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MENS REA IN
STATUTORY OFFENCES.
POSITION IN ENGLAND.
Sebi S
INTRODUCTION.
• Crime is defined as an action or omission which
constitutes an offence and is punishable by law.
• An offence is basically a violation of law.
• Offence shall mean any act or omission made
punishable by any law for the time being in force. –
General Clauses Act, 1977.
• In legal parlance, the word “offence” is generally
construed as a criminal wrong. Hence, offence means a
wrong in penal law.
2
Offences can be classified into:
 Malum in se and
 Malum prohibitum.
3
MALUM IN SE.
 Malum in se (plural mala in se) is a Latin
phrase meaning wrong or evil in itself.
 The phrase is used to refer to conduct
assessed as sinful or inherently wrong by
nature, independent of regulations governing
the conduct.
4
MALUM IN SE.
 Offences that are malum in se are the one
that are inherently wrong or evil, like murder,
rape, etc.
 The society at large recognizes them as wrong.
 They have developed as offences over the
years and through decisions of the court.
 Hence, these are also called Common Law
offences as they are developed through
precedents.
5
MALUM PROHIBITUM.
6
 Offences that are malum prohibitum are the acts
that are wrong because they are prohibited by
statutes.
 For example, offences created by Road Traffic
Rules are not inherently wrong but, since they are
the rules that have to be followed on the road,
their violation would lead to penalty.
 Travelling in a car on the right side of the
road is not inherently wrong but, it is an
offence as the law does not allow it.
 It is these kinds of offences that are
referred to as Statutory Offences.
 They are the one that are created by statutes
which require strict interpretation.
7
These offences were as follows :-
 Offences calculated to prevent or obstruct the economic
development of the country and endanger its economic health.
 Evasion and avoidance of taxes lawfully imposed.
 Misuse of position by public servants in making of contracts and
disposal of public property, issue of licences and permits and
similar other matters.
 Delivery by individuals and industrial and commercial undertaking
of goods not in accordance with agreed specifications in
fulfilment of contracts entered into with public authorities.
8
▸ These crimes are very important for the society
and protect public interest.
▸ Hence, the offences falling under this class are
known as “Public Welfare Offences”.
▸ Hence, if a statute is enacted to recognize them
as criminal offences, they would be Statutory
Offences, commission of which would attract
punishments.
9
Mens rea.
ACTUS NON FACIT REUM NISI MENS SIT REA.
▸ The above well-known latin maxim describes the
relation between mens rea and a crime in general.
▸ Actus reus means a wrongful act.
▸ Mens rea means a wrongful intention.
▸ The maxim means that an act does not itself make
one guilty unless the mind is also guilty.
10
 The mere commission of a criminal act or
violation of law is not enough to constitute
a crime.
These generally require, in addition, some
elements of wrongful intent or other fault.
11
 Mens rea is a technical term.
 It means some blameworthy condition of the mind, the
absence of which on any particular occasion negatives the
condition of crime.
 It is one of the essential ingredients of criminal liability.
 A criminal offences is said to have been committed only
when an act, which is regarded as an offence in law, is done
voluntarily.
 Hence, an act becomes criminal only when done with a guilty
mind.
12
Our process is easy
 Before a criminal is made liable, he should be proven to
have some blameworthy mental condition (mens rea).
For example, when someone attacks you, then, causing
injury to him in private defence is not a crime but,
causing injury with the intention of revenge is a crime.
 This is how the presence of a guilty mind changes the
nature of the offence.
 But, the requirement of a guilty mind varies from crime
to crime.
 An intention which would qualify as the required mens
rea for one crime, may not for some other crime.
13
 In case of murder, it is the intent to cause death; in
case of theft, it is the intention to steal; in case of
rape, it is the intention to have sexual intercourse with
a woman without her consent, etc.
 Hence, although mens rea is a sine qua non of a criminal
act, its type and degree may vary from crime to crime.
 But, there are cases in which mens rea is not required
for an act to be an offence (statutory offence).
14
Roscoe Pound in an address to the State Bar
Association of North Dakota in 1927; said that
"statutory crimes without mens rea go counter to
the very common law conception of a crime."
15
ILLUSTRATION
1. A driver was waiting for person ‘P’ to show up on the streets, and when
he did, the driver deliberately hit that person in order to kill him or at
least with an intention to cause grievous injury to him. In such case
mens rea is present and the driver is criminally liable for his actions.
2. In a case where ‘A’ was out for hunting and in a sudden haste shot fires
his gun which caused the death of ‘B’, here B is dead but ‘A’ did not
intended to kill him or did any type of prior preparation for it. Here
Mens Rea is not present. ‘A’ shall be given punishment for his actions
but not for murder.
16
MENS REA IN STATUTORY OFFENCES.
▸ The rule is that mens rea in the form of intention or negligence is a
prerequisite for all common law crimes.
▸ There are common law crimes derived from practice and they are
different because they are created by the legislature which imposes a
punishment.
