containing 20,000 amphetamine sulphate tablets. The defendant claimed that he sold perfume as a sideline and that he believed both packages, which had been left for him at a cafe, contained perfume. The jury was instructed that the defendant was guilty if he had control of the box which in fact turned out to be full of amphetamines, and that his claim of lack of knowledge was to be considered only in mitigation of sentence. Both the trial judge and the jury expressed the opinion that the defendant knew that the parcel contained the drugs, although this finding was not necessary for conviction. The defendant was convicted and the Court of Appeal affirmed. R. v. Warner, [1967] 3 All E.R. 93 (C.A.).

On appeal to the House of Lords, there were only two points on which the five justices could agree: (1) that as per Lord Parker's dictum in Lockyer, a person does not possess something which is slipped into his control entirely without his knowledge, and (2) that the appeal in Warner should be dismissed. As to the mental element necessary to convict a man of possession, the individual justices took diverse approaches.

Lord Guest felt that the prosecution must show that the accused had knowledge that he possessed the package or bottle which contained the drugs. According to this view, a person shown to be in possession of a package will be deemed to also possess its contents."

Lord Morris expressed the opinion that a person possesses the contents of a container when he is knowingly in control of that container in circumstances in which he had the opportunity, whether availed of or not, to discover the contents.

8

On the other hand, Lord Pearce and Lord Wilberforce both thought that a person could not be said to be in possession of the contents of a package if he was entirely unaware of those contents. These two justices concluded that proof that a person knowingly possessed a package raised a strong inference that he also knew the contents; however, the defendant should be allowed to assert in his defense that he had no knowledge of, or was genuinely mistaken as to, the actual contents or their illicit nature, and received them innocently, and that he had no reasonable opportunity since acquiring the package to acquaint himself with its contents.9

7 [1968] 2 All E. R. at 384-85.

8 Id., at 375.

9 Id., at 388-90, 393-94. Lord Pearce further stated that "the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse." Id., at 388. The introduction of this somewhat metaphysical distinction between "kind” and “qualities" was the subject of criticism by commentators. See, e.g., D. Miers, The Mental Element In Drug Offences, 20 Nor. Ir.L.Q. 370, 380 (1969); A. Owen, Dangerous Drugs-Possession, The New Law Journal, September 28, 1972, at 844, 845. However, it should be noted that Lord Pearce felt the question of whether a difference in qualities amounts to a difference in kind “is a

Finally, Lord Reid took the view that the statute required the prosecution to prove facts from which the jury could infer that the defendant knew that he had a prohibited drug in his possession. 10 Lord Reid also suggested that: "In a case like this Parliament, if consulted, might think it right to transfer the onus of proof so that an accused would have to prove that he neither knew nor had any reason to suspect that he had the prohibited drug in his possession. . . ." 11 Lord Pearce put forth a similar suggestion. 12

With the exception of Lord Guest, the justices expressed the opinion that the direction to the jury given by the trial court had been defective. 13 Nevertheless, Lords Reid, Pearce, and Wilberforce believed that the defendant's story regarding lack of knowledge was so preposterous that no reasonable jury could have acquitted him, and that therefore no injustice had been done. 14

From the foregoing discussion, it is evident that a majority of the court, consisting of Lords Reid, Pearce, and Wilberforce, believed that there was a substantial knowledge requirement for conviction of possession of a dangerous drug. The inference that possession of a package meant possession of its contents could be rebutted by the defendant if he raised substantial doubt that he knew the contents; this could be done either by showing that he had no right to open the package and no reason to suspect its contents to be illicit, or by showing that he was genuinely mistaken as to the contents and had no reasonable opportunity to ascertain what they were. See D. Miers, The Mental Element In Drug Offences, 20 Nor. Ir.L.Q. 370, 389-90 (1969). The majority view in Warner, then, was the prevailing interpretation at the time of the respondent's conviction in 1968.

