ACTUS non facit reum nisi mens sit rea is viewed as one of the key principles in common law principles of criminal liability.1 This principle is, however, highly abstract. Conversely, this principle does not go beyond claiming that a person’s mind needs to be guilty in order to be criminally liable for his or her conduct. Thus, principles have been developed for mens rea which are more concrete in order to explain, amongst others, the various types and levels of mens rea which need to be proved in order to determine whether a person’s conduct is considered criminal or not.2 However, despite the theoretical requirements of mens rea to establish criminal liability, there are incidences in criminal law which impose strict liability. The following will look into the theoretical ideas behind the mens rea requirement, the current legal framework of strict liability offences in criminal law and the way in which these are justified by the courts in order to answer the set question of whether it is justifiable to hold people responsible for criminal offences, when they did not form mens rea.
Principles are thought to become authoritative in a minimum of two senses. On the one hand, mens rea principles may have moral authority3 in the same way as any other legal principle, by being based on the soundest theory of guilt, which is applicable to the particular crime in question. On the other hand, they may also be historical authority, which is supported, for instance, by the core direction of the development of recent case law.4 One of the leading ideas of the soundest theory of guilt is provided by Andrew Ashworth,5 who claims that the soundest theory of guilt is best provided for in a version of subjectivism.6 Accordingly, Subjectivists claim that the key question of whether there can be criminal liability without mens rea is best answered by rejecting the idea that it is morally justified to enforce criminal liability on people for consequences which went beyond the ones that were initially intended or foreseen. This claim has, however, been vehemently contested.7 The ideas of subjectivism gained in popularity and developed to become the orthodox academic theory of mens rea in the early 20th century, based on the belief that subjectivism had derived its authority from the primary historical use of the theory in the evolution of case law on the subject over many years.8 Apart from this, Jeremy Horder explains in his article “Two histories and four hidden principles of mens rea”, that the proponents of a historical authority of subjectivism have overlooked rival claims of an equally comprehensible set of principles of mens rea which are known as “hidden” principles.9 Accordingly, the most significant hidden principles are referred to as the malice principle and the proportionality principle. The malice principle states that the crux of malicious conduct constitutes conduct which has been wrongfully directed towards a specific interest, such as a personal or a proprietary interest, of a victim. Accordingly, in events that a person has wrongfully directed his or her conduct at a specific interest of another person, this form of malice would justify the criminal liability for the harm caused as a consequence, regardless of whether or not the harm and the degree of the harm suffered by the other person, was previously foreseen as a result. The proportionality principle is interrelated to the malice principle. Here, when a person acts maliciously towards another person, which results in worse harm being caused than previously anticipated, the harm done for which this person will be held criminally liable is proportional to the severity of the intended injury whether or not that harm was anticipated. However, the harm caused cannot be disproportionate in relation to the intended harm, if the criminal liability for this harm should be justified.10
It is clear from the previous, that the malice principle can be classified as being only “permissive” in nature. However, by sanctioning criminal liability in respect of any level of harm caused to a particular interest, derived from the wrongfully directed conduct, the proportionality principle appears to have permissive as well as restrictive elements.11 Both principles permit criminal liability for any harm caused to an interest, which goes beyond what was intended or foreseen. However, the proportionality principle, in contrast to the malice principle, restricts this form of liability to occasions in which the harm caused was not disproportionate to the intended harm. Both these principles have been supported by the labelling principle, which may constitute a further hidden principle in accordance with Horder.12 This latter principle explains that in the event that a certain type of criminal wrong is also mirrored in a morally substantial label, such as for example murder, it may be justified to recognise circumstances when the label is not justified or deserved, despite the harm having been caused. Evidently, the same principle may apply the opposite way around as such that the could be circumstances when one feels that morally a more stigmatising label would be more appropriate to address the same form of harm, in cases in which there is a more serious manifestation of the wrong committed.13 Despite these principles having developed significantly in the English legal principles of culpability, especially the proportionality and the malice principles, it appears that none of the three principles are specifically discussed in the legal textbooks.14 The reason for these general principles being neglected throughout the historic development of criminal law in England and Wales is seen in the idea that the legal evolution follows a movement which is directed towards a so-called ideal subjectivism in relation to criminal liability. According to this idea, a defendant cannot be held guilty for a morally stigmatised crime,15 unless it was his or her intention to cause this forbidden consequence with his or her conduct, or that he or she was at least aware that this consequence could have been a possibility. Accordingly, it is necessary for the subjective mens rea to correspond with the precise nature of the relevant actus reus.16