▸ The problem is that in certain instances the legislation may be silent
on the form of mens rea required, or not even require mens rea at all
(stricti juris).
17
▸ Where the statute is silent on mens rea
the starting point is that mens rea is
presumed.
▸ In other instances, the wording of the
statutes indicating mens rea which
indicates it is required.
18
R v. PRINCE
 A man named Henry Prince loved Annie Philips, an unmarried minor girl. He took
away her with an intention to marry her.
 The father of girl reported to the police against Henry Prince alleging that
Prince had illegally taken away his minor girl, below the age of 16 years.
 The Police arrested Henry Prince and filed criminal proceedings against him.
 Henry Prince was tried for having unlawfully taken away an unmarried girl below
the age of 16 years, out of the lawful possession and against the will of her
father/the natural guardian.
19
 The accused contended that he was under the
belief that she completed 18 years.
 He also contended that the girl herself told
him about her age was more than 18 years.
 The accused also argued that he had no mens
rea.
20
21
 Section 55 of the Offences Against the
Person Act 1861 is silent as to the mens
rea required for the offence.
 The issue in question was whether the court is
required to read mens rea requirement into a
statute which is silent as to the mens rea for
an offence, and therefore if H’s reasonable
belief was a defence to the offence under
Section 55.
😉
DECISION AND PRINCIPLES FORMULATED:
 Jury found upon evidence that before the defendant took her away
the girl had told him that she was 18.
 However Jury held that the accused’s belief about the age of the
girl was no defence.
 It was argued that the statute did not insist on the knowledge of
the accused that the girl was under 16 as necessary for conviction,
and that the Doctrine of Mens Rea, should nevertheless, be applied
and conviction be set aside in the option of criminal intention.
 Judges tried the case and all but one unanimously held that Henry
Prince was guilty of kidnapping.
22
RULES FORMULATED BY THE JURY.
 That when an act is in itself plainly criminal, and is more
severely punishable if certain circumstances co-exist,
ignorance of the existence of such circumstances is no answer
to a charge for the aggravated offence.
 That where an act is prima facie innocent and proper, unless
certain circumstances co-exist, then ignorance of such
circumstance is an answer to the charge.
 That the state of the defendant’s mind must amount to
absolute ignorance of the existence of the circumstances
which alters the character of the act, or to a belief in its non
existence.
 Where an act which is in itself wrong, under certain
circumstances, criminal/a person who does the wrong act
cannot set up as a defence that he was ignorant of the facts
which turned the wrong into a crime.
 Where a statute makes it penal to do an act under certain
circumstances, it is a question upon the wording and object of
the particular statute whether the responsibility of
ascertaining that the circumstances exist is thrown upon the
person who does the act or not. In the former case his
knowledge is immaterial.
R v.TOLSON (1889) 23 QBD 168
 In this case, Mrs. Tolson married in 1880.
 In 1881, Mr. Tolson deserted her and went away.
 She made all possible enquiries about him and
ultimately came to know that her husband Mr.
Tolson died in a ship accident in America.
 Therefore, supposing herself to be a widow, she
married another man in 1887.
25
 The whole story was known to the second
husband and the marriage was not secrecy.
 In the meantime, Mr. Tolson suddenly re-
appeared and prosecuted Mrs. Tolson for bigamy.
 In the trial Court, she was convicted for
imprisonment on the ground that a belief in good
faith and on reasonable facts about the death of
husband was no defence to the charge of bigamy.
26
 The accused was tried under Section 57 of the
Offences against the Persons Act, 1861 for having
committed the offence of bigamy.
 Under that Section, it was an offence for a
married person to contract a second marriage
during the life time of the husband or wife, as the
case may be.
 She appealed to the Court of Appeal.
 The question before the Court of Appeal was
whether Mrs. Tolson had guilty intention (mens
rea) in committing the offence of bigamy.
27
 The Court of Appeal by majority set aside the
conviction on the ground that a bona fide belief about
the death of the first husband at the time of second
marriage was a good defence in the offence of bigamy.
 It also opined that the statutory limitation for the
second marriage of seven years was completed at the
time of her second marriage and she informed the real
facts to the second husband. Hence Court of Appeal
acquitted the accused.
28
STATUTES MAY BE CLASSIFIED AS FOLLOWS:
1. Those requiring mens rea.
2. Expressly excluding mens rea.
3. Give no express indication as to whether or
not mens rea is an element of the offence.
29
1.STATUTES EXPRESSLY REQUIRING MENS REA.
The legislature uses words
such as:
▸ Maliciously
▸ Knowingly
▸ wilfully
▸ Wantonly
▸ Corruptly
▸ Fraudulently
▸ Allows
▸ Permits
▸ Suffers
▸ Fails
▸ Evades
▸ False
▸ cruelty
30
 The presumption may be rebutted if there are other
considerations which indicate the offence is one of
strict liability.
