Mens Rea and the Enforcement of Statutes
| Published date | 01 March 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01121.x |
| Date | 01 March 1966 |
206
TEE
MODERN
LAW REVIEW
VOL.
20
It
appears that the statutory definition of larceny,
as
judicially
“
A person steals who fraudulently. and without
a
claim
of
right made
in
good faith (the proof whereof shall lie
on
him)
takes and carries away anything capable
of
being stolen with
intent (which may be assumed from circumstances) at thc time
of
the taking permanently to deprive the owner (whose
existence and lack of consent may be assumed from
circumstances
if
not proved) thereof.”
Although there is everything to be said for not permitting guilty
men to escape
for
imperfections
in
the charge
or
in the evidence
which are merely technical, is there not
a
serious danger to civil
liberties involved in these permissible assumptions
?
Take the case
of a person who believes in some unusual and unpopular political
creed.
His
organisation prints handbills which he wishes to put
through letter-boxes anonymously late at night. He is stopped
by
a
policeman and asked to account for his possession of the handbills.
He refuses to do
so.
He
declines
to
say anything except that he believes
in
the cause
and
that he ngrees they do not belong
to
him. The owner of them is not
him, and is unknown. How can he escape
a
conviction under
Noon
v.
Smith?
His
expression
of
his politicnl views might thus be made
more haznrdous by his conviction
for
larceny although the views
and their mode of expression might be in
all
respects lawful. Take
another instance.
A
man is found in the street with equipment used
in homosexunl practices. He is asked whose
it
is and he declines
to say. He will not reveal his associates either.
Can
he not be
oppressed by
a
larceny charge because there is insufficient evidence
for
a
charge
of
gross
indecency?
It
cannot be desirable that the police should wield such
a
discre-
tion
as
a
result of the presumption in circumstances which are
so
obviously inappropriate to larceny.
It
was stated in
Hale’s
Pleas
of
the
Crown
that a person cannot be convicted of stealing goods
of an unknown person unless due proof was made that
a
felony waa
committed
in
respect of these goods.
It
is suggested that the
proposition is sound, that the presumption is not
“
due proof
’’
and that a return
to
strict proof is needed.
interpreted and applied,
is
now:
He is charged with larceny of them.
H.
w.
WILgmBON.
M~NB
REA
AND
THE
ENFORCEMENT
OF STATUTEE
THE
enforcement of public welfare and control legislation in the
courts continues to present difnculties. Although
it
is
generally
accepted that
in
many situations the establishment of the defen-
dant’s state of mind is impossible, the courts sometimes show
a
lack of certainty when confronted with apparently absolute offences.
0
2
Hale
P.C.
667.
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