R v Sellars

 

R v Sellars

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

CRIMINAL; Criminal Evidence, Criminal Law: CONSTITUTIONAL; Other Constitutional

COURT OF CRIMINAL APPEAL

WROTTESLEY, STABLE AND LYNSKEY JJ

22 OCTOBER 1945

Criminal Law – Burden of proof – Rationed goods acquired without surrendering coupons – Discharge of burden of proof if facts of acquisition constitute

supply not prohibited by Order – Consumer Rationing (Consolidation) Order, 1944 (SR & O, 1944, No 800), arts 3, 4.

Emergency Legislation – Rationing – Rationed goods acquired without coupons – Burden of proof on person charged – Consumer Rationing (Consolidation)

Order, 1944 (SR & O, 1944, No 800), arts 3, 4.

S was charged with having acquired rationed goods (viz, children’s clothing) without surrendering the appropriate number of coupons, in contravention of the

Consumer Rationing (Consolidation) Order, 1944. The clothing in question had been stolen during a weekend. According to the statement of S, the clothing

had been offered to her for purchase, but she had had no time for sorting it out and paying for the articles she wanted, when the police arrived. The Consumer

Rationing (Consolidation) Order, 1944, art 4 (repealed and replaced by SR & O, 1945, No 1000) provided that “a person shall not acquire rationed goods from

any person without surrendering the appropriate number of coupons in respect thereof provided that it shall be a defence to a person charged with contravening

this provision to prove that the supply to him of those goods without the surrender of coupons was not prohibited under the provisions of this Order.” The trial

judge, when summing up to the jury, stated that art 4 contained an absolute prohibition of acquiring rationed goods from any person without surrendering the

appropriate number of coupons unless the Order in some other part of it stated that coupons were not necessary, and that S acquired the clothing in accordance

with the terms of the Order. S was convicted of an offence under the Order and bound over for three years. S appealed against conviction:—

Held – (i) The Consumer Rationing (Consolidation) Order, 1944, art 4, had the effect that a person who acquired rationed goods, if charged with an offence

under the Order, must prove that the supply of the goods was not prohibited by the Order. This burden of proof was, however, discharged by the accused if he

established a set of facts which on examination was found not to be prohibited by the provisions of the Order.

(ii) the direction to the jury that they had no choice in the matter was wrong. The jury should have had before them the facts alleged with the necessary

guidance as to what facts would constitute the accused guilty and what facts would make her not guilty.

􀂭 82􀀉

(iii) the jury not having received that assistance, the conviction must be quashed.

Notes

This case deals with the onus of proof when an accused person is charged with acquiring rationed goods without surrendering coupons. It should be compared

with R v Putland, p 85 post. Both cases are a useful guide in cases where an Act or Order places an onus on the defence.

For the Consumer Rationing (Consolidation) Order, 1945, (SR & O, 1945, No 1000), see Butterworth’s Emergency Legislation [38] 1763.

Appeal

Appeal by the accused from a conviction for an offence under the Consumer Rationing (Consolidation) Order, 1944, art 4. The accused was tried by the

Common Serjeant and a jury at the Central Criminal Court. The facts are sufficiently set out in the judgment of the court delivered by Wrottesley J.

V J M Stephenson for the appellant.

Sebag Shaw for the Crown.

22 October 1945. The following judgment was delivered.

WROTTESLEY J [delivering the judgment of the court]. In this case the appellant was convicted at the Central Criminal Court of acquiring rationed goods

without surrendering coupons, and she was bound over for three years. She now appeals against conviction. Her ground is that the Common Serjeant was

wrong in law in holding that acquisition from a private individual for the private use of the acquirer without the surrender of coupons was a breach of the

Consumer Rationing (Consolidation) Order, 1944, Part I, arts 3 and 4.

The clothing in question was stolen during the Whitsun week-end by thieves who broke into a store at 78–81 Goswell Road. On Whit Tuesday the police

visited the flat where Ada Breen, one of the accused persons, lived, and in her room they found a lot of the clothing. It was, I think, women’s clothing of all

kinds. They then went to another flat, No 20, in the same building but on a different floor and saw the appellant and asked her about this property. She said:

“Don’t tell me it is stolen. I have some clothing here for my children, what the girl Breen gave me,” and she produced an overcoat and told them they would

find the rest in the drawers, adding that she had not yet paid for them. A little later she made a statement to the effect that Margaret Breen had offered her the

things that morning, assuring her that they were “straight,” and that she could pick what she wanted for her children. She said she had taken the bundle but

had not had time to make her choice before the police arrived, and she had not paid for them. Counsel for the appellant submitted that the Order did not apply,

and that is the point which has really been argued here to-day.

