• In the case of R v Shivpuri [1987] AC1, [1986] Crim LR 53, the facts of the case suggested that the actual offence of dealing with controlled drugs was impossible to be committed
  • The case of R v Shivpuri also overruled Anderton v Ryan [1985] 2 All ER 355
  • First application of the 1966 Practice Statement (Note [1966] 3 All ER 77, [1966] 1 WLR 1234) in a criminal case after Anderton v Ryan

Facts of the Case

  • D (the appellant) had intended to receive, store and pass drugs on to third parties
  • These packages of drugs were smuggled into England and D was aware of this
  • D was caught at the English border, admitting his drug dealings, but after an examination of his suitcase, it was discovered that he had only been carrying snuff and other harmless vegetable matters
  • D was charged under s1 of the Criminal Attempts Act 1981 for attempting to commit the offence of being knowingly concerned in dealing with and harbouring prohibited drugs in breach of s.170(1)(b) of the Customs and Excise Management Act 1979
  • At the trial, the prosecution did not prove that D knew precisely what the prohibited goods were as long as he knew they were prohibited

Issues in R v Shivpuri [1987] AC1, [1986] Crim LR 536

  • The Court of Appeal dismissed D’s appeal that he could not be convicted of attempting to deal in or harbour prohibited drugs under by s.1(1) of the Criminal Attempts Act 1981 to constitute an attempt, because commission of the actual offence was impossible, and D also argued that the trial judge had misdirected the jury by stating that D did not have to know what exact prohibited drugs he was carrying as there were different maximum penalties corresponding to the different classes of drugs
  • The Court of Appeal dismissed D’s first appeal, after which D appealed to the House of Lords

Held by the House of Lords

  • Appeal dismissed and conviction upheld
  • Held – D’s act was more than merely preparatory as provided by s.1(2) of the Criminal Attempts Act 1981; otherwise, it would have been impossible to commit the actual offence (as the facts of the case suggested) and so would it also have been impossible to prove an act more than merely preparatory sections 1(2) and 2 of the Criminal Attempts At 1981 would become self-contradictory
  • Held – the trial judge’s directions of the jury did not amount to a misdirection because, regardless of the different classes of drugs and their corresponding sentences, the mens rea required was knowledge that the drugs were subject to a prohibition on their importation

Lord Hailsham of St Marylebone LC.

Lord Elwyn-Jones, Lord Scarman and Lord Mackay of Clashfern were laconic in their corroboration of Lord Hailsham’s opening speech of the judgement, which concluded that the appeal should be dismissed

  • Lord Hailsham provided this commentary on case distinguishment: ‘I must add, however, that, even had I not been able to follow my noble and learned friend in interring Anderton v Ryan by using the 1966 Practice Statement, I would still have dismissed the instant appeal by distinguishing its facts from that case. Shortly, my reasoning would have been that the appellant was guilty on the clear wording of s 1(1) and (2) of the 1981 Act and that no recourse was therefore necessary to the wording of s 1(3), which if so would be irrelevant.’ [at p.337]

Lord Bridge of Harwich

Lord Bridge provided a more comprehensive judgement on the case than all of the other judges in the panel

  • ‘However that may be, the distinction between acts which are ‘objectively innocent’ and those which are not is an essential element in the reasoning in Anderton v Ryan and the decision, unless it can be supported on some other ground, must stand or fall by the validity of this distinction. I am satisfied on further consideration that the concept of ‘objective innocence’ is incapable of sensible application in relation to the law of criminal attempts. The reason for this is that any attempt to commit an offence which involves ‘an act which is more than merely preparatory to the commission of the offence’ but which for any reason fails, so that in the event no offence is committed, must ex hypothesi, from the point view of the criminal law, be ‘objectively innocent’. [at p.344]
  • ‘I am thus led to the conclusion that there is no valid ground on which Anderton v Ryan can be distinguished.’ [at p.345]

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