 The requirement of fault and particular form of fault
required may be made by the legislature to appear
expressly in the statute by the use of various words
such as “intentionally; maliciously; knowingly;
negligently...”
31
 Strict liability refers to no-faulty, hence liability
without proof of intention or negligence.
 Most often Stricti juris is found in public
affairs/ interest legislation.
 However, the normal principles of statutory
interpretation would ordinarily operate so as to
require fault as an element of statutory
offences.
32
2. STRICT LIABILITY/STATUTES EXPRESSLY
EXCLUDING MES REA
3. STATUTES GIVING NO EXPRESS INDICATION
AS TO REQUIREMENT OF MENS REA
 A large majority of statutes give no indication
regarding mens rea.
 In the absence of clear and convincing
indications to the contrary it is presumed that
the legislature never intended innocent violations
to be punishable but rather fault be an element
of criminal liability.
33
▸ This is fortified by the appearance in statutes
in question of fault words may indicate some
certainty that it is the legislature’s intention
that innocent violations of statutes should not
be punishable.
34
R v. H
 The appellant was convicted of having had illegal carnal
intercourse with a black woman but he contended he
thought she was coloured.
 The court held that he was found guilty on the basis
that mens rea was an essential ingredient of the
offence.
 Negligence may constitute sufficient proof of mens
rea even in cases where negligence is not the gist of
the offence charged, if there was a duty on the part
of the person to be circumspect.
35
PRESUMPTION REQUIRING MENS REA.
 In statutory interpretation, certain presumptions are
taken into account by the court while interpreting the
statutes.
 The presumption relevant here is that a criminal act in
general requires the presence of mens rea.
 Almost all crimes that exist independently of any
statute require, for their commission, some
blameworthy state of mind on the part of the actor.
36
Where a statute creates an offence, no matter
how comprehensive and absolute the language of
the statute is, it is usually understood to be
silently requiring that the element of mens rea be
imported into the definition of the crime
(offence) so defined, unless a contrary intention
is expressed or implied.
37
▸ The plain words of a statute are read subject to a
presumption (of arguable weight), which may be
rebutted, that the general rule of law that no
crime can be committed unless there is mens rea
has not been ousted by the particular enactment.
38
BREND v. WOOD
 In the case of Brend v. Wood, Lord Goddard, C.J. held
that :-
“It is of the utmost importance for the protection of
the liberty of the subject that a court should always
bear in mind that, unless a statute, either clearly or by
necessary implication, rules out mens rea as a
constituent part of a crime, the court should not find a
man guilty of an offence against the criminal law unless
he has a guilty mind.”
39
HOBBS v. WINCHESTER CORPORATION
▸ Meat had been seized under section 116 of the Public Health
Act 1875 as unfit for human consumption.
▸ The butcher was acquitted of any offence under section 117 of
that Act, on the grounds that he was unaware that it was unfit
for consumption.
▸ The plaintiff ( butcher), was sued for compensation for meat
which had been destroyed under the Act.
▸ The Act provided that where any person sustained damage in
relation to any matter as to which he was not himself in
default, full compensation should be paid.
40
HOBBS v. WINCHESTER CORPORATION
▸ The question was whether the plaintiff was in
default. He was unaware, and he could not have
discovered by any examination, which he could
reasonably be expected to make, that the
meat was unsound.
▸ It was held by the Court of Appeal, that the
plaintiff was in default because he was guilty
of the crime of selling unsound meat.
41
HOBBS v. WINCHESTER CORPORATION
▸ Kennedy, L.J. said that “there is a clear balance of authority
that in construing a modern statute, this presumption as to
mens rea does not exist.”
▸ This can particularly hold good if Roscoe Pound’s definition of
statutory offences is considered.
▸ He said that “such statutes are not meant to punish the
vicious will but to put pressure on the thoughtless and
inefficient to do their whole duty in the interest of public
health or safety or morals.” There is also another angle to it.
42
REYNOLDS v. G.H. AUSTIN & SONS LTD.
▸ In this case, Lord Evershed said- “Where the
subject matter of the statute is the regulations
for the public welfare of a particular activity-
statutes regulating the sale of food and drink are
to be found among the earliest examples- it can
be and frequently has been inferred that the
legislature intended that such activities should be
carried out under conditions of strict liability”.
▸ The presumption is that the statute or statutory
instrument can be effectively enforced only if
those in charge of the relevant activities are
made responsible for seeing that they are
complied with.
▸ When such a presumption is to be inferred, it
displaces the ordinary presumption of mens rea.
44
▸ Nevertheless, it is not enough merely to label the statute as
one dealing with a grave social evil and from that to infer that
strict liability was intended.
▸ It is pertinent also to inquire whether putting the defendant
under strict liability will assist in the enforcement of the
regulations.
▸ Nevertheless, it is not enough merely to label the statute as
one dealing with a grave social evil and from that to infer that
strict liability was intended.