The cases which were decided after Warner confirm the existence of a substantial knowledge requirement for conviction of possession. In R. v. Marriott, [1971], 1 All E.R. 595 (C.A.), the defendant possessed a penknife with some traces of cannabis on the blade. On appeal from the defendant's conviction, the Court of Appeal held that, in order to establish unlawful possession of cannabis, the prosecution had to show that the defendant knew or had reason to know that a foreign substance was

matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty." [1968] 2 All E.R. at 388.

10 Id., at 367.

" Id., at 367.

12 "It would, I think, be an improvement of a difficult position if Parliament were to enact that when a person has ownership or physical possession of drugs he shall be guilty unless he proves on a balance of the probabilities that he was unaware of their nature or had reasonable excuse for their possession. . . ." Id., at 390.

13 Id., at 370, 375, 391, 395.

14 Id., at 370, 391, 395. See section 4, Criminal Appeal Act of 1966. Lord Morris took the view that although the jury instruction was faulty, the admitted facts brought the

on the knife. The court noted that nothing said in Warner negated the necessity for such proof of knowledge. The conviction was quashed.

In R. v. Irving, [1970] Crim. L. Rev. 642, the defendant had a bottle in his possession which contained his stomach pills along with some amphetamines, the latter being a prohibited drug. He defended on the ground that the amphetamines had been prescribed for his wife, and that she must have put them in his bottle by mistake; consequently, he claimed, he had no knowledge that the amphetamines were there. The trial judge directed that if the defendant knowingly possessed the bottle he also possessed the contents, and the jury returned a guilty verdict. The Court of Appeal sustained the appeal, stating that the jury direction was wrong because the circumstances were comparable to those where a drug was slipped into a person's pocket or bag without his knowledge.

In R. v. Fernandez, [1970] Crim. L. Rev. 277, the defendant was convicted of possession of cannabis. The facts adduced at trial showed that the respondent had reason to believe that the package he was carrying contained a prohibited substance. The trial judge directed that "if the person were to receive the package under circumstances whereby it would be clear to any person of ordinary common sense that it might well contain either drugs or some other article which ought not to be in distribution the mere fact that it could not be shown that the carrier knew the exact contents would not prevent him from being guilty . . . the mere fact that the prosecution cannot show that he knew the exact nature of the drug would not matter if he did know that the package might well contain some prohibited article and if in fact it did contain a prohibited drug." On appeal it was held that, on the facts of the case, the direction was adequate. The Court of Appeal observed that: "The majority view in Warner was that one could not safely regard the offence as absolute: some mental element, or subjective test, might have to be applied."

In Sweet v. Parsley, [1969] 1 All E.R. 347 (H.L.), the House of Lords considered the question of whether a landlord who had no knowledge that cannabis was being smoked on his premises could be convicted for being concerned in the management of premises used for the smoking of cannabis under section 5(b) of the Dangerous Drugs Act of 1965. The court's holding that the conviction should be quashed hinged on the wording of section 5(b) and prior enactments. However, in the course of the opinion all of the justices agreed that knowledge is normally a requirement for conviction and that such requirement should not be lightly dispensed with. More important for the present case, several

defendant within his definition of possession, thereby justifying dismissal of the appeal. [1968] 2 All E.R. at 375.

justices commented as to what they thought Warner held in regard to the mental element required for conviction of possession.

Lord Reid stated that he had no reason to alter the view which he expressed in Warner, that knowledge is an element of the crime. 15 Lord Pearce, Lord Wilberforce, and Lord Diplock all expressed the view that the term "possession" as used in Warner imported a mental element. 16 One commentator has stated that prior to the enactment of the Misuse of Drugs Act of 1971, the mental element required for conviction for drug possession consisted of two states:

First, it had to be proved that an accused knew that he had actual or constructive possession of the article which contained the drugs. Secondly, although it could not be proved that the accused knew the exact nature of what he had, it had to be proved that there were facts from which it could be inferred that he knew he had a substance of an illicit nature, though not necessarily what kind of illicit substance it was. I. McClean & P. Morrish, Harris's Criminal Law 269 (22d ed. 1973). 17

We conclude that the statute under which the respondent was convicted contained a sufficient knowledge requirement to ensure that persons whose possession was entirely innocent would not be convicted. In this respect, cases such as Irving, Marriott, Smith, and Carpenter

15 [1969] 1 All E.R. at 349.

