Rex (Through A.R.P. Commandant, Nakuru) v Fielding (Criminal Appeal No. 270 of 1940 (Case Stated)) [1940] EACA 51 (1 January 1940)

## APPELLATE CRIMINAL

# Before SIR JOSEPH SHERIDAN, C. J., and HAYDEN, J.

# REX, THROUGH A. R. P. COMMANDANT, NAKURU, Appellant $\nu$

### ALFRED FIELDING, Respondent

### Criminal Appeal No. 270 of 1940 (Case Stated)

## Criminal Law—Defence (Lighting Control) Regulations, 1940, Regulations 3 (3) and 7—Liability of manager of an hotel—Mens Rea.

Appeal by way of case stated from decision acquitting the managing director of an hotel in a prosecution for breach of the Defence (Lighting Control) Regulations, 1940, in regard to the hotel. The breach of the regulations was not due to the personal negligence of the managing director, who had no knowledge of the infringement and had been diligent to prevent such infringements.

Held $(7-1-41)$ .—(1) That having regard to the clear purpose and intention of the Defence (Lighting Control) Regulations, 1940, the regulations must be held as a matter of necessary implication to point to the managing director of an hotel as being responsible for any contravention of the regulations in regard to the hotel even though another person, the actual or true offender, be also responsible in law. The duty to ensure compliance is absolute.

(2) In order to prove a case against an occupier of premises under Regulation 3 (3) of the Defence (Lighting Control) Regulations it is not necessary to establish mens rea on the part of the accused.

(3) A person may be held liable criminally under the regulations even though there was no personal neglect, knowledge or lack of due diligence on his part.

Case remitted with direction to convict and pass sentence.

### Brown, Solicitor General, for the Crown.

#### Allan for the Respondent.

JUDGMENT.—This is a case stated by the Acting Resident Magistrate, Nakuru. It refers to a breach of the Defence (Lighting Control) Regulations, 1940. The case is described as Crown through A. R. P. Commandant v. A. Fielding. It was found by the Acting Resident Magistrate that a light showing through one of the lounge doors, which was shut but behind which the curtain had been drawn aside, did not conform with the Regulations. The building is the Stag's Head Hotel, Ltd., Nakuru, of which the accused is the managing director. The following provisions of the regulations are relevant: $-$

Regulation $3(3)$ :

"Upon a total black-out being ordered under the provisions of Regulation 2 of these Regulations the following provisions of these Regulations shall come into force and shall be observed by every person in the area to which the order applies: $- \ldots$ .

(3) In factories, shops, hotels, institutions, dwelling-houses, buildings and premises of all descriptions inside lights shall be so shaded or reduced or the windows, skylights and glass doors so screened by shutters or dark blinds or curtains, etc., that no more than a dull subdued light is visible from any direction outside the premises."

#### and Regulation 7:

"Any person who fails to comply with the provisions of these Regulations .... shall be guilty of an offence .... and shall, on conviction by any magistrate and notwithstanding the provisions of the Criminal Procedure Code, be liable to a fine of £500 or to imprisonment for a term not exceeding two years or to both such fine and such imprisonment."

The following questions have been submitted for the opinion of the Court: -

- 1. (Assuming that the Defence (Lighting Control) Regulations, 1940, have the force of a Statute), is there any express language or necessary inference therein to make a person liable criminally where there is absence of personal neglect and knowledge and no lack of due diligence? - 2. There is nothing in the Defence (Lighting Control) Regulations, 1940, corresponding with S. 93 of the Defence Regulations, 1939, which were made under the same powers, viz. the Emergency Powers (Colonial Defence) Order in Council, 1939. Is it not proper to infer that this omission from the first-named Regulations— - (a) leaves open the defence available under section 93 (1) but without the shifting of the burden of proof; and - (b) leaves open the defences normally available to an employer of labour, $(b)$ of which section 93 (2) deprives him? - 3. Is it necessary in order to prove a case against an occupier of premises under Regulation 3 (3) of the Defence (Lighting Control) Regulations, 1940, to establish mens rea on the part of the accused?

Our answers to those questions respectively are: 1. Yes. 2 (a) and (b), No. 3. No. The Regulation-making Authority must be deemed to have intended that compliance with the Regulations was an absolute duty and in saying this we refer to the language of Atkin, J. (now Lord Atkin) in the case of *Mousell Brothers* $v$ . London and North Western Railway (1917) 2 K. B. 836 at 845:-

"I think that the authorities cited by My Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed."

The primary object of the Regulations is nothing less than maintaining the security of the country from danger from an enemy across our border and ensuring as far as possible that he will be embarrassed if not completely foiled in any raiding expedition he may attempt from the air. The words used in relation to hotels are in our opinion of such a nature as to indicate that the person in charge of the business, in this case the managing director, is responsible for the carrying out of the Regulations. Who else could reasonably be held responsible for this where the offence has been committed and it could not be ascertained who was primarily responsible for the act or omission? Can it not be said, to use the language of Lord Russell of Killowen, C. J. in *Coppen v. Moore* (1898) 2 Q. B. 306: "When the scope and object of the Act are borne in mind, any other conclusion would to a large extent render the Act ineffective for its avowed purposes". Commenting on this message Viscount Reading, C. J. in Mousell Brothers v. London and North Western Railway (supra) said: "So that where the language of an Act is not so plain as to leave no room for doubt, the Court may bear in mind the avowed purpose of the Act and consider whether a particular construction will render the Act effective or ineffective for that purpose". The primary object of the Regulations under consideration may not be avowed but it is none the less clear.

The grave purpose of this war legislation must in our opinion be held as a matter of necessary inference to point to the managing director of an hotel being responsible for the contravention of the Regulations even though another person, the actual or true offender, be also responsible in law. The magistrate was of the opinion that because in other Defence Regulations passed on the 1st September, 1939, an officer of a Corporate Body was given a defence if he could prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence (Regulation 93 (1)), a similar defence should be open to him in this case. Our opinion is quite the contrary. We consider that the absence of such a provision from the Regulations under review points to the Regulation-making Authority having considered that an absolute compliance with the Regulations was so essential that such a defence should not be open to an accused person. It is interesting to note, and we are indebted to the learned Solicitor General for the information, that in England under the Lighting Regulations a successful defence may be made out where no such defence would be available in this country. This is by virtue of a proviso to the relevant order which is: "In any proceedings which by virtue of this paragraph are taken against any person in respect of a contravention of or non-compliance with, such an order on the part of another person it shall be a defence for the defendant to prove that the contravention occurred without his knowledge and that he exercised all due diligence to secure compliance with the order".

The case is remitted to the magistrate to record a conviction and pass sentence. and we do not hesitate to observe that the circumstances of the case do not in our view call for a severe penalty.