▸ It is pertinent also to inquire whether putting the defendant
under strict liability will assist in the enforcement of the
regulations.
45
▸ There must be something he can do, directly or
indirectly, which will promote the observance of the
regulations.
▸ Unless this is so, there is no reason in penalizing him,
and it cannot be inferred that the legislature
imposed strict liability merely in order to find a
luckless victim.
46
 Lord Evershed also said that two conditions
must be satisfied if the presumption as to
mens rea is to be rebutted;
 The strict liability must be required to give
practical effect to the legislative intention;
and,
 The person charged with a breach of the
statutory requirements must have had some
opportunity of furthering their observance.
47
 The presumption as to mens rea is a general rule,
then presumption against mens rea in statutory
offences would be an exception to the rule.
 In such a case, the presumption of mens rea in
statutory offences would in turn be an exception
to that exception.
48
PRESUMPTION NOT USED IN STATUTORY
OFFENCES – AN EXCEPTION
 This situation is one in which a statutory offence is committed
and the presumption requiring mens rea is not used to decide the
case.
R. v. St. Margarets Trust Ltd.
 In this case, a contravention had occurred of Article 1 of the
Hire-Purchase and Credit Sale Agreements (Control) Order, 1956.
 The article provided that a person should not dispose of any
goods to which the Order applied in pursuance of a hire-purchase
agreement unless the requirements specified in Schedule 2 of the
Order were satisfied, the requirement being that 50% of the
cash price should be paid before the agreement was signed.
49
 Nevertheless, the said contravention was held to be an offence
even though the act was innocently done.
 The words of the order were “an express and unqualified
prohibition”.
 Its object was to help to defend the currency against the peril of
inflation which, if unchecked, would bring disaster upon the
country.
50
According to J.Donovan
▸ “The present generation has witnessed the collapse of the
currency in other countries and consequent chaos, misery and
widespread ruin. It would not be at all surprising if Parliament
determined to prevent similar calamities here, enacted
measures which it intended to be absolute prohibitions of acts
which might increase the risk of however small a degree. There
would be a little point in enacting that no one should breach the
defences against a flood, and at the same time excusing anyone
who did it innocently”.
51
LOCKYER v. GIBB.
 In this case, the Divisional Court held that being “in possession of
a drug” contrary to Regulation 9 of the Dangerous Drugs (No. 2)
Regulations, 1964 is an absolute offence.
 Although it must be proved that the accused knew that he had
the article which turned out to be a drug, it need not be shown
that he knew what the article was.
 Lord Parker, C.J. said that the regulation was a public welfare
provision.
 If one considered the mischief aimed at alone, there was every
reason for treating a provision such as this as a provision imposing
absolute liability.
52
 These were some important examples where the exception to
the presumption requiring mens rea has been applied.
 In these cases, punishment was given for statutory offences,
without mens rea on the part of the accused.
 This generally does happen in such offences, due to them
being linked with public welfare and national interest.
 But, in certain other cases, the element of mens rea is
somehow or the other incorporated into the definition of the
statutory offences, thereby helping out the accused.
53
PRESUMPTION USED IN STATUTORY OFFENCES – AN EXCEPTION
TO THE EXCEPTION
 In spite of the rule being developed that the presumption
requiring mens rea will not be used in cases of Statutory
Offences, there have been situations where it has been used.
 One of the best and earliest examples of this is the case of
Sherras v. De Rutzen.
 In this case, the defendant was convicted of selling alcohol to a
police officer while on duty under Section 16(2) of Licensing Act
1872.
 It was customary for police officers to wear an armlet while on
duty but this constable had removed his.
54
▸ The appellant therefore believed that he was off duty.
▸ The statute was silent as to the question of whether
knowledge was required for the offence.
▸ The appellant was convicted and appealed contending
that knowledge that the officer was on duty was a
requirement of the offence.
▸ The appeal was allowed and his conviction was quashed
after the court applied the presumption requiring mens
rea in this Statutory Offence.
55
Wright, J. held that :-
 “There is a presumption that mens rea, an evil intention, or a
knowledge of the wrongfulness of the act, is an essential ingredient
in every offence; but that presumption is liable to be displaced
either by the words of the statute creating the offence or by the
subject-matter with which it deals. It is plain that if guilty
knowledge is not necessary, no care on the part of the public could
save him from a conviction under Section 16(2), since it would be as
easy for the constable to deny that he was on duty when asked, or
to produce a forged permission from his superior officer, as to
remove his armlet before entering the public house. I am,
therefore, of opinion that this conviction ought to be quashed.”
56
R v. CURR
▸ The facts were that under Section 9(b) of the Family
Allowances Act, 1965 (which replaced Section 9(b) of the
Family Allowances Act, 1945), it is an offence to obtain or
receive “any sum as on account of an allowance, either as in
the defendant’s own right or as on behalf of another, knowing
that it was not properly payable, or not properly receivable
by him or her.
