsley [1970] A.C. 132 supports the test put forward: see
per Lord Reid, obiter, at p. 149D. The Act of 1951 is one of a group of
statutes—health legislation—which create what Lord Reid there calls,
quoting Wright J. in Sherras v. De Rutzen [1895] 1 Q.B. 918, 922, " ' not
criminal in any real sense, but . . . acts which in the public interest are
prohibited under a penalty.'" In Sweet v. Parsley the drug offence in
question was a truly criminal offence. See also per Lord Diplock, at
pp. 162D-163, showing that there is no difference between " permit" and
" knowingly permit."
The Act of 1951, and section 2 (1) (a) of it, fall precisely into the
category of " the regulation of a particular activity involving potential
danger to public health" and thus within Lord Diplock's exception
(p. 163E). His qualification that a person is not to be held guilty unless
he has not done something which he could have done is satisfied in the
present case. The appellants could have taken the simple step of installing
a warning system, which they have since actually done. They could have
designed their system so that the polluting matter would never come near
the river at all but be pumped straight back up to the reservoir. Section
2 (1), therefore, falls within Lord Diplock's category and the offence does
not necessarily connote or require knowledge of the discharge or of the
immediate matter leading to it, i.e. the blockage of the pumps. All the
antecedent causes were within the knowledge of the appellants: the creating
of the polluting matter, the carrying of it down to the river; the fact that
it would go into the river unless the pumps worked. It is agreed that
they must at least have known that there was polluting matter in the wash
water, but if they knew that and that there was any possible risk of its
getting into the river, that would be sufficient. If, on the other hand,
their plant were a mile away from the river and someone's mining operations caused it to flow out into the river they would not be liable. [Reference
was made to Lim Chin Aik v. The Queen [1963] A.C. 160.] Reynolds
V. G. H. Austin & Sons Ltd. [1951] 2 K.B. 135 (see at p. 149) was followed
in James & Son Ltd. v. Smee [1955] 1 Q.B. 78.
It is perhaps not necessary for the respondent to go so far as to say
that this offence is an absolute one. He would prefer to call it " strict,"
there being an intermediate category of strict liability as opposed to the
extremes of absolute liability and reasonable care. He has conceded that
there is a need for some mental element, which is satisfied on the facts
of this case, and the question which arises thereafter is: what is the extent
of the liability on the appellants? How far must they go to satisfy the
statute? One answer might be to take reasonable care. In this case,
they would not be guilty on that basis. In this class of case, however,
the liability is more stringent: it is akin to that indicated by Bridge J.
in the Divisional Court [1972] 1 Q.B. 127, 137, that in tort based on
Rylands V. Fletcher (1868) L.R. 3 H.L. 330.
One can find parts of the judgments in Moses v. Midland Railway Co.,
113 L.T. 451, especially that: of Avory J., which are apparently contra-
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dictory. In one part of the judgment of Avory J. he appears to be saying
that the duty is absolute but that the absolute duty does not apply if there
is no default on the part of the railway company—if there was nothing
which they could have done to prevent the escape of the creosote. He
is not distinguishing between two degrees of liability, but Lord Reading
C.J. does say, at p. 453, that there was " no neglect or default." That
must mean something more than mere negligence. The defendants must
have failed to do something which they should have done. The court
there was finding that there were no steps which the railway company could
have taken to prevent the leak.
Where the Act has not given the defendant a number of specific " getouts," then there must be the qualification of acts which are not theirs
and over which they have no control. But that is all. If another human
agency is introduced that may well cut the chain of causation, but if there
is none and there is merely the ordinary course of nature—leaves dropping
into the tank in the present case—then it is all caused by the acts of the
defendants: there is no other cause.
As to act of God and Rylands v. Fletcher, L.R. 3 H.L. 330, see
Nichols v. Marsland (1876) 2 Ex.D. 1. If it be the fact that the appellants'
pumps became blocked because plants and leaves had fallen into the tanks,
that would not be held to be an act of God. Nichols v. Marsland is
applicable, but that presupposes the question of what degree of fault is
necessary. It is not permissible to take expense into account because (see
per Lord Diplock in Sweet v. Parsley [1970] A.C. 132, 163) the importance
of keeping polluted matter out of the river is so great.
There is a distinction between causing an event and causing another
person to do an act. The cases on the latter are of no assistance here,
because of the question of human intervention. There must be a possibility
of direction or control by one person over another and therefore inevitably
some knowledge of what he is going to do. That is the reasoning behind
many of the decisions on causing in relation to master and servant: see,
e.g., McLeod {or Houston) V. Buchanan, 1940 S.C.(H.L.) 17; [1940] 2
All E.R. 179, 187, per Lord Wright. At p. 186, however, he is saying that
if a person is himself in breach of the statute, intention need not be shown.
It is only when a third party is introduced that any mental element is introduced into the matter. The position is similar with regard to Lovelace v.
Director of Public Prosecutions [1954] 1 W.L.R. 1468.
The respondent invites the House to say that dicta as to what is necessary
before one can say that one person causes another to do an act are of
no great assistance.
Drake Q.C. in reply. Assuming that the cause of the pollution here is
held, contrary to the appellants' original submission, to have been the
turning on of their system, or having the polluting matter static adjacent
to the river, it is conceded by the respondent that some mental element
is to be required to constitute an offence. What mental element? There
was no evidence of any. If the act relied on as the cause of the pollution
is the turning on of the system, there can have been no guilty mind attached
to that, for it had never caused pollution before. The system could be
turned on without its being foreseen that pollution would result. Further,
if the mere presence of the polluting matter close to the river were held
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to be the cause of the pollution, then both Impress (Worcester) Ltd. V.
Rees [1971] 2 All E.R. 357 and Moses v. Midland Railway Co., 113 L.T. A
451 would necessarily have had ingredients of this offence in them.
