CRIMINAL LIABILITY Mens Rea

Introduction
The mens rea of an offence is the state of mind required to accompany the actus reus. Depending
on the offence, this may be intention (to do or not to do an act or achieve a result), knowledge (of
relevant circumstances), recklessness (as to a result or circumstances), mere carelessness, or
some combination of these.

Intention

The mens rea of murder is an intention to kill or to cause really serious injury, and this intention
must be proved by the prosecution.

Woolmington v DPP [1935] AC 462, HL

D was charged with murdering his wife; he admitted shooting her but claimed the gun had gone
off accidentally. The House of Lords overruled the trial judge’s direction that it was for D to prove
his lack of intent: it is for the prosecution to prove beyond reasonable doubt every element of both
actus reus and mens rea, subject to a few (almost all statutory) exceptions.

R v Lipman [1969] 3 All ER 410, CA

D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his “trip”, D
imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in
doing so, he actually killed V by cramming eight inches of sheet down her throat. He was acquitted
of murder (because the jury could not be sure that he had intended to kill her) but was convicted of
manslaughter for which no such intention is needed.

R v Warner (1970) 55 Cr App R 93, CA

A shop assistant D saw V’s box of tools standing outside V’s workshop, and took it and hid it
in his own shop; he was charged with theft. D claimed his act was retaliation for V’s lack of
cooperation over access to a shared lane, and that he would have returned the tools after an hour
or so. Quashing D’s conviction, the Court of Appeal said the Chairman of Quarter Sessions had
misdirected the jury, and had not sufficiently stressed the need for the prosecution to show an
intention permanently to deprive.

R v Savage [1991] 4 All ER 698, HL

A woman D became involved in an argument in a pub, and threw a pint of beer over V’s head; the
glass slipped from her hand and caused cuts to V’s wrist. She clearly intended an assault, and
the House of Lords said this intention was enough to meet the mens rea requirements of assault
occasioning actual bodily harm.

Intention is not the same as motive: a person may intend a result without desiring it, if he
deliberately does an act which he knows will lead to that result. We sometimes distinguish
between direct intention (where the defendant’s main purpose is to achieve the forbidden result)
and oblique intention (where the forbidden result is an inevitable side-effect of his achieving some
other result.

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R v Dudley & Stephens (1884) LR 14 QBD 273, CCR

Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from
land. After they had been eight days without food, and six without water, DD decided that their
only chance of survival was to kill the cabin boy and eat him, and this they did. Their motive was
survival, but their direct intention was clearly to kill, and they were convicted of murder.

Re A (Children) [2000] 4 All ER 961, CA

“Siamese twins” Jodie and Mary were joined in such a way that Jodie’s heart and lungs were
providing oxygenated blood for both; medical opinion broadly agreed that both would die in three
to six months - or possibly slightly more - if nothing was done. Doctors sought the leave of the
court to separate the twins, giving Jodie a good chance of a fairly “normal” life but causing the
immediate death of Mary. The twins’ parents opposed the application for religious reasons.In
the Court of Appeal, Brooke LJ said there could be no doubt that in English law, a surgeon who
performed the separation knowing that it would inevitably hasten Mary’s death would be held to
have caused that death and to have done so intentionally, even though that would not have been
his primary motive. So far as the law was concerned, the doctrine of double effect did not apply
here because Mary’s death would not be a side-effect of treatment that was in her best interests
overall. [However, the operation would be lawful as a form of self-defence, since Mary was slowly
killing her sister.]

In cases of doubt, the defendant’s intention (which is a matter of fact to be determined by the jury)
may be inferred from the circumstances.