57
▸ It was held that a trafficker in family allowances,
who was making 800% interest a year on his
dealings, and who had a number of women agents,
could not be convicted of soliciting, or conspiring
with them to commit an offence under Section
9(b) unless it was proved that the agents knew
that the allowances were not properly receivable
by them.
58
▸ The Crown argued that an agent must be taken to know the law
and hence, that an allowance was not properly receivable by her.
▸ But, the court replied that the offence created by the statute
was not an absolute one, that there might be circumstances in
which receipt of another person’s allowance would be lawful, and
that knowledge of the wrongfulness of the transaction must
therefore be proved.
Hence, it can be seen that even though a rule of not using the
presumption in Statutory Offences has developed, the
presumption is still used when the courts feel fit or necessary
for it to be used, in order to maintain justice.
59
CONCLUSION
▸ “Mens rea is an essential ingredient of a criminal offence
unless the statute expressly or by necessary implication
excludes it.
▸ The mere fact that the object of the statute is to promote
welfare activities or to eradicate a grave social evil is by
itself not decisive of the question whether the element of
guilty mind is excluded from the ingredients of an offence.
▸ Mens rea by necessary implication may be excluded from a
statute only where it is absolutely clear that the
implementation of the object of the statute would otherwise
be defeated.”
60
THANK YOU
61

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Mens rea

  • 1. MENS REA IN STATUTORY OFFENCES. POSITION IN ENGLAND. Sebi S
  • 2. INTRODUCTION. • Crime is defined as an action or omission which constitutes an offence and is punishable by law. • An offence is basically a violation of law. • Offence shall mean any act or omission made punishable by any law for the time being in force. – General Clauses Act, 1977. • In legal parlance, the word “offence” is generally construed as a criminal wrong. Hence, offence means a wrong in penal law. 2
  • 3. Offences can be classified into:  Malum in se and  Malum prohibitum. 3
  • 4. MALUM IN SE.  Malum in se (plural mala in se) is a Latin phrase meaning wrong or evil in itself.  The phrase is used to refer to conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct. 4
  • 5. MALUM IN SE.  Offences that are malum in se are the one that are inherently wrong or evil, like murder, rape, etc.  The society at large recognizes them as wrong.  They have developed as offences over the years and through decisions of the court.  Hence, these are also called Common Law offences as they are developed through precedents. 5
  • 6. MALUM PROHIBITUM. 6  Offences that are malum prohibitum are the acts that are wrong because they are prohibited by statutes.  For example, offences created by Road Traffic Rules are not inherently wrong but, since they are the rules that have to be followed on the road, their violation would lead to penalty.
  • 7.  Travelling in a car on the right side of the road is not inherently wrong but, it is an offence as the law does not allow it.  It is these kinds of offences that are referred to as Statutory Offences.  They are the one that are created by statutes which require strict interpretation. 7
  • 8. These offences were as follows :-  Offences calculated to prevent or obstruct the economic development of the country and endanger its economic health.  Evasion and avoidance of taxes lawfully imposed.  Misuse of position by public servants in making of contracts and disposal of public property, issue of licences and permits and similar other matters.  Delivery by individuals and industrial and commercial undertaking of goods not in accordance with agreed specifications in fulfilment of contracts entered into with public authorities. 8
  • 9. ▸ These crimes are very important for the society and protect public interest. ▸ Hence, the offences falling under this class are known as “Public Welfare Offences”. ▸ Hence, if a statute is enacted to recognize them as criminal offences, they would be Statutory Offences, commission of which would attract punishments. 9
  • 10. Mens rea. ACTUS NON FACIT REUM NISI MENS SIT REA. ▸ The above well-known latin maxim describes the relation between mens rea and a crime in general. ▸ Actus reus means a wrongful act. ▸ Mens rea means a wrongful intention. ▸ The maxim means that an act does not itself make one guilty unless the mind is also guilty. 10
  • 11.  The mere commission of a criminal act or violation of law is not enough to constitute a crime. These generally require, in addition, some elements of wrongful intent or other fault. 11
  • 12.  Mens rea is a technical term.  It means some blameworthy condition of the mind, the absence of which on any particular occasion negatives the condition of crime.  It is one of the essential ingredients of criminal liability.  A criminal offences is said to have been committed only when an act, which is regarded as an offence in law, is done voluntarily.  Hence, an act becomes criminal only when done with a guilty mind. 12