Once the need for some mental element is adopted, the appellants
adopt what is said in Winfield on Tort, 8th ed. (1967), p. 430, with regard
to Nichols v. Marsland, 2 Ex.D. 1: " an extraordinary act of nature which
she could not reasonably anticipate. Note that it was ' reasonably anticipate,' not ' possibly anticipate.'" On the facts, the events here were not g
reasonably foreseeable. [Reference was made to Kirkheaton District Local
Board v. Ainley, Sons & Co. [1892] 2 Q.B. 274.]
One might not be surprised to find an absolute offence committed in
this case, but one must look at the words of the Act, and it does not create
an absolute offence. There is a half-way house provision in the Salmon
Fishery Act 1861: see the proviso to section 5: " . . . if he prove to the
satisfaction of the court. . . ." See also section 2 (3) (b) of the Act of C
1951.
Their Lordships took time for consideration.
May 3. LORD WILBERFORCE. My Lords, the enactment under which
the appellants have been convicted is the Rivers (Prevention of Pollution) JJ
Act 1951. The relevant words are " . . . if he causes or knowingly permits
to enter a stream any poisonous, noxious or polluting matter;. . ." [section
2(1) (a)].
The subsection evidently contemplates two things—causing, which must
involve some active operation or chain of operations involving as the result
the pollution of the stream; knowingly permitting, which involves a failure
to prevent the pollution, which failure, however, must be accompanied by E
knowledge. I see no reason either for reading back the word " knowingly "
into the first limb, or for reading the first limb as, by deliberate contrast,
hitting something which is unaccompanied by knowledge. The first limb
involves causing and this is what has to be interpreted.
In my opinion, " causing " here must be given a common sense meaning and I deprecate the introduction of refinements, such as causa causans, p
effective cause or novus actus. There may be difficulties where acts of
third persons or natural forces are concerned but I find the present case
comparatively simple. The appellants abstract water, pass it through their
works where it becomes polluted, conduct it to a settling tank communicating directly with the stream, into which the polluted water will inevitably
overflow if the level rises over the overflow point. They plan, however,
to recycle the water by pumping it back from the settling tank into their G
works: if the pumps work properly this will happen and the level in the
tank will remain below the overflow point. It did not happen on the
relevant occasion due to some failure in the pumps.
In my opinion, this is a clear case of causing the polluted water to enter
the stream. The whole complex operation which might lead to this result
was an operation deliberately conducted by the appellants and I fail to see *j
how a defect in one stage of it, even if we must assume that this happened
without their negligence, can enable them to say they did not cause the
pollution. In my opinion, complication of this case by infusion of the
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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.
There are two previous decisions which call for brief comment. The
first is Moses v. Midland Railway Co. (19,15) 113 L.T. 451 which was
decided upon similar terminology in section 5 of the Salmon Fishery Act
1861. The cause of the escape of the polluting creosote was a defective
tap in the tank wagon which did not belong to the railway company but
to a private owner. The conclusion that the railway company had not
caused it to flow was, I should have thought, inevitable. The second is
Impress (Worcester) Ltd. V. Rees [1971] 2 All E.R. 357. The appellant
had placed a fuel oil tank near, though not adjacent, to the river Severn.
The oil escaped through a valve which was not kept locked. The
Divisional Court found that it was an inevitable "conclusion of fact that
some unauthorised person had opened the valve for purposes unconnected with the appellant's business. They held that the opening of the
valve was of so powerful a nature that the conduct of the appellant was
not a cause of the flow of oil. I do not desire to question this conclusion, but it should not be regarded as a decision that in every case
the act of a third person necessarily interrupts the chain of causation
initiated by the person who owns or operates the installation or plant
from which the flow took place. The answer to such questions is one
of degree and depends upon a proper attribution of responsibility for the
flow of the polluting matter.
The actual question submitted to this House under section 1 (2) of
the Administration of Justice Act 1960 is:
"Whether the offence of causing polluting matter to enter a stream
contrary to section 2 of the Rivers (Prevention of Pollution) Act 1951
can be committed by a person who has no knowledge of the fact that
polluting matter is entering the stream and has not been negligent in
any relevant respect."
The answer to this, I suggest, should be yes, it being understood that the
test is whether the person concerned caused or knowingly permitted the
poisonous, noxious or polluting matter to enter the stream. As, in my
opinion, the appellants did so cause, I would dismiss the appeal.
G
VISCOUNT DILHORNE. My Lords, the appellants, Alphacell Ltd., were
convicted by the magistrates at Radcliffe, Lancashire, on an information
that they had caused polluting matter to enter the river Irwell contrary to
section 2 (1) of the Rivers (Prevention of Pollution) Act 1951.
At their Mount Sion works, which are on the bank of the river, the
appellants treated manilla fibres as part of the process of manufacturing
JJ paper. The fibres had to be boiled and the water in which they were boiled
became seriously polluted. It was drained into tanks from which it was
removed by road tankers. There was also a washing process and the water
used in the washing process was drained into two settling tanks situated on
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the edge of the river. One settling tank was higher than the other and the
overflow from the higher tank went into the lower. In a shed above the
lower tank there were two pumps with pipes extending downwards
into the liquid in the lower tank, through which the water was sucked and
pumped back into a reservoir from which it could be taken and, after
filtration, used again.
If the pumps worked properly, there should have been no overflow from
the lower tank, but if that tank did overflow, the liquidflowingfrom it went
straight into a channel, provided for the purpose, which led straight into the
river. So if the pumps for some reason failed to operate properly, the
system instituted by the appellants made provision for any overflow to go
straight into the river.
One of the two pumps worked automatically, coming into operation
when the water in the lower tank reached a certain level and switching itself
off when the level dropped three feet three inches below the level at which
it would overflow into the river. The other pump was manually operated.
