Position of Mens Rea in England and India PDF

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Mens Rea – Silent Mens Rea (Position in England and India) Mens Rea is known as the mental process that such a person is said to have a morally blameworthy state of mind. Mens Rea is the “fault element” of a crime that attempts to ensure only those who are morally culpable will be punished. Indeed, the idea of ‘no crime without a guilty mind’ is one of the foundations of the common law legal system and is a necessary part of a majority of crimes. There are two types of mens rea, namely express mens rea and silent mens rea. Express mens rea can be further classified into defined mens rea, which can be identified by referring to the definition under the statute and undefined mens rea, which can be identified by referring to case law, books or English law. As for silent mens rea which is not expressly mentioned in the provision, usually two approaches will be taken, either mens rea still need to be proven or it is straight away regarded as strict/absolute liability offence. India and England have a different approach towards this. In India, since there are provisions that expressly state that the requirement of mens rea in its definition, then if the provision is silent it must be the intention of legislature. The court will presume it is the intention of Parliament to leave the requirement of mens rea from the provision. Therefore, it is a strict liability offence. In the other word, if the provision is silent on the requirement of mens rea, it must be the intention of the legislature that it is a presumption of strict liability offence. Under this situation, there is no need to prove mens rea because any offence governed under such provision is taken automatically as a strict liability offence. The presumption can be rebutted by ascertaining the legislature’s intention and object of the statute; or referring to the wording of the provision and its statutory context. However, this does not prevent the accused from applying the defences under chapter IV especially for mistake and accident, which is known as ‘via the back door approach’. In this approach, one theoretically issue will exist, explaining that if we follow this ‘via the back door’ approach, it seems that that there is no strict liability offences in India as we are indirectly introducing mens rea to the definition of the offence. Nonetheless, the reason for the absolute liability offences still remain is because “via the back door” approach can’t be applied in strict liability as mens rea absolutely not required.

In the case of Perera v Munaweera, the accused was charged with having sold bread underweight and in excess of the maximum control price contrary to S.8(1) of the Control Prices Act 1950. The court held that “Where the definition of an offence contains words of absolute and unqualified prohibition, the prosecution need only establish beyond reasonable doubt the commission of the prohibited act, and is not required in addition to establish that the accused acted with any specific intention or knowledge.” Whilst in England, the general rule or legal maxim is applied. The court will presume that there is a requirement of mens rea and no need to prove it, only if the presumption is rebutted. However, unlike India, once the presumption is rebutted, it is consider as strict/absolute liability offence, and the accused is not entitled to raise the defense relating to mens rea such as mistake and accident. Hence, the strict/absolute liability is clearly exist in England. In the case of Sweet v. Parsley, the court provided that whenever a section is silent as to mens rea, there is a presumption that in order to give effect to the will of parliament, we must read in word appropriate to require mens rea. Besides, in the case of Sherras v. De Rutzen, the court mentioned that “There is a presumption that mens rea, or evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.” The modern approach in England can be clearly visualized in the case of Gammon (Hong Kong) LTD v.AG for Hong Kong. The court mentioned that: “First, there is a presumption of law that mens rea is a requirement; the presumption is strong if the offence is ‘truly criminal’ in character; the presumption can only be rebutted by necessary implication the effect of the statute; the only situation it can be displaced is when it concerned an issue of social concern and public safety; and it can be shown that the creation of strict liability will be effective to promote the object of the statute. In the case of Blake v. DPP, the accused was charged with using wireless telegraphy equipment without a licence. He claimed that he has no knowledge that he was transmitting. The court found that there is presumption that it is a ‘true crime’ since the punishment is imprisonment. However, the presumption was rebutted since it involved issues of serious social concern in the interest of public safety....