This order now is no longer in force, having been replaced by another one [Consumer Rationing (Consolidation) Order, 1945 (SR & O, 1945, No 1000)]

It deals with “supply of rationed goods by traders,” and art 1 says:

‘Subject to the following provisions of this Part of this Order, no trader shall supply any rationed goods to any person unless the appropriate number

of coupons has been surrendered to the trader in respect thereof.’

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

“Trader” is defined in the definition article, art 56, as follows:

‘… a person carrying on in the United Kingdom the business of supplying any rationed goods, whether or not he carries out any process in the

manufacture of them, or a business in the course of which he uses rationed goods in the production of goods which are not rationed goods.’

Art 2, and I am only dealing with the more important and relevant sections, deals first of all with the case:

‘(1) Where any rationed goods are sold at a public auction on behalf of a person who is not a trader, the auctioneer shall not permit the supply of

those goods unless the appropriate number of coupons has been surrendered to him.’

There is a similar provision with regard to sale at a bazaar or sale of work. Then art 2(3) is:

‘Where a person has acquired or manufactured rationed goods for the purpose of selling them to other persons, he shall not supply them unless the

appropriate number of coupons has been surrendered to him.’

That covers the case of somebody who buys material, works it up into a dress and sells the dress. Then comes art 4, which is the important one for the

purposes of this case and which is quite general. It says:

􀂭 83􀀉

‘A person shall not acquire rationed goods from any person without surrendering the appropriate number of coupons in respect thereof; provided

that it shall be a defence to a person charged with contravening this provision to prove that the supply to him of those goods without the surrender of

coupons was not prohibited under the provisions of this Order.’

It is clear to us, first of all, that, by virtue of the article, a person who does acquire rationed goods, if charged with an offence against this Order, must, to

be found not guilty, prove that the supply was not prohibited by this Order. The burden of proof is shifted intentionally by the Order on to the person accused,

but we are all agreed that that onus is discharged by proving a set of facts which on examination is found not to be prohibited by any of the provisions of the

Order. It may well be that the appellant cannot do that without establishing that the sale was by a person who is not a trader, but we are not concerned with

that. We are agreed that that is the proper approach to this matter, a proposition which the prosecution contest. We hold the view strongly that the proper

approach to the question is to prove a set of facts and from them to establish, if possible, that that set of facts is not prohibited. It is not necessary to go further

than that.

Two passages in the summing-up of the Common Serjeant to the jury on this matter, are complained of. He said, dealing with this charge, after reading

art 4:

‘There are certain provisions of the Order which say that coupons art not necessary. I need not go into them at any length, but it is really that I may

deal with the point … raised by [counsel for the defence] … when she said that in the circumstances of this case it could not be said that these goods

were “acquired.” Art. 4, as I have pointed out, contains an absolute prohibition of acquiring rationed goods from any person without surrendering the

appropriate number of coupons unless the Order in some other part of it states that coupons are not necessary.’

That is not the effect of art 4, and counsel for the prosecution, quite fairly, told us that the distinction between what the Common Serjeant said at this point in

his summing-up and the real meaning of art 4, is not to be reconciled, and therefore it is clear that in that respect the summing-up did not give the true meaning

of this Order.

The other passage complained of contains these words of the Common Serjeant:

‘Then as regards Mrs. Sellars the same thing applies. Consider her story. If you consider it a reasonable one, and one consistent with innocence,

acquit her of receiving, but I cannot see at the moment any answer to the question of acquiring. In my view she did acquire these goods in accordance

with the terms of that Order and I am bound so to direct you.’

It is clear that there again the Common Serjeant directed the jury that they had no choice in this matter. In truth and in fact in jury should have had before

them the facts alleged with the necessary guidance as to what facts would make, on the one hand, the appellant guilty of a breach of the Order and what would,

on the other hand, make her not guilty. The jury did not receive that assistance, and the conviction must be quashed. The order of probation falls with the

conviction.

Appeal allowed. Conviction quashed.

Solicitors: Registrar of the Court of Criminal Appeal (for the appellants); Director of Public Prosecutions (for the Crown).

R Boswell Esq Barrister.

􀂭 84􀀉

[1946] 1 All ER 85