Evidence was given by a consultant of the paper trade, a Mr. Evans,
who had been concerned with the planning of the circulation of the water.
He said that one pump was sufficient to keep the liquid from overflowing if
nothing went wrong, and that the second pump was there in case anything
went wrong with the
first.
At 4.30 p.m. on Tuesday, November 25, 1969, an assistant inspector
employed by the Mersey and Weaver River Authority saw that liquid was
overflowing from the lower tank into the river at the rate, he estimated, of
250 gallons an hour. Both pumps were then working. He took samples,
analysis of which showed that the liquid being discharged had a biochemical oxygen demand of 160 milligrammes per litre. The river authority only permitted the discharge of an effluent with a biological oxygen
demand not exceeding 20 milligrammes per litre.
Each of the pipes which carried the water to the pumps was fitted with a
rose to prevent foreign matter being sucked into the pump. The holes in
each rose were three quarters of an inch in diameter.
Mr. Atkinson, a foreman employed by the appellants, testified that on
November 25 he had inspected the tanks at 8.15 a.m. and that one pump
was operating then. He inspected the tanks again at 11.15 a.m. and saw
that the level in the lower tank was rising so he switched on the second
pump. He made another inspection at 1.15 p.m. and did not notice any
difference in the level. He came back again at 3.45 p.m. and the level in
the tank was the same despite the fact that both pumps had been operating
since 11.15 a.m.
If Mr. Atkinson knew that if nothing was wrong one pump was sufficient
to cope with the flow and to prevent an overflow, he surely should have
suspected that something was seriously wrong when he found that both
pumps operating for several hours had not lowered the level of the water.
A fitter employed by the appellants, a Mr. Courtney, stated that he had
inspected and emptied the roses at the end of the pipes every weekend and
that both pumps had been inspected by him during the weekend before
November 25. He said that he had then inspected the impellers to the
pumps and had got hisfingersin the vents.
After the samples were taken the pumps were stopped and dismantled.
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It was then found that brambles, fems and long leaves were wrapped around
each impeller and that the vents of both pipes were blocked. Mr. Courtney
said that he had installed the pumps and had been employed there ever
since and that he had never before found such things in the pumps.
If it be the case that the pumps were properly inspected during the weekend and were then in proper order, the brambles and leaves must have got
into the impellers on the Monday and Tuesday and, if the roses at the end
of each pipe were in place, have been sucked through the three-quarterinch holes in the roses. It sounds improbable that this should have
happened with both pumps in so short a time to such a degree that both
pumps were blocked but one does not know, for the case stated does not
reveal, what conclusion, if any, the magistrates came to about this.
The case stated is unfortunately in an unsatisfactory form. In paragraph 2 the magistrates said that they found the following facts. One
would expect that to be followed by a statement of the facts found, that is
to say, the conclusions on questions of fact to which the justices had come
after hearing the evidence. But paragraph 3 of the case merely sets out
the evidence the magistrates had heard and not their conclusions thereon.
Merely to set out the evidence is no substitute for findings of fact.
Paragraph 3 records that one witness said that the appellants had taken
all reasonable steps to make sure that water did not escape into the river.
Did the magistrates accept this evidence and find as a fact that all reasonable steps had been taken or did they not do so? The case stated leaves
that uncertain and, were it not for the fact that it is possible to reach a
conclusion in this appeal without knowing whether that had or had not
been found, I would have been in favour of the case being sent back to
the magistrates to be properly stated.
The respondent, so the case states, contended that the appellants had
caused polluting matter to enter the river and that they
" had not done everything in their power to ensure that the machinery
which should ensure that the tanks should not allow any overflow into
the river had not worked efficiently" (sic).
F Presumably what was meant was that they had not done everything to
ensure that it had not worked inefficiently.
The justices in the paragraph numbered 7 in the case (in fact paragraph
8) said that they were
" of the opinion that the appellants had caused the polluting matter
to enter the river by their failure to ensure that the apparatus was
Q
maintained in a satisfactory condition to do the job for which it was
provided."
One does not know whether they were of the opinion that that failure was
due to negligence on the part of the appellants or their servants or
whether it was their view that the appellants had caused the overflow
without negligence as they had installed a system which was bound to
JJ lead to an overflow if the pumps for one reason or another proved
inadequate for their task.
Mr. Glidewell for the respondent did not seek in this House to contend
that the justices' conclusion involved a finding of negligence and to support
A.C. 1972—31
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the conviction on that ground. On the evidence given it is apparent that
the justices might well have concluded that there was negligence in not
appreciating by 3.45 p.m. that the pumps were not working properly, and,
in view of the improbability that sufficient debris to block the impellers and
the vents of both pumps had been sucked in in the course of the Monday
and Tuesday, that there had been negligence in the inspection at the
weekend.
In view of the attitude taken by the respondent, though it may be that
the justices were in fact of the opinion that there had been negligence, one
must treat this case as one in which there was no finding of negligence on
the part of the appellants.
In the Divisional Court, Lord Parker C.J. and Widgery L.J. were in
favour of dismissing the appeal. They found it unnecessary to consider
whether the offence charged was an absolute offence. They were satisfied
that the actions of the appellants were a cause of the pollution and that
in their opinion sufficed. Bridge J., dissenting, held that there could be no
criminal liability for causing polluting matter to enter a stream unless
there was actual knowledge on the part of the alleged offender or at least
the means of knowledge that his act might be expected to lead to pollution.
In this House Mr. Drake for the appellants again contended that the
appellants had not caused the pollution; that the section did not create an
absolute offence and that the appellants could not be convicted in the
absence of knowledge or negligence on their part. He also contended that
in a section which, like section 2 (1), creates two offences, the fact that
knowledge is required for one leads to the presumption that it is also
required for the other, in other words, that section 2 (1) (a) should be read
as if it said "if he knowingly causes or knowingly permits." He also relied
on the well known principle that, if the wording of a penal statute is
capable of two interpretations, that most favourable to the accused should
be taken as the correct interpretation.
