AN ACT COMMITTED WITHOUT MEN REA BY SHRISHTI MISHRA @LEXCLIQ

An Act Committed without Mens Rea

By Shrishti Mishra

An Act Committed Without Mens Rea Cannot Properly Be Called A Crime. 

Mens rea, a guilty mind or intent; usually one of the essentials of a crime. Mens rea is only one of two components of a crime, the other being the actus reus. The actus reus looks at the physical component of a crime, whereas the mens rea looks at the mental element of a crime. Both components are required for a conviction under the criminal law or are they? Mens rea comes from the Latin phrase ‘guilty mind’, we now know it as the legal term used today to describe the defendant’s mental state. Strict liability offences are the only offences that do not need to have a mens rea to be proven.

Recklessness has caused much confusion as there are two definitions of it, Cunningham recklessness and Caldwell recklessness. Only recently has it been changed to having only one definition and this was done by the House of Lords. Only Cunningham recklessness now exists as Caldwell recklessness has now been discarded. A case to define recklessness is R v Woollen, here Woolin threw his infant against the wall intending to quiet the infant but in fact, recklessly killed the infant as he saw what could happen to the infant but decided to go ahead with his actions anyway.

Negligence is acting in a way that a reasonable person would not. To determine if you have the mens rea of negligence we carry out an objective test. Most crimes that have the mens rea of negligence are only minor crimes.

The main issues that surround strict liability offences are that they are an offence where we do not have to prove the mens rea for that offence. Also, it is only certain offences that are an exception from proving a mens rea. These offences have been made clear from parliament so we know which they are. So strict liability is an offence that has occurred but we do not need a mens rea to prove it was an offence or the defendant guilty.

Therefore this then leads us on the ask the question what is a strict liability offence? A strict liability offence is where a defendant has committed a crime but is not blameworthy, an easy example of this is if a shop assist serves a person for alcohol who are underage. A case we can look at is Harrow London BC v Shah [2000]. In the case, the defendant served a lottery ticket to a person that was underage. Although the defendant did think that the purchaser was over the age of 16 as he appeared to look over this age. Just under 50 per cent of cases are to do with strict liability and are normally minor cases.

A large number of strict liability offences are found in statues, even so there are a few found in common law but not many. Strict liability offences that are statutory are often to do with possessing unlawful weapons and drugs, driving offences such as drink driving and speeding, and to do with the preparation of food. Common law strict liability offences include outraging public decency, public nuisance and criminal defamatory libel. It would be a lot easier for the courts, if parliament were to state what the mens rea, if any, for each of the offences were. Therefore the courts have to include a mens rea in the statute unless it is clear wording that it states in the statute that this offence is a strict liability offence.

With statutory strict liability, the wording on the statute has a massive impact on the decision on whether or not the liability of the offence is strict or not. There are several keywords and phrases within the act that will help aid the judge in concluding whether the offence is a strict liability or not. The interpretation of these words and phrases are the deciding factor on whether or not a mens rea of intention, recklessness or negligence is needed.

Strict liability is a necessary factor for criminal law as it is needed in many offences. We can especially see this in driving offences e.g. speeding or drink driving. A conviction for this would be very hard to achieve as the prosecution would have to prove intent, recklessness or negligence for every case. This would be very time consuming and very costly as every single one of these cases would have to be taken to court.

Strict liability is fair, although some people may see it as being a little controversial, in other types of cases. An example of a previous case that shows this is Smedleys v Breed [1974]. Smedley’s peas were a large scale manufacturer of tinned peas and they were convicted under the Food and Drugs Act [1955] for supplying a tin of peas that inside contained a small pea size caterpillar. This, therefore, means that they are supplying food unfit for human consumption. The House of Lords said that this offence was a strict liability offence and there was no need to show that the company had taken all reasonable precautions to ensure that their products were not contaminated. I feel that strict liability was right to be used here as companies should not be allowed to sell or supply food to the public that is not fit for consumption under any circumstances.

Overall I feel that strict liability is needed in criminal law as there are some offences where we cannot prove a mens rea but it is a crime. Also with strict liability is helps save the courts time and money. It also provides a strong deterrent for people against committing certain offences. Strict liability helps us to ensure that the public is protected from unfit food (Smedleys v Breed [1974]), the countryside and the public are being protected against pollution (Alphacell v Woodward [1972]), people are deterred from possessing unlawful weapons and drugs (R v Marriot [1971]), the public is protected against unsafe buildings and people strive to improve standards so they are not found to be committing a criminal offence.

However, in a lot of cases, the imposition of strict liability can be both unjust and unfair. May problems have arisen from the way strict liability is imposed. Some of these problems are it may not help in raising peoples standards as most people do not realise that they are doing wrong themselves, some of the decisions are unfair and unjust, in some cases, the judges often face difficulty identifying strict liability offences and then it is down to the judge’s decision and attitude to whether it should be classed as a strict liability offence or not, and on most occasions, there is a marked lack of clarity in judgements.

Nonetheless, I believe that strict liability is necessary, although it should be used wisely and that the way they word statues should be done with extreme care. Strict liability offences are a long way from being extinct from our legal system as I personally see no effective way of eradicating them from our criminal law without damaging or affecting the English legal system.

For more serious offences we do need both the actus reus and the mens rea for it to be a crime and only on minor crimes do we find strict liability being used. It is rather controversial but even without mens rea it is still a crime in the English legal system.

 

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