The issue of missing mens rea elements in criminal liability in practice: The issue of strict liability
This discussion necessitates a critical evaluation of the principle of strict liability and the question whether it violates traditional principles of criminal responsibility. Strict liability offences do not need proof of mens rea in relation to one or more of the actus reus elements.17 These largely constitute statutory offences and generally regulatory offences that apply to issues such as food safety, pollution, public health or road traffic.18 A fundamental criminal law principle is that criminal liability needs both the elements of actus reus as well as mens rea.19 Thus, it is possible to argue that an imposition of criminal liability on a person without proving that he or she has guilty mind, would violate the traditional notion of criminal responsibility.20
It is not essentially evident from looking to the statutory provision if an offence falls under strict liability.21 It has been held that, when a statutory provision is tacit regarding mens rea, that it is presumed that the mens rea elements are necessary.22 Yet, this presumption could be expatriated by the words within the statute or through the subject-matter of the offence in question.23
In Gammon (Hong Kong) Ltd v Attorney General of Hong Kong 198524, guidelines were laid down to determine when an offence is of strict liability. It was held that the mens rea presumption was considerably stronger when the offence was “truly criminal” in nature, instead of merely regulatory, and this could be displaced only by express wording or in the event that it was a necessary implication of a statutory effect.25 In this sense, the statute needs to involve a matter of social concern. Moreover, the imposition of strict liability requires the promotion of the object of the statute.
The key argument in favour of an imposition of strict liability is the fact that it offers a level of protection for the public by promoting care. Accordingly, Wilson claims that a welfarist paradigm of criminal responsibility “… does not require proof of moral wrongdoing … in order to live a life of relative autonomy we require certain basic welfare needs to be ministered to … Only the criminal law can satisfactorily ensure that these collective needs can be properly catered for and this is only possible if the criminal law requires all citizens to satisfy standards of good rather than morally blameless citizenship. The essence of such crimes is to prevent harm rather than to punish a moral wrong”26Furthermore, it is claimed that strict liability has an element of deterrence by encouraging people to follow regulations to protect others from harm.27
A further argument for strict liability is based on the ease of proof, as it is easier for the prosecution to establish criminal liability when the state of mind does not need to be proved.28 Furthermore, it is possible to justify strict liability offences by reference to their sanctions. Due to the fact that these offences only apply to regulatory crimes instead of true offences, they usually only carry a small penalty and, thus, do not threaten the individual’s liberty.29 Nevertheless, attention must be given to arguments against strict liability as well. The most significant argument in this regard is that strict liability offences violate the principle of coincidence, which is a traditional notion in the area of criminal responsibility. Accordingly, people should not be criminally liable for offences, unless a blameworthy state of mind has been proved. According to Lord Bingham in R v G “… it is a statutory principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of “actus non facit reum nisi mens rea sit”.30 Simester and Sullivan commented that “Parliament normally does not, and indeed should not, intend to make criminals of those who are not blameworthy and do not warrant that label”.31
A further argument against strict liability is seen in the fact that it punishes reasonable behaviour in cases when defendants have taken all reasonable steps to avert liability and have no guilty mind. In Smedleys Ltd v Breed 1974,32 a caterpillar was discovered in a can of peas the defendant had sold. The manufacturer was held strictly liable despite this having only occurred once while producing of millions of cans.
The presumption of mens rea has been affirmed by the House of Lords to apply to all statutory offences.33 Accordingly, serious offences are more likely to need evidence of mens rea.
Judicial methods of justification to circumvent violations of the principle of coincidence
Strict liability offences violate the principle of coincidence as they do not need the mens rea element to be proved. Thus, the courts seek to circumvent this principle in certain situations.
One of these circumventions is found in the doctrine of transferred malice. According to this, a defendant’s intention regarding one crime can be transferred to his or her performance of the actus reus in relation to another crime. Hence, in accordance with Latimer 188634, a defendant may have the necessary mens rea for murder by attempting to kill someone, but is unsuccessful and thus does not perform the actus reus in this regard. If he or she accidentally kills another person during this attempt, the mens rea of the attempt to kill the first person will be transferred to the death of the other person.
Another way to circumvent the principle of coincidence is found in Miller 1983.35 Accordingly, if a person creates a dangerous situation without mens rea, he or she is responsible to avert the danger caused. Otherwise it is argued that he or she forms the necessary mens rea, when failing to fulfil the duty of averting the caused danger.