The first question I propose to consider is, leaving the question of mens
rea on one side, whether on the evidence the act or acts of the appellants
caused the pollution. Its immediate cause was the blocking of the
impellers and vents.
The presence of the polluting liquid on the bank of the river, and, it
would appear, within a foot or so of the river, was due to the acts of the
appellants. The provision of the settling tanks with an overflow channel
from the lower tank leading directly to the river was directly due to their
acts. When the works were operating, there was, under the system they
had instituted, bound to be an overflow into the river unless the pumps
provided were of sufficient capacity and working sufficiently to prevent that
happening.
If they had not installed any pumps or only pumps of insufficient
capacity and an overflow into the river had followed from the operation of
the works, I do not think it could be suggested that their acts had not
caused the overflow and consequent pollution. Does it make any difference
if they had installed pumps of sufficient capacity and for some reason the
pumps had broken down or were only able to pump a fraction of what
they should have? I think not. It was the operation of the works which
led to theflowof liquid to the tanks. It was that operation which, with the
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system they had installed, led to the liquid getting into the river. The roses
at the end of the intake pipes must have been fitted because it was realised
that there was a risk that without them debris would be sucked into and
block the pumps. The fact that despite them debris was sucked in and
prevented the pumps from working properly shows that that safeguard was
insufficient and the result was the same as that which would have followed
from the operation of the works if pumps of insufficient capacity had
originally been installed.
In these circumstances I see no escape from the conclusion that it was
the acts of the appellants that caused the pollution. Without their acts
there would not have been this pollution. It was their operation of their
works that led to the liquid getting into the tanks and their failure to ensure
that the pumps were working properly that led to the liquid getting into the
river. I therefore think that the justices' conclusion on the facts was right.
Then it is said that, even if that was so, there should not have been a
conviction for the offence charged was not an absolute offence. As my
noble and learned friend, Lord Diplock, said in Sweet v. Parsley [1970]
A.C. 132, 162:
" The expression ' absolute offence' . . . is an imprecise phrase
currently used to describe an act for which the doer is subject to
criminal sanctions even though when he did it he had no mens rea,
but mens rea itself also lacks precision . . ."
In this case it was argued that it was an essential ingredient of the
offence that the appellants should—the case being dealt with as if there was
no negligence—have intended the entry of the polluting matter into the
river, that is to say, that they should have intended the commission of the
offence. I cannot think that that was the intention of Parliament for it
would mean that a burden of proof would rest on the prosecution that
could seldom be discharged. Only if the accused had been seen tipping the
polluting material into a stream or turning on a tap allowing a polluting
liquid to flow into a stream or doing something of a similar character could
the burden be discharged. Parliament cannot have intended the offence
to be of so limited a character. Ordinarily all that a river authority can
establish is that a discharge has come into a stream from a particular source
and that it is of a polluting character. But the Act does not say that proof
of that will suffice. If that were so, the Act would indeed create an absolute offence. It has also to be proved that the accused caused or knowingly
permitted the pollution.
This Act is, in my opinion, one of those Acts to which my noble and
learned friends, Lord Reid and Lord Diplock, referred in Sweet v. Parsley
[1970] A.C. 132, 149, 163 which, to apply the words of Wright J. in
Sherras v. De Rutzen [1895] 1 Q.B. 918, 922, deals with acts which "are
not criminal in any real sense, but are acts which in the public interest are
prohibited under a penalty."
What, then, is meant by the word " caused " in the subsection? If a
man, intending to secure a particular result, does an act which brings that
about, he causes that result. If he deliberately and intentionally does
certain acts of which the natural consequence is that certain results ensue,
may he not also be said to have caused those results even though they may
840
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not have been intended by him? I think he can, just as he can be said to
A
cause the result if he is negligent, without intending that result.
I find support for my view in the observations of Bowen LJ. in Kirkheaton District Local Board v. Ainley, Sons & Co. [1892] 2 Q.B. 274.
He said, at p. 283:
" It appears to me that any person causes the flow of sewage into a
stream . . . . who intentionally does that which is calculated according
to the ordinary course of things and the laws of nature to produce B
such flow."
We have not here to consider what the position would be if pollution
were caused by an inadvertent and unintentional act without negligence.
In such case it might be said that the doer of the act had not caused the
pollution although the act had caused it. Here the acts done by the appellants were intentional. They were acts calculated to lead to the river being C
polluted if the acts done by the appellants, the installation and operation of
the pumps, were ineffective to prevent it. Where a person intentionally
does certain things which produce a certain result, then it can truly be
said that he has caused that result, and here in my opinion the acts done
intentionally by the appellants caused the pollution.
I now turn to the contention that the subsection should be read as if the
word " knowingly " appeared before " causes." Whether the inclusion of ™
that word before " permits" makes any difference to the meaning of
" permits" is, I think, open to doubt, for, as Lord Goddard CJ. said in
Lomas v. Peek [1947] 2 All E.R. 574, 575:
" If a man permits a thing to be done, it means that he gives permission for it to be done, and if a man gives permission for a thing
to be done, he knows what is to be done or is being done, . . . "
E
(See also per Lord Diplock in Sweet V. Parsley [1970] A.C. 132, 162.)
If the insertion of " knowingly " before " causes " meant only that the
acts which produced the result must be intentional, then that insertion would
not, in my view, add anything to the meaning to be given to the subsection.
If, on the other hand, it meant that the accused must know what the end
result would be, then it imports the requirement of a guilty mind accom- F
panying the acts.