R v Nedrick [1986] 3 All ER 1, CA

D set fire to a house belonging to a woman against whom he had a grudge, and the woman’s
child died in the fire: the Court of Appeal quashed D’s conviction for murder and substituted
manslaughter. Where the charge is murder, said Lord Lane CJ, and in the rare cases where a
simple direction as to intention is not enough, the jury should be directed that they are not entitled
to infer the necessary intention unless they feel sure that death or serious bodily harm was a
virtual certainty - barring some unforeseen intervention - as a result of the defendant’s actions,
and that the defendant realised such was the case. Where a man realises that it is for all practical
purposes inevitable that his actions will result in death or serious harm, the inference might be
irresistible that he intends that result, however little he might desire or wish it to happen, but the
decision is one for the jury, to be reached on a consideration of all the evidence.

R v Woollin [1998] 4 All ER 103, HL

A man D lost his temper with his three-month-old son and threw the child onto a hard surface,
causing head injuries from which the child died. D was charged with murder and the judge directed
the jury, largely in accordance with the Nedrick guidelines, that they might infer the necessary
intention if they were satisifed that D realised there was “a substantial risk” of serious injury.
Allowing D’s appeal against conviction and substituting a verdict of manslaughter, the House
of Lords said this would enlarge the scope of murder and blur the distinction between that and
manslaughter. The jury, said Lord Steyn, should be directed that they are not entitled to find the
necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty
- barring some unforeseen intervention - as a result of the defendant’s actions, and that the
defendant realised such was the case, but should be reminded that the decision is one for them on
a consideration of all the evidence.

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The doctrine of “transferred malice” applies particularly in respect of offences against the person.
If A shoots at B (intending to kill him) but accidentally hits and kills C instead, then A is guilty of
murder. He has formed the necessary intention (to kill B), and this intention is transferred to the
actual victim C. However, malice cannot be transferred from one type of crime to another: an
intention to kill C’s dog (criminal damage) could not be transferred to C, nor vice versa.

Agnes Gore’s Case (1611) 77 ER 853, KB

A woman put poison into a medicine that had been prescribed for her husband. Her husband
and her father took some of the medicine and became ill, but both recovered. The apothecary,
anxious to show that their illness was not his fault, took a dose of the medicine himself (having first
stirred it well) and died. The judges agreed that the woman’s intention to kill her husband could be
transferred to the apothecary, and she was convicted of murder.

R v Pembliton (1874) LR 2 CCR 119, CCR

A man D was ejected from a pub for misbehaviour, and became involved in a fight. He picked up
a stone and threw it at the group of men he had been fighting, but missed them and broke the
pub window behind them. The jury at Quarter Sessions convicted him of malicious damage, but
the Recorder postponed sentence and stated a case for the opinion of the Court for Crown Cases
Reserved. D’s conviction was quashed: his “malice” in intending to strike another person could not
be transferred to an intention to break the window. (Obiter, he could have been convicted had it
been proved that he was reckless, having foreseen the risk of damage to the window.)

R v Latimer (1886) LR 17 QBD 359, CCR

A soldier D became involved in an argument with another man C in a pub. He took off his belt and
swung it at C, but missed and wounded the landlady V. His conviction for unlawfully wounding V
was upheld by the Court for Crown Cases Reserved.

Where a specific intention is required, a conditional intention (to act if certain circumstances arise)
is generally sufficient.

R v Collins [1972] 2 All ER 1105, CA

D entered a young woman’s bedroom, intending (as he admitted) to have sex with her whether
she consented or not. His conviction for burglary was quashed on other grounds, but the Court of
Appeal were in no doubt that such a conditional intent was sufficient as an intent to rape.

R v Buckingham (1976) 63 Cr App R 159, CA

D was stopped by police and found to be in possession of a jemmy, a knife, spanners, and various
other tools. He admitted under questioning that he was associated with a squatters’ group, but said
he intended to use the jemmy to enter an empty house only if he couldn’t get in any other way.
He was charged under s.3 of the Criminal Damage Act 1971 with having a thing in his possession
intending to use it to damage property. Judge Crocker directed the jury that a conditional intent
would be enough, and the Court of Appeal agreed.

Attorney-General’s Reference (Nos.1 & 2 of 1979) [1979] 3 All ER 143, CA

The Court of Appeal declared that a person who enters a house intending to steal only if he finds

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money (or other valuable items) in the house can be convicted of burglary contrary to s.9(1) of the
Theft Act 1968 even though his intention to steal is only conditional.

