The Law of Heavy Motorcars—II.
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" Causing or Permitting."
By a Barrister-at-Law.
It is probably no exaggeration to say that during the last few years users of heavy motorcars have paid many thousands of pounds in fines for "causing or permitting." A brake gives out on a long journey, the driver is held up by the police : ten days later the summons against the driver is dismissed on payment of 5s. 6d. costs, while the employer is fined 25 plus due advocate's fee for "unlawfully permitting." Or again, a haulage contractor accepts an. order to carry four tons of goods. A heavy motor which is entitled to have a total axle-weight of 12 tons is sent to do the job. The goods are loaded by a thirlparty. Later the driver is pulled up by the police, and it is found that the registered axle-weight of the rear axle has been exceeded through the load either shifting or being badly distributed, and, although there were several tons of margin on the total axle-weight, the luckless user pays £6 for the alleged offence of " unlawfully permitting " that of which he had absolutely no knowledge, and after he had taken every possible precaution to keep within the provisions of the law.
Wait for Proof by Prosecution Against the Owner.
Now the strange part of the whole affair is that users very rarely defend the cases, or if they do plead "not guilty," they withdraw that plea so soon as some police constable has given evidence that an axle-weight has been exceeded, in the evident belief that the offence has been proved against him. But such is not the case, they are not charged with being the users of a heavy motor whose registered axle-weight has been exceeded ; the charge against them is that of " unlawfully permitting' a heavy motor to be used whose registered axle-weight has been exceeded. The gist of the offence is the "permitting," and not the exceeding of the registered axle-weight. It seems not unlikely that by far the greater number of convictions for "unlawfully permitting" are wrongful, and contrary to the law, and further that if the cases had been defended they would have resulted in dismissals instead of the infliction of heavy fines.
First as regards "causing." This can be dealt with in a few lines. Users are very rarely charged with causing : "unlawfully permitting" is what the police authorities infinitely prefer. The broad dis tinction between causing and permitting, is that "causing" is active, while " permitting" is passive. Obviously, if a user sends his motor out not in all respects in accordance with the regulations," he is guilty of the offence of "causing."
Now as regards' unlawfully permitting." In the first place, what is the meaning of the word "permitting" I The answer which the dictionary I have before me gives is as follows :—" To give leave to" —" To allow to be" or "To be done. ' "To afford means "—" To give opportunity." These various definitions are quite satisfactory to our arguments, and be it remembered that there must be no straining to impart a different meaning to words, other than that which they are commonly understood to bear. As Mr. Justice Stephen said in the case of Mallinson v. Carr (reported in 1905, I Queen's Bench Division p. 52) when• explaining how Acts of Parliament should be interpreted, The true rule is to take the words in their ordinary and natural sense and to construe them accordingly." The Charge Is a Criminal One.
Now comes the question how far is a person criminally responsible for actions done without his knowledge and in circumstances where he had no opportunity of knowing and preventing those actions if he had exercised reasonable care. Further, is he criminally responsible for the unlawful acts of his servants committed in his absence and without his knowledge or consent? First there must be carefully noted the difference which exists between "civil liability and "criminal liability." It is a general maxim of our common law that a master is " civilly liable," but not "criminally liable" for the acts of his servants within the scope of their authority. For instance, if a driver of a motor, through negligence, causes injuries to some other person, both the driver and his employer may be sued for damages resulting from the negligence of the servant. On the other hand, if a driver of a motor, through gross negligence, kills a pedestrian, that driver may be held criminally responsible and convicted of manslaughter, but no criminal proceedings would lie against the employer. A second principle of our Common law is, that a person cannot be guilty of a criminal offence in the absence of mens rea, i.e., a guilty knowledge. Now guilty knowledge, in its legal acceptation of the term, means that a person. knows of the circumstances, or would have known of the circumstances if he had exercised reasonable care to find them out.
"Guilty Knowledge" Must be Proved.
It is, of-course, no excuse to shut the eyes and say "I cannot see."
