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 speculations’. The actus reus – the bankruptcy petition and the bankruptcy to which it gives rise – does not exist and may never come to exist at the time of the gambling or speculations.
Held: Under Article 7 of the ECHR, retrospectivity under section 362(1)(a) did not offend the principle of legal certainty or Article 7 (in relation to which it was held to be proportionate). There is nothing objectionable in principle with strict liability offences under Article 7 which required a different conclusion, than that the offence under section 362(1)(a) is one of strict liability.
Dyson LJ said: The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified.’
Lord Justice Dyson, Mr Justice Silber and Judge Goddard, QC
Times 16-Aug-2002, [2002] EWCA Crim 1856, [2003] QB 1031, [2003] 2 WLR 1050
Bailii
Insolvency Act 1986 362(1)(a), European Convention on Human Rights 10
Citing:
CitedGammon v The Attorney-General of Hong Kong PC 1984
(Hong kong) The court considered the need at common law to show mens rea. A Hong Kong Building Ordinance created offences of strict liability in pursuit of public safety which strict liability was calculated to promote.
Held: Lord Scarman . .
CitedSweet v Parsley HL 23-Jan-1969
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 . .
Not bindingRegina v Salter 1968
. .
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .

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Updated: 08 January 2021; Ref: scu.174710