Knowledge
Some offences - mostly “state of affairs” crimes - require the defendant to have known certain
facts.

Sweet v Parsley [1969] 1 All ER 347, HL

A school teacher D rented a country cottage to a group of students, visiting only occasionally to
collect the rent. Police found evidence that the students were smoking cannabis at the cottage,
and D was charged with being concerned in the management of premises used for drug taking,
contrary to s.5(b) of the Dangerous Drugs Act 1965. The magistrates found as a fact that she had
no knowledge whatever of any such activity, and on this basis the House of Lords quashed her
conviction.

R v Hudson & Taylor [1971] 2 All ER 244, CA

Two girls DD aged 17 and 19 were witnesses to a serious assault by W. Before W’s trial, friends
of W told the girls they knew their addresses and if they gave evidence against Wright they
would be “cut up”. At the trial the girls saw another friend of W sitting in the public gallery and,
fearful for their safety, said they could not identify the man responsible for the assault. They were
subsequently charged with perjury, giving evidence which they knew to be untrue. [The Court of
Appeal quashed their conviction; although DD were protected during the trial the danger would
have persisted afterwards.]

Searle v Randolph [1972] Crim LR 779, DC

D picked up a cigarette end and put it in his pocket with a number of others, thinking it was an
ordinary tobacco cigarette. In fact it contained a small amount of cannabis, and D was charged
with possessing a controlled drug. Allowing the prosecutor’s appeal and remitting the case to
the justices with a direction to convict, the High Court said it was enough that D knew he had the
cigarette ends and that in fact they contained cannabis.

Albert v Lavin [1981] 1 All ER 628, HL

A police officer X in plain clothes intervened to break up an argument in a bus queue, and was
assaulted by D. Affirming D’s conviction for assaulting a constable, the House of Lords said a
constable (or for that matter, any citizen) has a common law power to prevent a breach of the
peace. X was in fact a constable, and it was immaterial that D did not know this at the time.

R v Hall (1985) 81 Cr App R 260, CA

The Court of Appeal upheld D’s conviction for handling stolen antiques. Boreham J said that only
knowledge or belief that the goods are stolen will do; mere suspicion is not enough. This might
mean that D had been told by the thief that the goods were stolen, or that without being absolutely
certain he had come to that inescapable conclusion, or even that he refused to accept what logic
told him was obvious. But what was not enough was mere suspicion that the goods might or might
not be stolen.

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Recklessness
Many crimes can be committed by recklessness, where the defendant realises that a certain
result may occur (or that a certain state of affairs may exist) but carries on regardless. This is a
subjective test, dependent on which this particular defendant actually foresaw rather than what he
should have foreseen or what a reasonable person might have foreseen.

R v Venna [1975] 3 All ER 788, CA

A man D was being arrested following a scuffle outside a pub; he kicked out wildly and struck a
policeman V, breaking a small bone in his hand. D was convicted of assaulting a constable, and
his conviction was upheld by the Court of Appeal. The offence of common assault, they said,
requires intention to cause the victim to apprehend immediate and unlawful personal violence or
recklessness as to whether such apprehension is caused, or (for battery) intention or recklessness
as to the application of force.

Flack v Hunt (1979) 70 Cr App R 51, DC

A gamekeeper D suspected M was poaching in his woods. Thinking M was some way away,
D fired his shotgun into some nearby bushes to make a noise to frighten M off. In fact, M was
hiding in those bushes and was hit by the shot, and D was charged with malicious wounding. His
conviction was quashed by the High Court because he had not foreseen the risk of harm; on the
contrary, he had considered the matter and decided there was no risk.