In this connection reliance was placed on Derbyshire v. Houliston
[1897] 1 Q.B. 772. That was a decision on a very different statute and I do
not think that it constitutes any authority for the proposition that in this
Act section 2 (1) (a) must be read as if the word " knowingly " appeared
before " causes." I therefore reject this contention.
In support of the contention that the offence in question is an absolute "
one, the appellants relied on the last part of section 2 (1) which provides
that a local authority shall be deemed to cause or knowingly permit pollution which passes into' a stream from a sewer or sewage disposal works of
theirs where the local authority were bound to receive the polluting matter
into the sewer or sewage disposal unit or had consented to do so. This
was obviously intended to deal with a special case and to prevent a local JJ
authority from being able to contend that in such circumstances they had
not caused the pollution. I do not consider that it throws any light on the
meaning to be given to section 2 (1) (a).
841
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Viscount Dilhorne
The function of the courts is to interpret an Act" according to the intent
of them that made it ": Coke, 4 Institutes (1817), p. 330. If the language
of a penal statute is capable of two interpretations, then that most favourable to the subject is to be applied. Having regard to the nature of the
Rivers (Prevention of Pollution) Act 1951, the mischief with which it was
intended to deal and the fact that it comes within the category of Acts to
which my noble and learned friends, Lord Reid and Lord Diplock, referred
B in Sweet v. Parsley [1970] A.C. 132 I do not think that the subsection
is capable of two interpretations or that it was intended to be interpreted
or should be interpreted as making the causing of pollution only an offence
if the accused intended to pollute.
For these reasons I would dismiss the appeal with costs.
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LORD PEARSON. My Lords, the appellants have their Mount Sion
Works at Radcliffe beside the river Irwell in Lancashire. Water is drawn
from the river along a goit and is taken into the works and used in processing manilla fibres for use in papermaking. The first stage of the processing produces a very strong effluent which is removed by tankers and
disposed of elsewhere: no question arises with regard to that effluent. At
the second stage of the processing the fibres are washed, and this leaves
polluted washing water, which is taken down to two settling tanks on the
banks of the river. After some purification by settling, this water is recirculated and used again in the processing. There are two pumps which
draw water out of the settling tanks; one of these operates automatically in
the sense that it switches itself on whenever the water in one of the settling
tanks has risen to a certain level; the other is a standby pump which can be
switched on manually when the automatic pump is not keeping down the
level of the water. At the bottom of the intake pipe of each pump
there is a rose, similar to the rose in a watering can, with holes of
three quarters of an inch diameter, intended to keep out foreign matter
while admitting a sufficient inflow of water. As the settling tanks are beside
the river, it must follow that, if the pumps fail to keep down the level of
the water and the rising water overflows, the overflow must be into the
river, and it is polluted water.
On November 25, 1969, the processing plant had been in use for about
a year, and it was being operated on that day. The foreman inspected
the tanks at 8.15 a.m., and found the automatic pump working and everything normal. When he inspected the tanks again at 11.30 a.m., he found
that the water level had risen and he switched on the standby pump. At
1.15 p.m., and again at 3.45 p.m., he found the water level unchanged with
both pumps working. But at 4.30 p.m., the river authority inspector visited
the tanks and found that there was an overflow of polluted water from them
into the river at a rate which he estimated at 250 gallons per hour. The
inspector took a sample of the polluted water immediately before it entered
the river and on analysis it was found that the biochemical oxygen demand
on this sample was 160 milligrammes per litre whereas, when the river
authority allowed a discharge of effluent, the biochemical oxygen demand
should be no more than 20 milligrammes per litre.
What had happened was that in each of the pumps the impeller had
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become clogged with foreign matter—brambles, bracken or ferns and long
leaves—which had entered the intake pipe through the holes in the rose.
There was evidence, accepted by the magistrates, from the appellants'
fitter to the effect that he had inspected the rose and the impeller and
emptied the rose once a week and had done so in the weekend preceding
November 25, 1969, which was a Tuesday, and that the rose had never
been blocked before or since that date; but on that date he had found
brambles, ferns and long leaves wrapped around the impeller and the vents
blocked; he had never found such things before in the pumps.
There was also expert evidence, accepted by the magistrates, that the
appellants had taken all reasonable steps to make sure water did not
escape into the river. The expert witness did say, however, that an alarm
system would be desirable but there was not one on November 25, 1969.
The appellants' general manager said that as an extra aid to their foreman
an alarm system, a probe actuating a bell, was installed in December 1969,
but that this alarm system was not essential as two pumps were adequate to
keep the effluent out of the river Irwell and one pump was normally more
than adequate. The general manager also said that neither he nor anyone
in authority had knowledge of the discharge of effluent until informed by
the inspector. The foreman gave evidence of his regular inspection of the
tanks. He said that the level of the water in the tanks depended on the
amount of processing going on.
The magistrates said in paragraph 7 of the case stated:
" We were of the opinion that the appellants had caused the polluting
matter to enter the river by their failure to ensure that the apparatus
was maintained in a satisfactory condition to do the job for which it
was provided. We accordingly convicted the appellants."
Counsel have stated that the Divisional Court with the assent of counsel
assumed that the magistrates had not made any finding of negligence.
Although perhaps a different view might have been taken of the evidence, I
think, having regard to the findings of fact, that the assumption has to be
made.
The relevant enactment is section 2 (1) (a) of the Rivers (Prevention of
Pollution) Act 1951, providing that:
" 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;..."
The question is whether the magistrates could properly find that the
appellants caused the polluted water to enter the river Irwell.
It has been contended that the prosecution had to prove mens rea on the
part of the appellants, and consequently that the appellants were wrongly
convicted because, even if they caused the polluted water to enter the river,
they did not do so intentionally or knowingly. In my opinion, this contention fails. First, in the wording of the enactment there is the contrast
between " causes" and " knowingly permits," raising the inference that
knowledge is not a necessary ingredient in the offence of " causing."