16 Id., at 358, 360, 361.

17 The Misuse of Drugs Act of 1971 attempted to clarify the law pertaining to possession of dangerous drugs. The Dangerous Drugs Act of 1965, under which the respondent was convicted, was repealed. Section 28 (3)(b) of the new Act specifically provided that a defendant shall be acquitted of various drug offenses, including possession:

(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or

(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.

By the enactment of this section, Parliament appears to have been taking the course suggested by Lord Reid and Lord Pearce in Warner, and thereby placing the burden on the defendant who has been shown to be in the physical control to prove that his possession was innocent.

There are several statements in the legislative history of the Misuse of Drugs Act of 1971 which indicate that at least one member of Parliament believed that as a result of Warner the crime of possession under the Dangerous Drugs Act of 1965 was "absolute" and did not require any mens rea. 808 Parl. Deb., H.C. (5th ser.) 617–18 (1970). This view ignores the fact that there was a substantial knowledge requirement before one could even be said to be in “possession” of a drug. To say that possession is an “absolute” offense begs the question. The term “absolute" is very imprecise. As was pointed out by Lord Pearce in Sweet v. Parsley, [1969] 1 All E.R. 347, 358 (H.L.), the term “absolute” may describe “an offence to which the normal assumption of mens rea does not apply, but in which the actual words of the offence (without any additional implication of mens rea) may well import some degree of knowledge, e.g., the word 'possession' as in Warner's case." We believe that the cases, not the Parliamentary Debates, are the most accurate source of information as to the state of English law at the time of the respondent's conviction.

establish that persons asserting plausible defenses based on lack of knowledge were not convicted. On the other hand, in cases such as Warner, Lockyer, Fernandez, and Dalas, where the defenses advanced were quite incredible, the courts sustained the convictions.

It is true that some of the formulations of the knowledge requirement in the British cases seem obtuse. It has been suggested that this may be due, in part, to judicial overreaction to the fear that juries would abuse a liberal formulation of the knowledge requirement and be too eager to allow drug peddlers to escape for lack of proof of knowledge. D. Miers, The Mental Element In Drug Offences, 20 Nor. Ir.L.Q. 370, 376–77, 383 (1969). See the commentary on the Dalas case in [1967] Crim. L. Rev. 125. This fear may have been misplaced; however, we do not believe that the Dangerous Drugs Act of 1965 created an offense which permitted the conviction of persons whose possession was innocent and readily explainable.

Conviction for possession of cannabis resin under the Dangerous Drugs Act of 1965 required that the defendant have had knowledge that he possessed an illicit substance which proved to be cannabis resin. A person who was entirely unaware that he possessed any illicit substance would not have been convicted under the Dangerous Drugs Act of 1965. The respondent's plea of guilty to the charge of possession of cannabis resin under the Dangerous Drugs Act of 1965 is a conviction of a law relating to the illicit possession of marihuana within the meaning of section 212(a)(23) of the Immigration and Nationality Act.

Furthermore, counsel's intimation that the respondent pleaded guilty on the advice of British counsel that British law did not permit a defense of lack of knowledge is not reflected in the record. In a letter dated March 14, 1972, British counsel retained by the respondent at the time of his conviction stated that he believed the respondent had a good defense on the facts of the case. 18 However, the respondent allegedly expressed a concern for the welfare of his wife, who was then pregnant and suffering physical and emotional difficulties, if she were called upon to testify. British counsel stated that he "was obliged to explain to him [the respondent] that the only course open that would obviate the need for her [his wife's] appearance would be for him to plead guilty." The letter implies that the respondent pleaded guilty to obviate the necessity for his wife's appearance as a witness. British counsel does not state that his advice to the respondent, or the respondent's decision to plead guilty, had anything to do with the unavailability of a defense based on lack of knowledge under the British statute.

The respondent had an opportunity to obtain advice of competent

18 A copy of this letter is appended to the respondent's motion to terminate dated March 24, 1972.