Chief Constable of Avon v Shimmen (1986) 84 Cr App R 7, DC

A young man D wanted to impress his friends with his skill at karate, and tried to demonstrate by
doing a kick towards a plate-glass shop window, stopping just short of the window. He misjudged
the kick and broke the window. The justices acquitted on the basis that D was not reckless - he
had recognised the risk but had decided after due consideration that he could prevent its occurring
- but the Divisional Court disagreed. The defendant had recognised the existence of the risk and
had gone ahead, taking manifestly inadequate measures against it.

R v Spratt [1991] 2 All ER 210, CA

D was firing an air pistol from the window of his flat, aiming at a target in the yard below. One of
the shots hit a 7-year-old girl playing in the yard, whom D had not known was there. His conviction
for assault causing actual bodily harm was quashed by the Court of Appeal; Recklessness as
envisaged in Venna was clearly subjective recklessness (that is, that D foresaw the risk but went
ahead regardless), because the judgment in Venna speaks of recklessness and intention as being
often almost indistinguishable.

R v G & R [2003] 4 All ER 765, HL

Boys aged 11 and 12 were convicted of arson, the judge having ruled that recklessness was
based on a risk obvious to a reasonable person rather than to a typical 12-year-old. The House
of Lords said the test is a subjective one: to make no allowance for a defendant’s youth or mental
incapacity would violate the principle that no one should be convicted of a serious offence unless
he acted with mens rea, guilty intent. It is clearly blameworthy to take an obvious and significant
risk of causing injury to another, said Lord Bingham, but it is not clearly blameworthy to do

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something involving a risk of injury to another if (for reasons other than self-induced intoxication)
one genuinely does not perceive the risk.

Negligence
There are only a few criminal offences that can be committed negligently (carelessly) by a
defendant who does not realise the risks involved.

R v Pittwood (1902) 19 TLR 37, Wright J

D was a level crossing keeper who negligently left open the crossing gate. This led to the death
of a carter whose cart was struck by a train, and D was convicted of manslaughter. He had a duty
(arising from his contract of employment) to shut the gate, and although this duty was owed to his
employers rather than to the public at large, it was enough that his negligent failure to act could
lead to conviction.

Road Traffic Act 1988 s.3

If a person drives a motor vehicle on a road without due care and attention, or without reasonable
consideration for other persons using the road, he is guilty of an offence.

Comtemporaneity (coincidence)
The actus reus and the mens rea must coincide in law, and it is not enough (except in a few
special cases) to show that a defendant committed the actus reus of crime X with the mens rea of
crime Y.

R v Taafe [1984] 1 All ER 747, HL

D was caught attempting to smuggle cannabis into the UK; he admitted the attempted smuggling,
but said he had thought it was money. In fact the smuggling of money was not a crime, and the
House of Lords said D’s mistaken belief that it was could not constitute the mens rea necessary
for a conviction on a drugs count.

The actus reus and mens rea must normally coincide in time too, though the courts interpret this
quite broadly.

Meli v R [1954] 1 All ER 373, PC (South Africa)

Thabo Meli and his friends took their victim to a small hut and beat him over the head intending to
kill him. Thinking they had succeeded, they rolled his body over a cliff to make the death appear
accidental. In fact, the victim survived both the beating and the rolling, but died from exposure
shortly afterwards. Meli and the others were convicted of murder. The Privy Council, dismissing
their appeal, said that where the actus reus consists of a series of linked acts, it is enough that
the mens rea existed at some time during that series, even if not necessarily at the time of the
particular act which caused the death.

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Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, DC

D was told by PC Morris to park his car at a particular place, and in doing so he accidentally drove
onto the officer’s foot. When Morris asked him to remove the car, D refused to do so for some
time but eventually complied. He was convicted of assaulting a constable, and his appeal was
dismissed. The Divisional Court said the actus reus was a continuing act and coincided at some
point with the requisite mens rea.

R v Jakeman (1982) 76 Cr App R 223, CA

A woman D was charged with importing two suitcases of cannabis from Ghana; she had left her
luggage at Paris when she changed planes, but the French authorities assumed it had been
misrouted and forwarded it to England. Affirming her conviction, the Court of Appeal said she
had had the guilty mind when she began her journey, and had subsequently performed the act
by means of innocent agents (the airline staff and French customs officers). Her claim to have
repented during the flight, even backed up by her failure to claim the baggage, could not be a
defence.