Secondly, mens rea is generally not a necessary ingredient in an offence of
this kind, which is in the nature of a public nuisance. In Sherras V. De
Rutzen [1895] 1 Q.B. 918 Wright J. said, at pp. 921-922:
A
JJ
^
j)
p
^
°
JJ
843
A.C.
B
AlphaceU Ltd. v. Woodward (H.L.(E.))
Lord Pearson
" 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: Nichols v. Hall (1873)
L.R. 8 C.P. 322. . . . the principal classes of exceptions may perhaps
be reduced to three. . . . Another class comprehends some, and
perhaps all, public nuisances: Reg. v. Stephens (1866) L.R. 1 Q.B.
702 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 Rex v. Medley (1834) 6 C. & P. 292 and Barnes v. Akroyd
(1872) L.R. 7 Q.B. 474."
In Rex v. Medley, 6 C. & P. 292 there was an indictment against the
Q directors and other officers of a gas company for discharging the refuse of
gas manufacture into the Thames. Denman C.J. in summing up said to
the jury, at p. 299:
" It is said that the directors were ignorant of what had been done.
In my judgment that makes no difference; provided you think that they
gave authority to Leadbeter to conduct the works, they will be answerD
able
"
There is an authority on a similar enactment. In Moses V. Midland
Railway Co., 113 L.T. 451 the railway company were conveying on their
line a private owner's tank wagon containing creosote, and on the journey
the creosote began to leak out from a defective tap and when this was
discovered the train was stopped and the defect was remedied. Some of
the creosote which leaked out found its way into a tributary of a salmon
E
river. The railway company were prosecuted under section 5 of the
Salmon Fishery Act 1861, where the relevant wording was:
"Every person who causes or knowingly permits to flow, or puts
or knowingly permits to be put, into any waters containing salmon, or
into any tributaries thereof, any liquid or solid matter to such an
extent as to cause the waters to poison or kill fish, shall incur the
F
following penalties; . . . "
Lord Reading CJ. dealt only with causation. Avory J. dealt with mens
rea at the beginning of his judgment, where he said, at p. 453 :
" I have had some doubt about this case, because when it was first
read to us I certainly understood it to mean that the creosote which
caused the damage in fact escaped from this tank while the train was
"
pulled up and while the operations were going on for the purpose of
repairing it. If that had been clearly the state of facts I should
have hesitated before agreeing with the view that under these circumstances the railway company were not causing the liquid to flow into
the stream within the meaning of this section, because it appears to
me to be not one of those cases where it is necessary to prove any
JJ
mens rea. It is an absolute prohibition, and the person liable is the
person who in fact causes the liquid to flow; and I do not think it is
necessary to show, in the words of one of the judgments quoted to us,
that the person was intentionally causing the liquid to flow."
844
Lord Pearson
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
I think the judgments of Lord Esher M.R. and Bowen L.J. in Kirkheaton District Local Board V. Ainley, Sons & Co. [1892] 2 Q.B. 274, 281, A
283 tend to show that mens rea was not a necessary ingredient in the
offence of causing sewage to fall or flow into a stream contrary to the
Rivers Pollution Prevention Act 1876. Lord Esher M.R. said, at p. 281:
"The sewage matter starts from their premises by their volition in
such a way that it must go through a sewer, which, by the natural
process of gravitation, will carry it into the stream. Reading the B
words of the Act according to their ordinary meaning, did or did not
the defendants cause the sewage, which they thus sent from their
premises, to flow into the stream? It seems to me that they did.
Unless they had done what they did, it would not have flowed into
the stream. They seem to me to be the causa causans, or, at any
rate, the causa sine qua non."
Q
The view that mens rea is not a necessary ingredient in an offence of
this kind seems to me to be consistent with, and supported by, what was
said in Sweet v. Parsley [1970] A.C. 132 by Lord Pearce at p. 156 and by
Lord Diplock at p. 163.
The appellants' other contention is that they did not cause the polluted
water to flow into the river. I think their main grounds for this contention D
are that they did not intend the polluted water to flow into the river, they
did not know it was happening and (according to the assumption that has
been made) it did not happen by reason of any negligence on their part.
On the general question of causation there is an illuminating passage
in the speech of Lord Shaw of Dunfermline in Leyland Shipping Co. Ltd.
v. Norwich Union Fire Insurance Society Ltd. [1918] A.C. 350. He said,
E
at p. 369:
" To treat proxima causa as the cause which is nearest in time is out
of the question. Causes are spoken of as if they were as distinct from
one another as beads in a row or links in the chain, but—if this metaphysical topic has to be referred to—it is not wholly so. The chain
of causation is a handy expression, but the figure is inadequate.
Causation is not a chain, but a net. At each point influences, forces, F
events, precedent and simultaneous, meet; and the radiation from
each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to
declare which of the causes thus joined at the point of effect was the
proximate and which was the remote cause."
This passage may have been partly inspired by the argument of R. A. G
Wright K.C., at pp. 352-353.
In Yorkshire Dale S.S. Co. Ltd. v. Minister of War Transport; The
Coxwold [1942] A.C. 691 Viscount Simon L.C. said, at p. 698:
" The interpretation to be applied does not involve any metaphysical
or scientific view of causation. Most results are brought about by a
combination of causes, and a search for ' the cause' involves a selec- H
tion of the governing explanation in each case."
Lord Wright said, at p. 706: " This choice of the real or efficient cause from
845
A.C.
A
Alphacell Ltd. v. Woodward (H.L.(E.))
Lord Pearson
out of the whole complex of the facts must be made by applying common
sense standards."
