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Published online by Cambridge University Press: 16 January 2009
In all common law crimes, other than common nuisance, it appears that some culpable mental element, or mens rea, is required. The mental element is ‘culpable’ in the sense that the actus is only criminal when it is coupled with a realization of the probable consequences of the act or omission. In statutory offences this rule does not hold good; the actus may be prohibited in such language that a person may be liable for doing an act whether or not he did, or could, have foreseen the consequences. Such offences create what is commonly called Absolute Liability. Unfortunately our judges have used the expression mens rea in different senses. In this paper I use mens rea in its common law sense, and discuss at the end a meaning of mens rea that is now becoming common.
1 See Russell, Crimes, 8th ed. ii, 1696.
2 See the article by Mr. J. W. C. Turner in this issue. I am in full agreement with Mr. Turner's conclusions.
3 Pearks, Gunston & Tee, Ltd. v. Ward [1902] 2 K. B. 1, per Channell J. at 11.
4 General statements will be found in these cases, some of which are discussed later:— Cundy v. Le Cocq (1884) 13 Q. B. D. 207, per Stephen J. at 210; R. v. Tolson (1889) 23 Q. B. D. 168, per Wills J. at 172; Sherras v. De Rutzen [1895] 1 Q. B. 918, per Wright J. at 921; Derbyshire v. Houliston [1897] 1 Q. B. 772, per Wright J. at 776; Coppen v. Moore [1898] 2 Q. B. 306, per Lord Russel C.J. at 312; Parker v. Alder [1899] 1 Q. B. 20, per Lord Russel C.J. at 25; Williamson v. Norris [1899] 1 Q. B. 7, per Lord Russel C.J. at 14; Provincial Motor Cab Co. Ltd. v. Dunning [1909] 2 K. B. 599, per Lord Alverstone C.J. at 603; Moussel Bros. Ltd. v. L. & N. W. Ry. [1917] 2 K. B. 836, per Atkin J. at 845; Re Mahmoud and Ispahani [1921] 2 K. B. 716, per Scrutton L.J. at 728, per Atkin L.J. at 731; Law Society v. United Service Bureau, Ltd. (1933) 98 J. P. 33, per Avory J. at 36. It was asserted by the Privy Council in Bank of New South Wales v. Piper [1897] A. C. 383 that mens rea is always necessary, but it was not a strong bench and in view of the authority to the contrary this case could hardly be followed.
5 Russell, Crimes, i, 105; Archbold, Criminal Pleading, 29th ed. 21; Halsbury, Laws of England, 2nd ed. ix, sect. 3; Stroud, Mens Rea, 39.
6 Bl. Comm. i, 92. At i, 88 Blackstone says that, ‘Penal statutes must be construed strictly.’
7 These statutes begin in 1827, and by piecemeal abolition had removed most of the capital offences by 1841; consolidation of these Acts took place in 1861. Stephen, History of the Criminal Law, i. 472.
8 See Maxwell, Interpretation of Statutes, 7th ed. 1929, 226 seq., and Craies,. Statute Law, 3rd ed. 1923, 441 seq.
9 Att.-Gen. v. Sillem (1863) 2 H. & C. 431, at 510.
10 Remmington v. Larchin [1921] 3 K. B. 404 (C. A.), per Bankes L.J. at 408; Atkin and Scrutton L.JJ. to the same effect, Scrutton L.J. basing his view on a similar statement in Tuck v. Priester (1887) 19 Q. B. D. 629, 638.
11 Maxwell, op. cit. 245, cited with approval by Kennedy L.J. in Re Boaler [1915] 1 K. B. 21 at 34.
12 The Gauntlet (1871) 4 P. C. 184 at 191.
13 C. K. Allen, Law in the Making, 2nd ed. 1930, Chap. VI, sects. iii and v, deals with the relation between the force of statutes and their interpretation.
14 R. v. Morris (1867) L. R. 1 C. C. R. 90, per Byles J. at 95, quoted in Craies, op. cit. 279, where much further authority is cited. See also Maxwell, op. cit. 71.
15 (1875) L. R. 2 C. C. R. 154.
16 At 163.
17 A clear case of absolute liability in an offence for protection of the revenue is R. v. Woodrow (1846) 15 M. & W. 404, per Parke B. at 417. Fitzpatrick v. Kelly (1873) L. R. 8 Q. B. 337 begins the rule of absolute liability on the sale of adulterated food or drink.
18 7 T. R. 509; the statute made it an act of bankruptcy for a trader to depart from his house ‘to the intent or whereby his creditors may be defeated or delayed’, and the Court held that (bankruptcy being then treated as a criminal matter) a man who had departed from his house and thereby delayed his creditors had not committed the offence unless he had that intention.
19 The cases cited by Brett J. in R. v. Prince, op. cit., include nearly all the relevant precedents: his discussion (at p. 162) of R. v. Marsh (1824) 4 D. & R. (K. B.) 261 is open to question. Bowman v. Blyth (1856) 7 E. & B. 26, where Lord Campbell C.J. refused to construe a statute so as to exclude mens rea, could be added to his list.
20 At 170. This is the majority judgment, but it is omitted in Kenny, Cases on Criminal Law.
21 At 173. Denman J. agreed with the last two judgments; he held that Prince had done the very act prohibited, and that it was done ‘unlawfully’ because that means ‘without lawful excuse’.
22 Cundy v. Le Cocq (1884) 13 Q. B. D. 207, per Stephen J. at 210; R. v. Tolson (1889) 23 Q. B. D. 168, per Wills J. at 180 and per Stephen J. at 190; Sherras v. De Rutzen [1895] 1 Q. B. 918, per Wright J. at 921.