R v Le Brun [1991] 4 All ER 673, CA

D hit his wife on the chin (without meaning any serious harm) in an argument outside their house.
When she fell unconscious he dragged her away to avoid detection, and in so doing caused
her head to hit the pavement sufficiently hard to fracture her skull, as a result of which she died.
The Court of Appeal upheld a verdict of manslaughter: although the original unlawful act with its
accompanying mens rea was not the direct cause of death, the unlawful act and the act causing
death were part of “the same sequence of events”, and that was sufficient.

Strict Liability

Crimes of strict liability do not require proof of mens rea in relation to at least some part of the
actus reus. There are around ten thousand offences under English law, and about half of these
are offences of strict liability. Most strict liability offences are “quasi-crimes” - technical offences
carrying only a modest penalty (usually a fine) and little or no social stigma, and nearly all are
statutory.

The idea of strict liability is generally thought to date back to the mid-19th century.

R v Woodrow (1846) 153 ER 907, Exchequer

A man was found guilty of possessing adulterated tobacco, contrary to the Adulteration Acts. It was
accepted that he did not know the tobacco was adulterated, but the statute did not use the word
“knowingly” and the court said it was unnecessary for the prosecution to prove such knowledge.
Such a task would usually be very difficult, and the public inconvenience (and loss to the revenue)
if such a requirement were imposed outweighed the injustice of convicting some innocent
defendants.

Many strict liability offences regulatory offences directed at businesses, whose owners may be
prosecuted if they do not take adequate steps to ensure the business operates properly. Health
and Safety offences in particular are often of this kind: s.10 of the Consumer Protection Act 1987,
for example, makes it an offence to supply consumer goods which fail to comply with the general

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safety requirement, and the fact that the supplier does not know of the defect is no defence.

Cundy v LeCocq (1884) LR 13 QBD 207, DC

A licensee A was convicted of selling liquor to a drunk contrary to s.13 of the Licensing Act 1872,
even though he could not reasonably have known that the person was in that condition. Stephen
J said the words of the statute amounted to an absolute prohibition: the object of the Act was
to prevent the sale of intoxicating liquor to drunks and it was perfectly natural to throw onto the
publican the responsibility of determining whether the person supplied came within that category.

Alphacell v Woodward [1972] 2 All ER 475, HL

A company AA were convicted under s.2(1)(a) of the Rivers (Prevention of Pollution) Act 1951 of
polluting a river. AA were unaware causing this pollution, and there was no evidence of negligence
on their part, but their conviction was upheld by the House of Lords. Where a penal statute is
capable of two or more meanings. said Lord Salmon, the meaning most favourable to the subject
should be adopted, but this did not mean that the word “knowingly” or “negligently” should be
implied before “causes”. It is of the utmost importance that rivers should not be polluted, and if no
conviction could be secured unless the prosecution could discharge the often impossible burden
of proving the pollution had been caused intentionally or negligently, a great deal of pollution
would go unpunished and undeterred, and rivers would become even filthier.

Smedleys v Breed [1974] 2 All ER 21, HL

A caterpillar was found in a tin of peas, although the manufacturers DD had taken all reasonable
care to ensure their products were not contaminated in this way and had had only four complaints
from about 3½ million tins sold the previous year. They were charged with selling food not of the
quality required, contrary to the Food and Drugs Act 1955, and the House of Lords upheld their
conviction. The Act provided a defence for an incident that was unavoidable, but that applied only
to something that could not have been prevented even if every single person in the production
process had done everything humanly possible.