In Cork v. Kirby Maclean Ltd. [1952] 2 All E.R. 402 Denning L.J.
said, at p. 407:
" I t is always a matter of seeing whether the particular event was
sufficiently powerful a factor in bringing about the result as to be
properly regarded by the law as a cause of it: . . . "
When one sets out to select in this case from the " whole complex of
the facts" the " governing explanation " of the overflow of polluted water
into the river there are a number of factors to be taken into account. These
include the absence of intention, the absence of knowledge and the assumed
absence of negligence on the part of the appellants. It would have been
easier to decide that they caused the overflow if they had intended it or
C known of it when it was happening or brought it about by their negligence.
Nevertheless, I think that the magistrates and the majority of the
Divisional Court were right in holding that the overflow was caused by the
activities of the appellants. Those were positive activities and they directly
brought about the overflow. What other cause was there? There was no
intervening act of a trespasser and no act of God. There was not even any
jy unusual weather or freak of nature. Autumn is the season of the year in
which dead leaves, ferns, pieces of bracken and pieces of brambles may be
expected to fall into water and sink below the surface and, if there is a
pump, to be sucked up by it.
In my opinion, the activities of the appellants were the cause of the
overflow of polluted water into the river. It is not necessary for the
purposes of this case to decide whether a conviction should be upheld if
E the activities of a defendant were to be regarded as only a cause of such
an overflow. Subject to reservation of that question I agree with the
judgments of the majority in the Divisional Court.
I would dismiss the appeal.
LORD CROSS OF CHELSEA. My Lords, I have found this a difficult
p case. At one time I was inclined to agree with the dissenting judgment of
Bridge J. [1972] 1 Q.B. 127, 136-138; but in the end I have come to the
conclusion that the appeal should be dismissed.
The appellants in the course of their business cause large quantities of
polluted effluent to flow into a settling tank on the bank of the river Irwell.
The tank would have inevitably overflowed with the result that the effluent
would have entered the river had not the appellants installed two pumps to
G keep the level of the water in the tank low enough to prevent any overflow.
At the base of the pumps there are or were metal " roses " with holes of a
diameter of three quarters of an inch designed to allow water to reach the
pump freely but to prevent any solid matter which might get into the
tank from passing through the rose and coming into contact with the impeller.
U
On Tuesday, November 25, 1969, the pumps failed to prevent the
settling tank from overflowing, the reason for the failure being—as was
subsequently discovered—that a quantity of brambles, leaves and other
vegetable matter had found its way through the holes in the " roses " and
846
Lord Cross
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
Ol IsDClSCil
1
was wound round the impellers. The evidence, which the justices accepted,
was to the effect that the " roses " had been regularly inspected each weekend since they had been installed a year previously, that no vegetable
matter had been in them when the pumps were inspected a few days
before the overflow, and, indeed, that no vegetable matter had ever been
found in the pumps before. How all these brambles and leaves had found
their way through the roses in the course of the two or three days before
November 25 was an unsolved mystery.
These being the facts, did the appellants commit the offence created by
section 2 of the Rivers (Prevention of Pollution) Act 1951 of " causing " the
polluted effluent to enter the river? Bridge J. said [1972] 1 Q.B. 127, 136
—and I agree with him—that the contrast drawn in the section between
" causing" and " knowingly permitting" shows that a man cannot be
guilty of causing polluting matter to enter a stream unless at the least he
does some positive act in the chain of acts and events leading to that result.
I cannot, however, follow him when he goes on to say that it is also
necessary if the man is to be held to have " caused " the result that he
should have known or have had the means of knowledge that his act
might be expected to lead to it. Suppose that the contractor whom the
appellants had employed to install these works on the bank of the Irwell
had provided a defective pump with the result that when the appellants
operated their plant for the first time the tank had overflowed—surely they
could fairly be said to have " caused " the pollution of the river even
though they neither knew nor had any means of knowing that their act in
setting the plant in operation would lead to that result? But, of course,
the appellants can say—and here lies the strength of their case—that the
justices have not found that the pumps, albeit they had such wide holes
in the roses, were unsuitable and that they have accepted the evidence of
their employees as to the frequency and thoroughness of their inspections.
This enables them to advance the argument which was accepted by Bridge J.
[1972] 1 Q.B. 127, 137 that the unexplained presence of this quantity of
vegetable matter wrapped round the impellers should be regarded as a
separate cause of the pollution of the stream which relieves the appellants
from the responsibility for it. " If it had been shown that the brambles had
been put there by a trespasser "—so the argument runs—" the appellants
could not be held to have ' caused ' the overflow. For all that one knows
they may have been put there by a trespasser. What difference does it
make that one cannot say how they came there providing that the appellants have not been shown to be in any way to blame for their presence? "
This argument is plausible—but I think fallacious. The appellants did not
advance any evidence to show that the brambles had been placed there by a
trespasser or that the " inanimate forces "—to use the words of Bridge J.,
at p. 137—which brought them there were in the category of acts of God—
analogous to the destruction of the pumps by lightning or the flooding of
the tank by a storm of altogether unexampled severity and duration, All
that the evidence shows is that despite the false sense of security into which
the appellants had been lulled by their experience over the past twelve
months, vegetable matter was in fact liable to collect quite quickly inside
the roses and that, although it may not be fair to blame them for not
inspecting the roses more often than once a week, if they did not have more
.
B
_
D
p
^
JJ
A.C.
Alphacell Ltd. v. Woodward (H.L.(E.))
847
"3'cfdSS
frequent inspections they were running the risk of "causing" polluting
effluent to enter the river. It was not for the respondent to prove that the
appellants had been negligent. The appellants having started to operate
their plant on that day could only escape being held to have caused
polluted effluent to enter the river if they proved that the overflow of the
tank had been brought about by some other event which could fairly be
regarded as being beyond their ability to foresee or control.
B
I would, therefore, dismiss the appeal.
