Regina v Tolson: CCR 11 May 1889

Honest and Reasonable mistake – No Bigamy

The defendant appealed against her conviction for bigamy, saying that she had acted in a mistaken belief.
Held: A man commits bigamy if he goes through a marriage ceremony while his wife is alive, even though he honestly and reasonably believes she is dead. ‘At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim ‘actus non facit reum, nisi mens sit rea’. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication.’
Stephen J said: ‘The mental element of most crimes is marked by one of the words ‘maliciously’, ‘fraudulently’, ‘negligently’, or ‘knowingly’, but it is the general – I might, I think, say, the invariable – practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined.’ and
”Mens rea’ means in the case of rape, an intention to have forcible connection with a woman without her consent.’ As to the element of mens rea he said: Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds. It naturally suggests that, apart from all particular definitions’ of crimes, such a thing exists as a ‘mens rea’, or ‘guilty mind’, which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. ‘Mens rea’ means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name.’
Stephen J. concluded: ‘The principle involved appears to me, when fully considered, to amount to no more than this. The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.’

Cave J, Stephen J
(1889) 23 QBD 168, [1889] UKLawRpKQB 85
England and Wales
CitedFowler v Padget 8-Feb-1798
Mens Rea essential to crime
In order to constitute an act of bankruptcy by a trader in departing from his dwelling-house, it is not alone sufficient that a creditor should be thereby delayed, but the departure must also have been with that intent. The word ‘or’ in the statute . .
See AlsoRegina v Tolson 1864
(Surrey Summer Assizes) On an indictment for bigamy, a photographic likeness of the first husband allowed to be shown the witnesses present at the first marriage, in older to prove his identity with the person mentioned in the marriage certificate . .

Cited by:
CitedB (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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedDirector of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
CitedPharmaceutical 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 . .
CitedTaylor, 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, . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.195968