Pharmaceutical Society v Storkwain [1986] 2 All ER 635, HL

The Medicines Act 1968 requires chemists to supply certain medicines only in accordance with
a prescription issued by a doctor. A customer went into a branch of Storkwain Chemists with a
forged prescription: the chemist in charge had no reason to know the prescription was forged,
and issued the medicine shown. He was charged with an offence under the Act, and the House
of Lords agreed that the magistrates should be directed to convict. The Act made it an offence
to supply such drugs except on a valid prescription, and although no evidence was presented of
DD’s dishonesty or negligence in accepting the forgery, the offence was one of strict liability.

Harrow LBC v Shah [1999] 3 All ER 302, DC

A shopkeeper was prosecuted for selling a lottery ticket to a person under 16, but the magistrates
dismissed the charge on finding that the sales assistant had honestly and reasonably believed the
boy to be 16. Allowing the prosecutor’s appeal, the High Court said this was not a “truly criminal”
matter but it was a matter of social concern, and the imposition of strict liability would make
shopkeepers more vigilant in ensuring that young people were not encouraged to gamble.

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Many traffic offences are also offences of strict liability, because of the virtual impossibility of
proving the necessary knowledge. The onus is cast on the defendant (the owner or driver of the
vehicle) to ensure that the vehicle is maintained to a proper standard and driven with appropriate
care.

For example, s.5 of the Road Traffic Act 1988 makes it an offence for any person to drive a motor
vehicle on a public road while his breath alcohol level exceeds the prescribed limit: D is equally
guilty whether or not he knows he is over the limit.

Again, Reg.27(1)(g) of the Road Vehicles (Construction and Use) Regulations 1986, made under
the authority of the Road Traffic Act 1988, makes it an offence to use a motor vehicle or trailer
on a road if any tyre on the vehicle does not have the appropriate depth of tread. A breach of this
regulation is a strict liability offence, and it is immaterial whether or not the driver is aware of the
tyre’s condition.

Taylor v Kenyon [1952] 2 All ER 726, DC

A man D was charged with a motoring offence and pled guilty by letter; in his absence, he was
fined and disqualified from driving. The court clerk wrote to D to inform him; D paid the fine
demanded but did not notice the second letter telling him he had been disqualified. Six weeks later
D was stopped while driving and was subsequently charged with driving while disqualified;. The
magistrates dismissed the charge but the prosecutor’s appeal was allowed: the court said this was
an offence of strict liability.

There are comparatively few strict liability offences that affect ordinary people in their private lives,
and very few serious ones, but such offences do exist.

Sexual Offences Act 2003 s.5(1)

A person commits an offence [of rape] if he intentionally penetrates the vagina, anus or mouth of
another person with his penis and the other person is under 13.

R v G [2008] UKHL 37

A 15-year-old boy pled guilty (on legal advice) to the rape of a 12-year-old girl, who had in fact
consented to sex and who had told him she was 15. He then appealed against his conviction,
arguing inter alia that it was unfair for an offence as serious as this to be one of strict liability.
Dismissing his appeal, the House of Lords said the defendant intended to have sex with the girl,
and there was nothing unfair in putting the onus on him to ensure that the girl was old enough to
give legally valid consent.

Sexual Offences Act 2003 s.9(1)

A person ... (A) commits an offence if he intentionally touches another person (B), the touching is
sexual, and ... B is under 13.

Strict liability is not the same as absolute liability, and some defences may be available in some
cases. Duress does seem to be allowable in some circumstances, because the voluntariness of
the act is normally regarded as part of the actus reus, but insanity (which relates to the mens rea)
is not.

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Sexual Offences Act 2003 s.9(1)

A person ... (A) commits an offence if he intentionally touches another person (B), the touching is
sexual, and ... B is under 16 and A does not reasonably believe that B is 16 or over ...

This is a strict liability offence - the prosecution does not have to prove A’s knowledge of B’s age
- but the wording of the Act expressly provides a defence where the defendant (A) honestly and
reasonably believed (B) to be over 16. There are similar defences in some other strict liability
situations.

Licensing Act 2003 s.146

(1) A person commits an offence if he sells alcohol to an individual aged under 18.

