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Wednesday, June 2, 2010

Presumption of Mens Rea: Criminal Statute

The presumption is very aptly summed up in the case of Sweet.v. Parley.Some extarcts of this would suffice the presumption of Mens rea in criminal offences. Quoted below is the extracts of the same.[Blogger]

It has frequently been affirmed and should unhesitatingly be recognized that it is a cardinal principle of our law that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence. It follows from this that there will not be guilt of an offence created by statute unless there is mens rea or unless Parliament has by the statute enacted that guilt may be established in cases where there is no mens rea.

To this effect were the words of Wright J. in Sherras v. De Rutzen [1895] 1 Q.B.D. 918 and in Derbyshire v. Houlston in 1897 (66 L.J. Q.B.569). In the judgment of the Privy Council in Lim Chin Aik v. The Queen [1963] A.C. 160 the principle was amply expressed. At page 172 it was said:
" That proof of the existence of a guilty mind is an essential ingredient of a crime at common law is not at all in doubt."

But as Parliament is supreme it is open to Parliament to legislate in such a way that an offence may be created of which someone may be found guilty though mens rea is lacking. There may be cases in which, as Channell J. said (at page 11) in Pearks Gunston & Tee Ltd. v. Southern Counties Dairies Ltd. [1902] 2 K.B.1—

"the Legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea or not and whether or not he intended to commit a breach of the law ".

Thus in diverse situations and circumstances and for any one of a variety of reasons Parliament may see fit to create offences and make people responsible before criminal courts although there is an absence of mens rea.
In the words of Lord Goddard C.J., in Brend v. Wood [1946] (175 L.T. 306), it was stated that: (at page 307)—

" It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens  rea as a constituent part of a crime, the Court should not find a  man guilty of an offence against the criminal law unless he has a  guilty mind."

The intention of Parliament is expressed in the words of an enactment. The words must be looked at in order to see whether either expressly or by necessary implication they displace the general rule or presumption that mens rea is a necessary prerequisite before guilt of an offence can be found.
Particular words in a statute must be considered in their setting in the statute and having regard to all the provisions of the statute and to its declared or obvious purpose. In 1848 in Attorney-General v. Lockwood 9 M. & W. 378 Alderson B. at page 398 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 that construction leads to a  plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity."

It must be considered, therefore, whether by the words of a penal statute it is either express or implied that there may be a conviction without mens rea or, in other words, whether what is called an absolute offence is created. In Dyke v. Elliott, The " Gauntlet" L.R.4 P.C. App. 184 it was said at page 191—

" No doubt all penal statutes are to be construed strictly, that is to  say, the Court must see that the thing charged as an offence is within  the plain meaning of the words used, and must not strain the words  on any notion that there has been a slip, that there has been a  casus  omissus, that the thing is so clearly within the mischief that it must  have been intended to be included and would have been included if  thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within  the spirit of the enactment. But where the thing is brought within  the words and within the spirit, there a penal enactment is to be  construed, like any other instrument, according to the fair common-  sense meaning of the language used, and the Court is not to find or  make any doubt or ambiguity in the language of a penal statute,  where such doubt or ambiguity would clearly not be found or made  in the same language in any other instrument."

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. There have been many cases in recent periods in which in reference to a variety of different statutory enactments questions have been raised whether absolute offences have been created. Some of these cases illustrate the difficulties that are created if Parliament uses language or phrases as to the meaning of which legitimate differences of opinion can arise. I do not propose to recite or survey these cases because, in my view, the principles which should guide construction are clear and, save to the extent that principles are laid down, the cases merely possess the interest which is yielded by seeing how different questions have, whether correctly or in- correctly, been decided in reference to varying sets of words in various different statutes.[perLord Morris of Borth-y-Gest] 

Sweet v Parsley [1969] UKHL 1 (23 January 1969) 
URL: http://www.bailii.org/uk/cases/UKHL/1969/1.html 
Cite as: [1969] UKHL 1, [1970] AC 132,United Kingdom House of Lords Decisions

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