23 R. v. Maughan (1934) 24 Cr. App. R. 130, per Avory J. Yet Kenny, Outlines of Criminal Law, 14th ed. 42, suggests that the conviction was upheld because ‘the circumstances actually known to the prisoner made his conduct not merely immoral but also illegal’. See note 20.
24 5 Q. B. D. 259.
25 13 Q. B. D. 207.
26 Bond v. Evans (1888) 21 Q. B. D. 249, per Stephen J. at 257.
27 Brown v. Foot (1892) 66 L. T. (n. s.) 649.
28 [1899] 1 Q. B. 20.
29 Laird v. Dobell [1906] 1 K. B. 131, decided on the authority of Korten v. West Sussex County Council (1903) 72 L. J. K. B. 514.
30 Sale of Food (Weights and Measures) Act, 1926, s. 12, provides an interesting list of statutory defences.
31 Hawkins J. pointed out in Brown v. Foot (1892) 66 L. T. (n.s.) 649 at 652 that in deciding upon the penalty to be imposed the Court may consider any previous misconduct of the defendant, and, where the prohibited act is done by a servant, whether the defendant was a party to the act.
32 87 J. P. 191, in C. C. A. per Lord Hewart C.J.: ‘In the opinion of the Court, whether you look at the terminology of the section or at its manifest purpose, there is an absolute obligation on the undischarged bankrupt to give information.…’
33 [1895] 1 Q. B. 918.
34 Of the cases within the scope of this paper, the best statement of principles of construction is by Atkin, J. in Moussel Bros. Ltd. v. L. & N. W. Ry. [1917]Google Scholar 2 K. B. 836 at 845: the Court must consider ‘the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed’. Cited by Lord Hewart C.J. in Allen v. Whitehead, 94 J. P. 18.
35 Re Mohmoud and Ispahani, [1921] 2 K. B. 716 at 731.
36 99 J. P. 679, following dictum of Kay L.J. in Lowe v. Volp [1896] 1 Q. B. 256 at 259. These and other cases are discussed in L. T. News, Vol. 180, p. 306.
37 The Agricultural Wages (Regulation) Act, 1924, s. 7 (1) is an absolute prohibition (with a defence under s. 7 (6)); no other interpretation was contended for when the section was applied in Hayes v. Curtis (1928) 92 J. P. 119 and Williams v. Smith (1934) 98 J. P. 231. That liability under Friendly Societies Act, 1896, s. 84 (c) is absolute was assumed in Windridge v. Ancient Order of Foresters (1932) 96 J. P. 483; R. v. Larsonneur (1933) 97 J. P. 206, discussed below.
38 23 Q. B. D. 168.
39 15 Cr. App. R. 134.
40 R. v. Thomson (1905) 70 J. P. 6 and R. v. Connatty (1919) 83 J. P. 292 decided that a reasonable belief that the prisoner's first marriage is invalid (void ab initio) is a defence; these are not appeal cases, and are of doubtful authority since R. v. Wheat and Stocks.
41 R. v. Forde [1923] 2 K. B. 400 decided that the statutory defence (that the accused is twenty-three or under and believed on reasonable grounds that the girl was over sixteen) which is available in a charge of carnal knowledge is not a defence to a charge of indecent assault even when the indecent assault consisted of carnal knowledge: ‘a boy who is tempted and induced to have carnal knowledge of a girl who misrepresents herself to be over sixteen, and who appears to be so, has no possible answer if he is charged with indecent assault and not with the full offence.’ In R. v. Forde there was no discussion of mens rea, but this was raised in R. v. Maughan (1934) 24 Cr. App. R. 130, and it was held that the act is absolutely prohibited.
42 Sentences of imprisonment in cases cited were: Larsonneur, three days: Wheat and Stocks, each one day; Maughan, two days.
43 It was decided in 1909 that liability for not illuminating a rear number plate is absolute: Provincial Motor Cab Co. Ltd. v. Dunning [1909] 2 K. B. 599.
44 E.g. s. 112 (3), knowledge of falsity of insurance certificate; Ocean Accident and Guarantee Corp. Ltd. v. Cole (1932) 96 J. P. 191.
45 See note 2, above.
46 Hobbs v. Winchester Corporation [1910] 2 K. B. 46.
47 R. v. Maughan (1934) 24 Cr. App. R. 130 at 132. See also R. v. Wheat and Stocks (1921) 15 Cr. App. R. 134, per Shearman J. at 135; Cotterill v. Penn (1935) 153 L. T. 377, shooting house-pigeons contrary to Larceny Act, 1861, s. 23: ‘The element of mens rea is not required beyond the point that the facts must show an intention on the part of the person accused to do the act forbidden’; here the accused thought he was shooting at a wild bird.
48 Kenny, Outlines of Criminal Law, 14th ed. 45 is most misleading. He says (dealing with absolute prohibitions) that for the actus reus an ‘ordinary mens rea is still necessary. That is to say, the offender must have actually known that he went through the act of selling …’ But Kenny gives no further indication that mens rea is here used in a peculiar sense. The passage is also mixed up with the supposition that liability in absolute statutory prohibitions rests on failure to take effective care to obtain knowledge of the circumstances, a view that is now quite untenable.
49 Law Society v. United Service Bureau, Ltd. (1933) 98 J. P. 33, per Avory J. at 36.
50 97 J. P. 206.