(4) Where a person is charged with an offence under this section by reason of his own conduct
it is a defence that he believed that the individual was aged 18 or over, and either (i) he had
taken all reasonable steps to establish the individual’s age, or (ii) nobody could reasonably have
suspected from the individual’s appearance that he was aged under 18.

(6) Where a person (“the accused”) is charged with an offence under this section by reason of the
act or default of some other person, it is a defence that the accused exercised all due diligence to
avoid committing it.

National Rivers Authority v Yorkshire Water [1995] 1 All ER 225, HL

DD owned and operated a sewage treatment plant which worked largely by gravity. An unknown
person X, contrary to DD’s instructions, discharged a small quantity of iso-octanal into the
sewers; this passed through the treatment works and polluted the river. DD were convicted by the
magistrates of causing polluting matter to enter controlled waters, contrary to s.107(1)(a) of the
Water Act 1989. The conviction was quashed by the Crown Court, restored by the High Court,
and quashed by the House of Lords: s.108(7) expressly provides a defence where DD could not
reasonably have been expected to prevent the discharge by a third party.

DPP v Bell [1992] RTR 335, DC

D became involved in a serious argument and, fearing serious personal injury, ran to his car
(pursued by several others) and drove away. He was subsequently found to be over the blood-
alcohol limit and was prosecuted; his conviction by magistrates was overturned on appeal to the
Crown Court, and the High Court upheld the latter. It was significant, they said, that D had driven
“only a short way” (the actual distance not being reported), since his defence would have ceased
to exist had he continued to drive after the duress of circumstances had evaporated.

The higher courts have tried to give some guidance as to when statutes should be construed as
imposing strict liability, and when mens rea is to be required.

Sweet v Parsley [1969] 1 All ER 347, HL

A school teacher D rented a country cottage to a group of students, visiting only occasionally to
collect the rent. Police found evidence that the students were smoking cannabis at the cottage,
and D was charged with being concerned in the management of premises used for drug taking,

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contrary to s.5(b) of the Dangerous Drugs Act 1965. The magistrates found as a fact that she had
no knowledge whatever of any such activity but convicted nevertheless, and her appeal to the
High Court was dismissed, but the House of Lords quashed the conviction. 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,
said Lord Diplock, the court may feel driven to infer an intention of Parliament to impose by penal
sanctions a higher duty of care by those who choose to participate and to place upon them an
obligation to take whatever measures may be necessary to prevent the prohibited act. But when
one comes to acts of a truly criminal character, said Lord Reid, the situation is very different,
and where the statute is silent as to mens rea there is a presumption based on many centuries’
common law practice that to give effect to Parliament’s wishes the courts should read in words
appropriate to require mens rea unless the relevant circumstances clearly indicate otherwise.

R v Howells [1977] 3 All ER 417, CA

D was charged with having in his possession a firearm without a firearms certificate, contrary to
s.1 of the Firearms Act 1968. His defence was an honest belief that the gun in question was an
antique and so exempt from certification, but the Court of Appeal said liability under this section
was strict. The wording of the Act pointed that way, but more significant was the danger of allowing
people to possess lethal weapons and the conclusion that Parliament would have intended to
prohibit them absolutely. To allow an “honest belief” defence here would defeat the clear intention
of the statute; the fact that such a defence was expressly allowed elsewhere in the Act pointed
further to its omission from this section having been deliberate.

Gammon v Attorney-General of Hong Kong [1984] 2 All ER 503

The Privy Council said there is a presumption of law that mens rea is required before a person
is guilty of a criminal offence, and this presumption is particularly strong where the offence is
“truly criminal” in character. The presumption applies to statutory offences as well as to common
law offences, and can be displaced only if that is clearly or by necessary implication the effect of
the statute. The only situation in which the presumption can be displaced is where the statute is
concerned with public safety or some other issue of social concern, and even where a statute is
concerned with such an issue, the presumption of mens rea stands unless it can also be shown
that the creation of strict liability would be effective to promote the objects of the statute by
encouraging greater vigilance to prevent the commission of the prohibited act.

© The Law Bank 11