  • 13. Our process is easy  Before a criminal is made liable, he should be proven to have some blameworthy mental condition (mens rea). For example, when someone attacks you, then, causing injury to him in private defence is not a crime but, causing injury with the intention of revenge is a crime.  This is how the presence of a guilty mind changes the nature of the offence.  But, the requirement of a guilty mind varies from crime to crime.  An intention which would qualify as the required mens rea for one crime, may not for some other crime. 13
  • 14.  In case of murder, it is the intent to cause death; in case of theft, it is the intention to steal; in case of rape, it is the intention to have sexual intercourse with a woman without her consent, etc.  Hence, although mens rea is a sine qua non of a criminal act, its type and degree may vary from crime to crime.  But, there are cases in which mens rea is not required for an act to be an offence (statutory offence). 14
  • 15. Roscoe Pound in an address to the State Bar Association of North Dakota in 1927; said that "statutory crimes without mens rea go counter to the very common law conception of a crime." 15
  • 16. ILLUSTRATION 1. A driver was waiting for person ‘P’ to show up on the streets, and when he did, the driver deliberately hit that person in order to kill him or at least with an intention to cause grievous injury to him. In such case mens rea is present and the driver is criminally liable for his actions. 2. In a case where ‘A’ was out for hunting and in a sudden haste shot fires his gun which caused the death of ‘B’, here B is dead but ‘A’ did not intended to kill him or did any type of prior preparation for it. Here Mens Rea is not present. ‘A’ shall be given punishment for his actions but not for murder. 16
  • 17. MENS REA IN STATUTORY OFFENCES. ▸ The rule is that mens rea in the form of intention or negligence is a prerequisite for all common law crimes. ▸ There are common law crimes derived from practice and they are different because they are created by the legislature which imposes a punishment. ▸ The problem is that in certain instances the legislation may be silent on the form of mens rea required, or not even require mens rea at all (stricti juris). 17
  • 18. ▸ Where the statute is silent on mens rea the starting point is that mens rea is presumed. ▸ In other instances, the wording of the statutes indicating mens rea which indicates it is required. 18
  • 19. R v. PRINCE  A man named Henry Prince loved Annie Philips, an unmarried minor girl. He took away her with an intention to marry her.  The father of girl reported to the police against Henry Prince alleging that Prince had illegally taken away his minor girl, below the age of 16 years.  The Police arrested Henry Prince and filed criminal proceedings against him.  Henry Prince was tried for having unlawfully taken away an unmarried girl below the age of 16 years, out of the lawful possession and against the will of her father/the natural guardian. 19
  • 20.  The accused contended that he was under the belief that she completed 18 years.  He also contended that the girl herself told him about her age was more than 18 years.  The accused also argued that he had no mens rea. 20
  • 21. 21  Section 55 of the Offences Against the Person Act 1861 is silent as to the mens rea required for the offence.  The issue in question was whether the court is required to read mens rea requirement into a statute which is silent as to the mens rea for an offence, and therefore if H’s reasonable belief was a defence to the offence under Section 55.
  • 22. 😉 DECISION AND PRINCIPLES FORMULATED:  Jury found upon evidence that before the defendant took her away the girl had told him that she was 18.  However Jury held that the accused’s belief about the age of the girl was no defence.  It was argued that the statute did not insist on the knowledge of the accused that the girl was under 16 as necessary for conviction, and that the Doctrine of Mens Rea, should nevertheless, be applied and conviction be set aside in the option of criminal intention.  Judges tried the case and all but one unanimously held that Henry Prince was guilty of kidnapping. 22
  • 23. RULES FORMULATED BY THE JURY.  That when an act is in itself plainly criminal, and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.  That where an act is prima facie innocent and proper, unless certain circumstances co-exist, then ignorance of such circumstance is an answer to the charge.  That the state of the defendant’s mind must amount to absolute ignorance of the existence of the circumstances which alters the character of the act, or to a belief in its non existence.
  • 24.  Where an act which is in itself wrong, under certain circumstances, criminal/a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into a crime.  Where a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the particular statute whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial.
