REBBUTING THE PRESUMPTION OF MENS REA

'Actus non facit reum, nisi mens sit rea '

- 'An act does not make a person legally liable unless the mind is legally blameworthy'.

'Mens rea' or 'blameworthy mind' as one of the essential components of criminal liability is very
difficult to define precisely in as much as 'blameworthy ' can have a different meaning dependant
on the offence. The courts have developed various approaches to clarify the meaning and
definition of these required elements in the common law as well as the defences that mitigate or
negative mens rea to varying degrees. An act can be completed but no liability falls on the
defendant if he can disprove mens rea. Liability may be mitigated partially or completely either
by a recognised defence or reasonable mistake. However, there are circumstances where mens
rea is found or not required and the defendant is blameless, but liability still conferred.

The maxim 'actus non facit reum, nisi mens sit rea' forms the basis for defining the 2 elements
that must be proved before a person can be convicted of a crime, the actus reus or 'guilty act' and
mens rea or 'blameworthy mind'. In B v D.P.P.(2000), the appeal court held that "Mens rea was
an essential element of every criminal offence unless Parliament expressly or by necessary
implication provided to the contrary."

Definition of 'blameworthy' is quite wide and is subject to convention and interpretational

precedent as laid down in case law by the judiciary. The burden of proof for the mens rea is on
the prosecution. The prosecution must prove the defendant had mens rea at the time of the
commission of the offence in order to secure a conviction. However, deciding the existence of
defendant's mens rea is a matter for the jury.

If the prosecution have to prove the defendant's knowledge beyond all reasonable doubt, it may
be easy for the guilty to escape. But it would be very much harder for the guilty to escape if the
burden of disproving mens rea or knowledge is thrown on the defendant.

Actus reus and mens rea must coincide for criminal liability. The courts will construe acts in 2
ways; 'continuing acts' and 'one transaction' to satisfy the mens rea for an offence. In Fagan v.
Metropolitan Police Commissioner (1969) , the defendant accidentally drove his car over a
policeman's foot, but refused to immediately remove the car. It was held that the actus reus was a
continuing act and that refusal to move the car was sufficient as subsequent mens rea. Sometimes
the courts consider a series of acts as one transaction and liability occurs if there is actus reus and
mens rea at some point during the transaction. In Thabo Meli v. R (1954) , the Privy Council
held that this was a series of planned acts. The mens rea and actus reus had coincided during the
series and therefore all the defendants were guilty of murder.

It is not easy to discern the nature of criminal guilt from English common law. Although the
maxim appears to be quite straightforward, on a practical level it would appear that the
discernment of mens rea is far from clear. The definitions and jury guidelines for mens rea on
intention, recklessness and negligence have in parts, evolved greatly in the last 25 years, which
reflects judicial dissention and necessity, in recognising novel circumstances such as terrorism,
unique medical cases and development of knowledge concerning mental illness (Thornton). The
objective standard by which mens rea is judged can give rise to injustice which is contrary to the
maxim. The recognised defences and the concept of mistake provide a partial fail-safe
mechanism to exculpate the blameless defendant but as these are laid down in the common law,
they too are subject to change as circumstances dictate.
REBBUTING THE PRESUMPTION OF MENS REA

The court will use an approach of strict liability crime where a crime does not require any proof
of mens rea. Usually, this approach is primarily regulatory offences expected at business in
relation to health and safety. For instance, speeding and driving without insurance. Nevertheless,
the use of strict liability in criminal offence is notorious as it would make a person liable where
they are not at fault or they might have taken all reasonable care to ensure compliance of the law.
As strict liability has the potential to create injustice and operate harshly there is a general
presumption that mens rea is required to impose criminal liability.

Commonly, the presumption of mens rea is that having an evil intention, or knowledge of the
wrongfulness where it is a crucial element in every offence. However, the presumption is
rebuttable on a few grounds which are, the crime is regulatory as opposed to a true crime, the
crime is one of the social concern, the wording of Act indicate strict liability and the offence
carries a small penalty.

Firstly, where the crime is regulatory as opposed to a true crime, the presumption of mens rea
will give way to strict liability. Equally, when there is a true crime, the presumption of mens rea
prevails. In regulatory offences where it include healthy and safety regulation, It was thought that
there existed a rule on age related offences, thus,  that strict liability applied in relation to the age
and that it was no defense if the person held a reasonable belief that the person was over the
specified age.

Secondly, the crime is one of the social concerns. This is based on the assumption that strict
liability imposes higher standards of care and provides greater levels of protection to the public.
For example, in a regulatory offence that in relation to health and safety including driving
offences and some other that will affect social or public health and safety.

Thirdly, the wording in the Act itself indicated strict liability as the statute is silent as to the
requirement the general presumption, however, the courts may look at other offences created
under the same Act. If the other offences expressly require mens rea, the courts may well take
the view that the omission to refer to such a requirement was deliberate and that Parliament
intended to create an offence of strict liability.
Lastly, the offence carry small penalty where it prove that it is not a true crime therefore giving a
small penalty and strict liability applied. For example, the offence of causing death without
having a license and causing death be recklessly driving considered as one of the strict liability
as the maximum penalty imposed was 14 years imprisonment and fine.
 LAW 505 : CRIMINAL LAW I

LECTURER’S NAME : Ahmad Shukree Mohd Salleh

CLASS : LWB03B
MEMBERS :
NAME STUDENT ID
Sheron Feddrin 2016331845
Nurul Iman Zubaidah Bt Zulkarnain 2016331839