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Wednesday, June 2, 2010

-presumption contd..Mens Rea..II

Before the Court will dispense with the necessity for mens rea it has to be satisfied that Parliament so intended. The mere absence of the word " knowingly " is not enough. But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge.[Lord Pearce]

Lord Diplock also stated as follows:

A more helpful exposition of the nature of mens rea in both common law and statutory offences is to be found in the judgment of Sir James Fitzjames Stephen in R. v. Tolson (1889) 23 Q.B.D. 168.

" The full definition of every crime, he said (at page 187) " 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 denned has not been committed ; or again if a crime is  fully defined nothing amounts to that crime which does not satisfy that " definition."

Where the crime consists of doing on act which is prohibited by statute the proposition as to the state of mind of the doer which is contained in the full definition of the crime must be ascertained from the words and subject- matter of the statute. The proposition, as Stephen J. pointed out, may be stated explicitly by the use of such qualifying adverbs as " maliciously " " fraudently ", " negligently " or " knowingly "—expressions which in relation to different kinds of conduct may call for judicial exegesis. And even without such adverbs the words descriptive of the prohibited act may themselves connote the presence of a particular mental element. Thus, where the prohibited conduct consists in permitting a particular thing to be
done the word " permit " connotes at least knowledge or reasonable grounds for suspicion on the part of the permittor that the thing will be done and an unwillingness to use means available to him to prevent it and, to take a recent example, to have in one's " possession " a prohibited substance con- notes some degree of awareness of that which was within the possessor's physical control
 (Warner v. Metropolitan Police Commissioner [1968] 2 All E.R. 356).

Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the Court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference 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 (see Urn Chin Aik v. The Queen [1962] A.C. 160 at page 174).

The numerous decisions in the English courts since R. v. Tolson in which this later inference has been drawn rightly or, as I think, often wrongly are not easy to reconcile with others where the court has failed to draw the inference, nor are they always limited to penal provisions designed to regulate the conduct of persons who choose to participate in a particular activity as distinct from those of general application to the conduct of ordinary citizens in the course of their everyday life. It may well be that had the significance of R. v. Tolson been appreciated here, as it was in the High Court of Australia, our courts, too, would have been less ready to infer an intention of Parliament to create offences for which honest and reasonable mistake was no excuse.[Its importance as a guide to the construction of penal provisions in statutes of general application was recognised by Dixon J. in Maher v. Musson [1934] 52 C.L.R. 104, and by the majority of the High Court of Australia in Thomas v. The King [1957] 59 C.L.R. 279. It is now regularly adopted in Australia as a general principle of construction of statutory provisions of this kind.][Lord Diplock]

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