Mr. Justice Cave in the lea-ding case of Chisholm v. Doulton (reported in the Law Reports, 22 Queen's Bench Division p. 741) made the following statement of the law :—
" It is a general principle of our criminal law that there must be an essential ingredient in a criminal offence, some blameworthy condition of mind. Sometimes it is negligence, sometimes malice, sometimes guilty knowledge, but, as a general rule, there must be something of that kind which is designated by the expression mens rea. Moreover, it is a principle of our criminal law that the condition of mind of the servant is not to be imputed to the master. A master is not criminally responsible for a death caused by his servant's negligence, and still less for an offence depending on the servant's malice ; nor can a master be held liable for the guilt of his servant in receiving goods knowing them to have been stolen. And this principle of the Common law applies also to statutory offences with this difference, that it is. in the power of the legislature, if it so pleases, to enact, and in some cases it has enacted, that a man may be convicted and punished for an offence. although there was no blameworthy condition of mind about him ; but, inasmuch as to do so is contrary to the general principle of the law, it lies on those who assent that the legislature has so enacted to make it out convincingly by the language of the statute ; for we ought not lightly to presume that the legislature intended that A should be punished for the fault of B."
Now, as Mr. Justice Cave said, this principle of men 8 rea applies also to statutory offences with this difference, that it is in the power .of the legislature if it so pleases to enact that a man may be punished for an offence although there was no blameworthy condition of mind about him. But be it remembered that the onus is cast on the prosecutor of showing convincingly that it was the intention of the legislature to enact that the condition of mind of the alleged offender was immaterial, and this intention of the legislature must be clearly shown by the language of the statute.
Absolute or Non-absolute Prohibition.
Let us next consider the question of statutory offences in two classes:—
(1) absolute prohibitive statutes or sections ; (2) non-absolute prohibitive statutes or sections.
As regards (1), these are enactments which permit of no excuse, and where the condition of mind of the alleged offender is immaterial. An example of this class of case is found in Section 117 of the Public Health Act, 1875. The section provides that it is an offence for any person to expose for sale bad meat, intended for human consumption. This is an absolute prohibitive section, and it is no defence for the person charged to say that he had no knowledge of the circumstances and the wrongful acts even committed by his servant. Now as regards (2), in this type of case the principle of Common law known as mews rea applies, i.e., there must be the condition of guilty mind. The Protection of Animals Act, 1911, gives us a good example, where it has been held that an owner "is deemed to have 'permitted' cruelty if he has failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom." Therefore., if an owner is charged with permitting cruelty, it must be shown, in order that he may be found guilty of the offence, that be has failed to exercise reasonable care and supervision.
Offences Against the Heavy Motor Car Order.
I submit that the same principle applies to cases where users are charged with "permitting" offences in connection with the Heavy Motor Car Order, 1904.
The primary point to be considered in differentiating between "absolute prohibitive" sections or statutes and "non-absolute prohibitive" sections or statutes is, that in the former the condition of mind of the accused is immaterial, while in the latter it is the gist of the offence. If a person " permits " certain acts, it follows from the meaning of the word that he must either have known of those acts or would have been able to know of them if he had taken reasonable care to discover them. On this principle, how can a user be held liable for "permitting," say, a motor to be used with defective brakes if the motor has been properly examined before it has left the runningshed and the defects of the brakes haVe only made themselves apparent during the journey?
c40 Authority Not Delegated.
Prosecutors often try to get over this difficulty by stating that if a master delegates his authority to his servant he, the master, is responsible for any illegal acts the servant may commit. In support of this statement, the example where a licensee of a publichouse was convicted for " permitting " drunkenness under circumstances where the licensee had delegated his authority to a barman, and the drunkenness took place in the absence of the licensee and without his knowledge, is quoted. The answer to this contention is simple. As Mr. Justice Cave said, the legislature has in some cases enacted, that a man may be convicted although there is no blameworthy condition of mind. Such cases as, for instance, when a licensee is convicted of " permitting" drunkenness in his absence form the exception to the rule, and are examples of "absolute prohibitive" acts, and when they do exist, as the condition of mind of the defendant is immaterial, and he cannot plead ignorance as a defence, it. follows in many cases that he is criminally responsible for the acts of his servants. But it must be remembered that the prosecution has to make out convincingly by the language of the Statute that it was the intention of the legislature that the principle of mens rea, or guilty mind, should not apply, and that therefore a master is criminally responsible for his servant's acts. I submit that it is impossible to show such an intention in those sections of the Heavy Motor Car Order, 1904, which render " users " liable for " permitting."
An Appeal Pending.
It must be clearly understood that in this article do not pretend that my interpretation of the law is indisputable. What I have attempted to do is to show that there are strong grounds for believing that users are often wrongfully convicted for " permitting," and to put before the readers of THE e051MERCIAL MOTOR arguments to that effect—arguments which have been upheld in various cases on the subject. During the current year, there will in all probability be an appeal on the question. Till that takes nlace, we can only wait and see.