An interesting issue in which the principle of coincidence is circumvented is in voluntary intoxication cases, such as in DPP v Majewski 1977.36 Here, it is argued that the person who voluntarily intoxicates him- or herself has the mens rea for basic intent offences due to recklessness.
In answering the question of whether and to what extent it is justifiable to hold responsible for criminal offences, those who possess no mens rea, it has been discussed that usually mens rea is a crucial element of criminal liability in criminal law. However, the answer to the question has to, nonetheless, be that it is justifiable in certain circumstances. In particular, strict liability offences may be necessary to preserve public wellbeing. Accordingly, these offences may act as deterring elements in society, but also ensure that certain wrong-doing is dealt with punitively when morally necessary. In order to ensure this, the courts have developed principles which circumvent the violation of the principle of coincidence, in order to ensure strict liability is a possibility in law.
1Haughton v. Smith  A.C. 467 at 491-492; Turner, Kenny’s Outlines of Criminal Law, 16th ed., (Cambridge: Cambridge University Press, 1952) 12-13.
2Horder, J., Two histories and four hidden principles of mens rea, L.Q.R. 1997, 113(Jan), 95-119, 95.
3Norrie, A., Crime, Reason and History (Cambridge: Cambridge University Press, 2014) 115.
4J. Gardner, “Criminal Law and the Uses of Theory” (1994) 14 O.J.L.S. 217 at 226.
5Ashworth, A., “Belief, Intent and Criminal Liability”, in J. Eekelaar and J. Bell (eds.), Oxford Essays in Jurisprudence, 3rd series (Oxford: Oxford University Press, 1987).
7J. Gardner, “Rationality and the Rule of Law in Offences Against the Person”  C.L.J. 502; see also J. Horder, “A Critique of the Correspondence Principle in Criminal Law”  Crim.L.R. 759
8Horder, J., Two histories and four hidden principles of mens rea (1997) L.Q.R. 1997, 113(Jan), 95-119, 96.
9A. W. B. Simpson’s review of J. Stuart Anderson’s Lawyers and the Making of English Land Law 1832-1940 (1993) 56 M.L.R., 608-609.
10Tadros, V., The ends of harm: The moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011) 331.
11Horder, J., Two histories and four hidden principles of mens rea (1997) L.Q.R. 1997, 113(Jan), 95-119, 95.
13Ibid. at 97.
14Ibid. at Note 6.
15J. W. C. Turner, “The Mental Element in Crimes at Common Law” in L. Radzinowicz and J. W. C. Turner (eds), The Modern Approach to Criminal Law (London: Macmillan, 1945) 195-261.
16J. Horder, “A Critique of the Correspondence Principle in Criminal Law”  Crim.L.R. 759.
17Ormerod, D. C., Smith, J. C. & Hogan, B., Smith and Hogan’s criminal law (w York, NY: Oxford University Press, 2011) 158.
18Cartwright, P., Consumer protection and the criminal law: law, theory, and policy in the UK (Cambridge: Cambridge University Press, 2001) 223 et seq.
19Haughton v Smith  AC 476.
20Gaines, L. K & Miller, R. L., Criminal justice in action: the core (Belmont, CA : Thomson Wadsworth, 2007) 80 et seq.
21Monaghan, N, Criminal Law (Harlow: Pearson Education Limited, 2014) 25 et seq.
22Lord Reid in Sweet v Parsley  AC 132.
23Sherras v De Rutzen  1 QB 918.
24Gammon (Hong Kong) Ltd v Attorney General of Hong Kong  AC 1
26Wilson, Central Issues in Criminal Theory (Oxford: Hart Publishing, 2002) 72.
27Wells, C., Corporations and criminal responsibility (Oxford [u.a.] : Oxford Univ. Press, 2001) 68 et seq.
28Herring, J., Criminal Law (East Kilbride: Palgrave Macmillan, 2011) 86 et seq.
29Monaghan, N, Criminal Law (Harlow: Pearson Education Limited, 2014) 25 et seq.
30R v G  4 All ER 765.
31Simester and Sullivan, Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 2007) 169.
32Smedleys Ltd v Breed  AC 839.
33See: B (a minor) v DPP  1 AC 248 and K  1 AC 462.
34Latimer  17 QBD 359.
35Miller  2 AC 161.
36DPP v Majewski  AC 443.