Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the premises were used for that purpose.
Held: The offence was not an absolute offence. In order to afford a defence to offences involving mens rea, a defendant’s belief concerning facts had to be reasonable, as well as genuine or honest. A mental element, traditionally labelled mens rea, was an essential ingredient of any statutory offence unless Parliament had indicated a contrary intention, either expressly or by necessary implication: ‘The inquiry must be made, therefore, whether Parliament has used words which expressly enact or impliedly involve that an absolute offence is created. Though sometimes help in construction is derived from noting the presence or the absence of the word ‘knowingly,’ no conclusive test can be laid down as a guide in finding the fair, reasonable and common-sense meaning of language But in considering whether Parliament has decided to displace what is a general and somewhat fundamental rule it would not be reasonable lightly to impute to Parliament an intention to create an offence in such a way that someone could be convicted of it who by all reasonable and sensible standards is without fault.’
Lord Diplock said: ‘a general principle of construction of any enactment, which creates a criminal offence, [is] that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent.’
and ‘But such an inference [of strict liability] is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation.’
Lord Reid said: ‘But I regret to observe that, in some recent cases where serious offences have been held to be absolute offences, the court has taken into account no more than the wording of the Act and the character and seriousness of the mischief which constitutes the offence.’
and ‘Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.’
and ‘Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method.’
and ‘The other method would be in effect to substitute in appropriate classes of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime.’
and ‘In the well-known case of Sherras -v- De Rutzen [1895] QB 918 Wright J only mentioned the subject matter with which the Act deals. But he was there dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty.’ It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma. So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape. And equally important is the fact that fortunately the Press in this country are vigilant to expose injustice and every manifest unjust conviction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration. But I regret to observe that, in some more recent cases where serious offences have been held to be absolute offences, the court has taken into account no more than the wording of the Act and the character and seriousness of the mischief which constitutes the offence.’
Judges:
Lord Reid, Lord Diplock
Citations:
[1970] AC 132, [1969] UKHL 1, [1969] 1 All ER 347, (1969) 53 Cr App R 221, [1969] 2 WLR 470
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Sherras v De Rutzen QBD 2-May-1895
The court considered the need to establish mens rea where it was dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, and ‘There . .
Cited – Derbyshire v Houliston QBD 11-May-1897
The appellant was charged, under s. 27 of the Sale of Food and Drugs Act, 1875, with giving a false warranty in writing to a purchaser in respect of an article of food sold by the appellant. When the appellant sold the article he did not know, and . .
Cited – Pearks, Gunston and Tee Ltd v Ward KBD 25-Apr-1902
The Sale of Food and Drugs Act, 1875, s. 6, enacts that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a . .
Cited – Brend v Wood 1946
The court discussed the need to assume that conviction for an offence required proof of mens rea.
Lord Goddard CJ said: ‘It should first be observed that at common law there must always be mens rea to constitute a crime; if a person can show . .
Cited – Lim Chin Aik v The Queen PC 29-Nov-1962
Displaced Presumption Against Absolute Liability
In considering how the presumption against an absolute offence having been created, can be displaced ‘it is not enough in their Lordships’ opinions merely to label the statute as one dealing with a grave social evil and from that to infer that . .
Cited – Yeandel v Fisher 1966
. .
Cited – Warner v Metropolitan Police Commissioner HL 1968
The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been found in possession of drugs.
Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of the thing . .
Cited – Lockwood v The Attorney-General 28-Jun-1842
Alderson B said: ‘The rule of law, I take it, upon the construction of all statutes . . is, whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless . .
Cited – Dyke v Elliott (The ‘Gauntlet’) PC 9-Feb-1872
A French Ship of War captured in the English Channel a Prussian Ship as prize of war. A prize crew under a French naval Officer was put on board. The prize Ship being driven by stress of weather into the Downs, anchored within British waters, and . .
Cited – Woolmington v Director of Public Prosecutions HL 23-May-1935
Golden Thread of British Justice – Proof of Intent
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to . .
Cited – Thomas v The King 17-Dec-1937
High Court of Australia on appeal from the Court of Criminal Appeal of Victoria) The High Court was concerned with a charge of Bigamy. The accused believed that his former marriage was invalid and that he was lawfully entitled to the enter into the . .
Cited – Bank of New South Wales v Piper PC 1897
(New South Wales) ‘the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent.’ . .
Cited – Rex v Wheat; Rex v Stocks CCA 1921
. .
Cited – Regina v Gould CACD 18-Jan-1968
The defendant had been convicted on his plea of bigamy. His late arriving counsel failed to have the plea withdrawn on his advice that at the second wedding, the defendant had genuinely believed that the first marriage had been dissolved. . .
Cited by:
Cited – Regina v Muhamad CACD 19-Jul-2002
The appellant had been convicted of an offence under the section in that as a bankrupt, he ‘in the two years before the petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Restricted – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – Director of Public Prosecutions v Collins HL 19-Jul-2006
The defendant had made a series of racist and abusive calls to the office of his local MP. The prosecutor appealed a refusal to convict under the 1984 (now the 2003) Act. The defendant had argued that the messages had been offensive, but not grossly . .
Cited – Jackson v Regina CMAC 17-Oct-2006
The defendant appealed his conviction for unawful low flying, having hit a tower when flying below 100 feet.
Held: The offence was one of strict liability with only certain exceptions. ‘The reason that those subject to military law find . .
Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Cited – Regina v G; Regina v J HL 4-Mar-2009
G was to stand trial for possession of articles useful for terrorism. Whilst in prison, he collected and created diagrams and information and prepared plans to bomb a local army centre. When arrested he said he had done so to upset the prison . .
Cited – Thames Water Utilities Ltd v Bromley Magistrates’ Court Admn 20-Mar-2013
Sewage had escaped from the company’s facilities. They now sought judicial review of their conviction under the 1990 Act, saying there had been no ‘deposit’ of sewage.
Held: The request for review failed: ‘the answer to the question whether . .
Cited – Brown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .
Cited – Whiteside v The Director of Public Prosecutions Admn 21-Dec-2011
The defendant appealed by case stated against conviction under section 172 of failing to provide appropriate driver details. The notices had been received at his address, but he had been unaware of them. He was at the time working regularly in the . .
Cited – Pharmaceutical Society of Great Britain v Storkwain HL 19-Jun-1986
The defendant pharmacist had filled a prescription, but unknown to him the prescription was forged.
Held: The offence of sale of medicine contrary to the Act was one of strict liability, and was made out.
Lord Goff of Chieveley (with whom . .
Cited – Taylor, Regina v SC 3-Feb-2016
No Liability Extension on Taking Without Consent
Appeal by leave of the Court of Appeal on a point of law arising in the course of the trial of the appellant for aggravated vehicle taking, contrary to section 12A of the Theft Act 1968. The defendant had taken a vehicle without the owner’s consent, . .
Cited – Lane and Another, Regina v SC 11-Jul-2018
The defendants were to be tried for allegedly sending funds abroad to support terrorism. The court now considered the meaning of the phrase ‘reasonable cause to suspect’ in the context of the anticipated use of the funds: ‘Does it mean that the . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 01 February 2022; Ref: scu.180521