  • 25. R v.TOLSON (1889) 23 QBD 168  In this case, Mrs. Tolson married in 1880.  In 1881, Mr. Tolson deserted her and went away.  She made all possible enquiries about him and ultimately came to know that her husband Mr. Tolson died in a ship accident in America.  Therefore, supposing herself to be a widow, she married another man in 1887. 25
  • 26.  The whole story was known to the second husband and the marriage was not secrecy.  In the meantime, Mr. Tolson suddenly re- appeared and prosecuted Mrs. Tolson for bigamy.  In the trial Court, she was convicted for imprisonment on the ground that a belief in good faith and on reasonable facts about the death of husband was no defence to the charge of bigamy. 26
  • 27.  The accused was tried under Section 57 of the Offences against the Persons Act, 1861 for having committed the offence of bigamy.  Under that Section, it was an offence for a married person to contract a second marriage during the life time of the husband or wife, as the case may be.  She appealed to the Court of Appeal.  The question before the Court of Appeal was whether Mrs. Tolson had guilty intention (mens rea) in committing the offence of bigamy. 27
  • 28.  The Court of Appeal by majority set aside the conviction on the ground that a bona fide belief about the death of the first husband at the time of second marriage was a good defence in the offence of bigamy.  It also opined that the statutory limitation for the second marriage of seven years was completed at the time of her second marriage and she informed the real facts to the second husband. Hence Court of Appeal acquitted the accused. 28
  • 29. STATUTES MAY BE CLASSIFIED AS FOLLOWS: 1. Those requiring mens rea. 2. Expressly excluding mens rea. 3. Give no express indication as to whether or not mens rea is an element of the offence. 29
  • 30. 1.STATUTES EXPRESSLY REQUIRING MENS REA. The legislature uses words such as: ▸ Maliciously ▸ Knowingly ▸ wilfully ▸ Wantonly ▸ Corruptly ▸ Fraudulently ▸ Allows ▸ Permits ▸ Suffers ▸ Fails ▸ Evades ▸ False ▸ cruelty 30
  • 31.  The presumption may be rebutted if there are other considerations which indicate the offence is one of strict liability.  The requirement of fault and particular form of fault required may be made by the legislature to appear expressly in the statute by the use of various words such as “intentionally; maliciously; knowingly; negligently...” 31
  • 32.  Strict liability refers to no-faulty, hence liability without proof of intention or negligence.  Most often Stricti juris is found in public affairs/ interest legislation.  However, the normal principles of statutory interpretation would ordinarily operate so as to require fault as an element of statutory offences. 32 2. STRICT LIABILITY/STATUTES EXPRESSLY EXCLUDING MES REA
  • 33. 3. STATUTES GIVING NO EXPRESS INDICATION AS TO REQUIREMENT OF MENS REA  A large majority of statutes give no indication regarding mens rea.  In the absence of clear and convincing indications to the contrary it is presumed that the legislature never intended innocent violations to be punishable but rather fault be an element of criminal liability. 33
  • 34. ▸ This is fortified by the appearance in statutes in question of fault words may indicate some certainty that it is the legislature’s intention that innocent violations of statutes should not be punishable. 34
  • 35. R v. H  The appellant was convicted of having had illegal carnal intercourse with a black woman but he contended he thought she was coloured.  The court held that he was found guilty on the basis that mens rea was an essential ingredient of the offence.  Negligence may constitute sufficient proof of mens rea even in cases where negligence is not the gist of the offence charged, if there was a duty on the part of the person to be circumspect. 35
  • 36. PRESUMPTION REQUIRING MENS REA.  In statutory interpretation, certain presumptions are taken into account by the court while interpreting the statutes.  The presumption relevant here is that a criminal act in general requires the presence of mens rea.  Almost all crimes that exist independently of any statute require, for their commission, some blameworthy state of mind on the part of the actor. 36
  • 37. Where a statute creates an offence, no matter how comprehensive and absolute the language of the statute is, it is usually understood to be silently requiring that the element of mens rea be imported into the definition of the crime (offence) so defined, unless a contrary intention is expressed or implied. 37
  • 38. ▸ The plain words of a statute are read subject to a presumption (of arguable weight), which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment. 38
  • 39. BREND v. WOOD  In the case of Brend v. Wood, Lord Goddard, C.J. held that :- “It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.” 39
  • 40. HOBBS v. WINCHESTER CORPORATION ▸ Meat had been seized under section 116 of the Public Health Act 1875 as unfit for human consumption. ▸ The butcher was acquitted of any offence under section 117 of that Act, on the grounds that he was unaware that it was unfit for consumption. ▸ The plaintiff ( butcher), was sued for compensation for meat which had been destroyed under the Act. ▸ The Act provided that where any person sustained damage in relation to any matter as to which he was not himself in default, full compensation should be paid. 40
  • 41. HOBBS v. WINCHESTER CORPORATION ▸ The question was whether the plaintiff was in default. He was unaware, and he could not have discovered by any examination, which he could reasonably be expected to make, that the meat was unsound. ▸ It was held by the Court of Appeal, that the plaintiff was in default because he was guilty of the crime of selling unsound meat. 41
  • 42. HOBBS v. WINCHESTER CORPORATION ▸ Kennedy, L.J. said that “there is a clear balance of authority that in construing a modern statute, this presumption as to mens rea does not exist.” ▸ This can particularly hold good if Roscoe Pound’s definition of statutory offences is considered. ▸ He said that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.” There is also another angle to it. 42
  • 43. REYNOLDS v. G.H. AUSTIN & SONS LTD. ▸ In this case, Lord Evershed said- “Where the subject matter of the statute is the regulations for the public welfare of a particular activity- statutes regulating the sale of food and drink are to be found among the earliest examples- it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability”.