C
D
"
p
G
JJ
LORD SALMON. My Lords, I agree that this appeal should be dismissed
and I wish to add only a few brief observations of my own. It is undisputed
that the river on the banks of which stands the appellants' Mount Sion Works
was polluted by contaminated effluent which flowed from those works into
the river. The vital question is whether the appellants caused that pollution
within the meaning of section 2 (1) of the Rivers (Prevention of Pollution)
Act 1951. The nature of causation has been discussed by many eminent
philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is
essentially a practical question of fact which can best be answered by
ordinary common sense rather than by abstract metaphysical theory.
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 clearly did not cause the pollution intentionally and we
must assume that they did not do so negligently. Nevertheless, the facts so
fully and clearly stated by my noble and learned friend Viscount Dilhorne to
my mind make it obvious that the appellants in fact caused the pollution.
If they did not cause it, what did? There was no intervening act of a third
party nor was there any act of God to which it could be attributed. The
appellants had been responsible for the design of the plant; everything
within their works was under their control; they had chosen all the equipment. The process which they operated required contaminated effluent
being pumped round their works until it came to rest in an open tank
which they sited on the river bank. If the pumps which they had installed
in this tank failed to operate efficiently the effluent would necessarily
overflow into the river. And that is what occurred. It seems plain to me
that the appellants caused the pollution by the active operation of their
plant. They certainly did not intend to cause pollution but they intended
to do the acts which caused it. What they did was something different in
kind from the passive storing of effluent which could not discharge into the
river save by an act of God or, as in Impress {Worcester) Ltd. v. Rees
L1971] 2 All E.R. 357, by the active intervention of a stranger, the risk of
which could not reasonably have been foreseen.
The appellants relied strongly upon Moses v. Midland Railway Co.,
31 T.L.R. 440. In that case a private owner's tank wagon filled with
creosote formed part of a train being driven by the defendants. At the
848
Lord Salmon
Alphacell Ltd. v. Woodward (H.L.(E.))
[1972]
beginning of the journey the wagon was subjected to careful examination
by the defendants which revealed no defect. There was, however, a latent
defect in one of its taps. Whilst the train was travelling along the banks
of a river this defect caused creosote to leak into the river and polluted it
so that many fish were killed. On a charge under section 5 of the Salmon
Fisheries Act 1861 the justices held that the defendants had not caused
the pollution, and that decision was upheld by the Divisional Court. The
facts were strikingly different from those of the present case. The wagon
was not owned by the defendants; they were in no way responsible for its
design or maintenance; they exercised no control over the defective tap;
and they had no knowledge or means of knowledge of the latent defect
which caused the leak. The decision, which to my mind is not relevant
to this appeal, may well have been correct on its facts although die judgments do not appear to be very satisfactory.
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. Section 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 [1895] I Q.B. 918, per Wright J. at p. 922, referred
to with approval by my noble and learned friends, Lord Reid and Lord
Diplock, in Sweet v. Parsley [1970] A.C. 132, 149, 162. I can see no
valid reason for reading the word " intentionally," " knowingly" or
" negligently " into section 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 a 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 section 2 (1) (a) which encourages riparian factory
A
B
D
E
F
Q
„
(849
A.C.
Alpbacell Ltd. v. Woodward (H.L.(E.))
Lord Salmon
owners not only to take reasonable steps to prevent pollution but to do
A everything possible to ensure that they do not cause it.
I do not consider that the appellants can derive any comfort (as they
seek to do) from the inclusion in section 2 (1) (a) of the words " knowingly
permits" nor from the deeming provision against local authorities in
relation to sewage escaping into a river from sewers or sewage disposal
units [section 2 (1)]. The creation of an offence in relation to permitting
g pollution was probably included in the section so as to deal with
the type of case in which a man knows that contaminated effluent is
escaping over his land into a river and does nothing at all to prevent it.
The inclusion of the word " knowingly " before " permits " is probably
otiose and, if anything, is against the appellants, since it contrasts with
the omission of the word " knowingly " before the word " causes." The
deeming provision was probably included to meet what local authorities
C might otherwise have argued was a special case and cannot, in my opinion,
affect the plain and unambiguous general meaning of the word " causes."
For these reasons I would dismiss the appeal with costs.
Appeal dismissed with costs.
jy
Solicitors: Beardall, Fenton & Co. for Elliott & Buckley, Manchester;
Norton, Rose, Botterell & Roche for R. E. Woodward, Warrington.
M. G.
[HOUSE OF LORDS]
E
DIRECTOR OF PUBLIC PROSECUTIONS .
.
.
APPELLANT
AND
W H Y T E AND A N O T H E R
„
1972
G
Crime—Obscene libel—Obscene article—Pornographic books on
sale in bookshop—Most likely purchasers pornography addicts
—Whether books such as to " deprave and corrupt persons . . .
likely . . . to read " them—Whether articles having effect on
mind only capable of being obscene—Obscene
Publications
Act 1959 (7 & 8 Elii. 2, c. 66), s. 1 (1)*
H
June 20, 22;
July 19
RESPONDENTS
Lord Wilberforce, Lord Pearson, Lord Simon of
Glaisdale, Lord Cross of Chelsea and Lord Salmon
1
Obscene Publications Act.1959, s. 1: " (1) For the purposes of this Act an article
shall be deemed to be obscene if its effect . . . is, if taken as a whole, such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it. (2) In
this Act ' article' means any description of article containing or embodying matter
to be read or looked at or both, . . . (3) For the purposes of this Act a person
publishes an article who—(a) distributes, circulates, sells, lets on hire, gives, or lends
it, or who offers it for sale or for letting on hire;. . . "
S. 2 (1) (as amended by Obscene Publications Act 1964, s. 1 (1)): "Subject as
hereinafter provided, any person who, whether for gain or not, publishes an
obscene article or who has an obscene article for publication for gain (whether gain
to himself or gain to another) shall be liable— . . . "