  • 44. ▸ The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. ▸ When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. 44
  • 45. ▸ Nevertheless, it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. ▸ It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. ▸ Nevertheless, it is not enough merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. ▸ It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. 45
  • 46. ▸ There must be something he can do, directly or indirectly, which will promote the observance of the regulations. ▸ Unless this is so, there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. 46
  • 47.  Lord Evershed also said that two conditions must be satisfied if the presumption as to mens rea is to be rebutted;  The strict liability must be required to give practical effect to the legislative intention; and,  The person charged with a breach of the statutory requirements must have had some opportunity of furthering their observance. 47
  • 48.  The presumption as to mens rea is a general rule, then presumption against mens rea in statutory offences would be an exception to the rule.  In such a case, the presumption of mens rea in statutory offences would in turn be an exception to that exception. 48
  • 49. PRESUMPTION NOT USED IN STATUTORY OFFENCES – AN EXCEPTION  This situation is one in which a statutory offence is committed and the presumption requiring mens rea is not used to decide the case. R. v. St. Margarets Trust Ltd.  In this case, a contravention had occurred of Article 1 of the Hire-Purchase and Credit Sale Agreements (Control) Order, 1956.  The article provided that a person should not dispose of any goods to which the Order applied in pursuance of a hire-purchase agreement unless the requirements specified in Schedule 2 of the Order were satisfied, the requirement being that 50% of the cash price should be paid before the agreement was signed. 49
  • 50.  Nevertheless, the said contravention was held to be an offence even though the act was innocently done.  The words of the order were “an express and unqualified prohibition”.  Its object was to help to defend the currency against the peril of inflation which, if unchecked, would bring disaster upon the country. 50
  • 51. According to J.Donovan ▸ “The present generation has witnessed the collapse of the currency in other countries and consequent chaos, misery and widespread ruin. It would not be at all surprising if Parliament determined to prevent similar calamities here, enacted measures which it intended to be absolute prohibitions of acts which might increase the risk of however small a degree. There would be a little point in enacting that no one should breach the defences against a flood, and at the same time excusing anyone who did it innocently”. 51
  • 52. LOCKYER v. GIBB.  In this case, the Divisional Court held that being “in possession of a drug” contrary to Regulation 9 of the Dangerous Drugs (No. 2) Regulations, 1964 is an absolute offence.  Although it must be proved that the accused knew that he had the article which turned out to be a drug, it need not be shown that he knew what the article was.  Lord Parker, C.J. said that the regulation was a public welfare provision.  If one considered the mischief aimed at alone, there was every reason for treating a provision such as this as a provision imposing absolute liability. 52
  • 53.  These were some important examples where the exception to the presumption requiring mens rea has been applied.  In these cases, punishment was given for statutory offences, without mens rea on the part of the accused.  This generally does happen in such offences, due to them being linked with public welfare and national interest.  But, in certain other cases, the element of mens rea is somehow or the other incorporated into the definition of the statutory offences, thereby helping out the accused. 53
  • 54. PRESUMPTION USED IN STATUTORY OFFENCES – AN EXCEPTION TO THE EXCEPTION  In spite of the rule being developed that the presumption requiring mens rea will not be used in cases of Statutory Offences, there have been situations where it has been used.  One of the best and earliest examples of this is the case of Sherras v. De Rutzen.  In this case, the defendant was convicted of selling alcohol to a police officer while on duty under Section 16(2) of Licensing Act 1872.  It was customary for police officers to wear an armlet while on duty but this constable had removed his. 54
  • 55. ▸ The appellant therefore believed that he was off duty. ▸ The statute was silent as to the question of whether knowledge was required for the offence. ▸ The appellant was convicted and appealed contending that knowledge that the officer was on duty was a requirement of the offence. ▸ The appeal was allowed and his conviction was quashed after the court applied the presumption requiring mens rea in this Statutory Offence. 55
  • 56. Wright, J. held that :-  “There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals. It is plain that if guilty knowledge is not necessary, no care on the part of the public could save him from a conviction under Section 16(2), since it would be as easy for the constable to deny that he was on duty when asked, or to produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed.” 56
  • 57. R v. CURR ▸ The facts were that under Section 9(b) of the Family Allowances Act, 1965 (which replaced Section 9(b) of the Family Allowances Act, 1945), it is an offence to obtain or receive “any sum as on account of an allowance, either as in the defendant’s own right or as on behalf of another, knowing that it was not properly payable, or not properly receivable by him or her. 57
  • 58. ▸ It was held that a trafficker in family allowances, who was making 800% interest a year on his dealings, and who had a number of women agents, could not be convicted of soliciting, or conspiring with them to commit an offence under Section 9(b) unless it was proved that the agents knew that the allowances were not properly receivable by them. 58
  • 59. ▸ The Crown argued that an agent must be taken to know the law and hence, that an allowance was not properly receivable by her. ▸ But, the court replied that the offence created by the statute was not an absolute one, that there might be circumstances in which receipt of another person’s allowance would be lawful, and that knowledge of the wrongfulness of the transaction must therefore be proved. Hence, it can be seen that even though a rule of not using the presumption in Statutory Offences has developed, the presumption is still used when the courts feel fit or necessary for it to be used, in order to maintain justice. 59
  • 60. CONCLUSION ▸ “Mens rea is an essential ingredient of a criminal offence unless the statute expressly or by necessary implication excludes it. ▸ The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. ▸ Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.” 60