MENS REA AND THE JUDICIAL APPROACH TO “BAD EXCUSES” IN THE CRIMINAL LAW
| Published date | 01 May 1978 |
| Date | 01 May 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00799.x |
| Author | John Sellers |
THE
MODERN
LAW
REVIEW
Volume
41
May
1978
No.
3
MENS REA AND THE JUDICIAL APPROACH
TO
“
BAD
EXCUSES
”
IN
THE CRIMINAL LAW
“
The life blood of the law is not logic but common sense
”
Lord Reid
(Haughton
v.
Smith)
THIS article questions whether the antithesis between
“
logic
”
and
“
common sense
”
is
a
necessary one in explaining the incidence of
criminal liability. It is an antithesis that arises principally from the
question whether the absence of
mens rea
need be an unqualifiable
defence where the offence charged is one defined in terms requiring
mens rea.
Is
the
“
logic
”
which demands acquittal as compelling,
the
“
common sense
”
which justifies conviction as unprincipled as
each may initially appear? The question is prompted by two recent
decisions of the House of Lords:
D.P.P.
v.
Morgan
and
Majewski
v.
D.P.P.3
The former raised the issue whether
a
mistaken belief
in consent to intercourse could afford
a
defence to
a
charge of
rape if the mistake, though genuine, was one which no reasonable
man would have made. The latter raised the issue whether the
absence of intention or foresight caused by the voluntary adminis-
tration of drink and drugs could afford
a
defence to various charges
of a~sault.~ In either case the absence of
mens rea
could be said to
involve some fault on the defendant’s part, either in not assessing
the situation as a reasonable man would have done, or through the
excessive consumption of intoxicants. In
a
sense, therefore, both
cases involved what might be called
“
bad excuses
”
and yet different
results emerged.5
1
r
19751
A.C.
476.500
2
i1976j
A.C.
182:
3
[
19761 2
W.L.R.
623.
4
Majewski was charged with three counts of assault occasioning actual bodily
harm and three counts
of
assault
on
a police officer acting in the execution of his
duty. The intoxication was alleged to have been caused by a combination
of
the
consumption of alcohol and the taking of barbiturates.
5
It
is
a matter of regret that none of the three members of the House of Lords
(i.e.
Lords Hailsham, Cross and Fraser) who formed the majority in
Morgan
were
among the seven Law Lords who gave judgment in
Majewski.
Perhaps it
is
time
to suggest that there ought to
be
a specially constituted committee to hear criminal
appeals to avoid the inconsistencies
of
approach, directly referable to fluctuations in
the membership of the House
of
Lords, which have become manifest in recent years.
Compare
Sweet
v.
Parsley
[1970]
A.C.
132
and
Alphacell
v.
Woodward
[19721
A.C.
824,
and more recently,
Lynch
v.
D.P.P.
[I9751
A.C.
653
and
Abbott
v.
The
245
VOL.
41
(3)
1
246
THE
MODERN
LAW
REVIEW
[Vol.
41
The terminology of
“
excuse
”
in this context might be criticised.
The now traditional analysis of criminal liability distinguishes
between negativing an element of the offence and raising
a
defence.
The former necessitates acquittal because the prosecution fails to
establish all the elements of the offence. The latter amounts to a
confession of the crime coupled with
an
attempt to avoid conviction
by pointing to the existence of further circumstances amounting to
an excuse.‘ Though this analytical distinction can be important,’
the reason for treating the absence of
mens
rea
as an
“
excuse
”
in
some circumstances lies in the intended argument that it need not
always be an unqualifiable answer to certain kinds
of
offence
apparently requiring
mens rea.
The judges do not always
so
regard
it and this is consistent with the judicial approach to pure excuses,
i.e.
defences properly so-called.R This argument involves at least a
partial challenge to the current subjectivist orthodoxy about
mens
rea.
But if the ultimate acceptability of the criminal law depends
on
the extent to which its principles achieve just results, the ultimate
acceptability of attempts to explain those principles depends
on
the extent to which they give a consistent and credible account of
such results. The premise of this article is that it
is
more fruitful
to
try to understand and account for apparent judicial
‘‘
illogicali-
ties
”
than to assume that the present orthodoxy enjoys a monopoly
of wisdom and
so
to dismiss them as anomalies.
The incidence of criminal liability is usually explained as resting
on
ch~ice.~ Only deliberate as opposed to accidental wrong-doing,
therefore, is penalised. The notion
of
choice lies at the root of
“
intention
”
and
“
recklessness,” the minimum content
of
which is
an awareness of the risk
of
the prohibited consequences attendant
Queen
[1976]
3
All E.R. 140. The undoubted value of the increased interest taken
by the Lords in recent years in matters of basic criminal law principles is in danger of
being outweighed by a lack
of
consistent direction. In the case of
Majewski
it was,
however, unfortunate that Lord
Cross
should have retired and Lord Hailsham ceased
to be Lord Chancellor before the first hearings of the case.
6
Automatism and insanity
(i.e.
the
“
knowledge of the nature and quality of his
act
”
limb of the MNaghten Rules) do not At neatly into this analysis. The problem
is that the archetypal instance of automatism (insanity if due to a
‘‘
disease of the
mind
”),
i.e.
a state of unconsciousness, involves, in principle, both a
‘I
voluntary act
”
and a
mens rea
problem. But the cases seem to ignore either the
mens rea
aspect
(e.g.
Quick
[1973] Q.B. 910) or the
“
voluntary act
”
aspect
(e.g. Majewski, supra).
Perhaps the better view is that the defence of involuntary act is properly found as a
separate defence only in non-mens
rea
crimes. Where the offence involves
mens rea
there is only one issue, not two, and that issue must be solved through the policy towards
self-induced incapacities (though
cf.
Haywood
[1971] V.R. 755 and Smith and Hogan
Criminal Law
(3rd ed.), p. 37). At least the decision in
Lynch, supra,
would seem
to have settled any doubts there may have been that evidence of duress is not a
mens rea
Issue.
7
e.g.
in relation to the liability of accessories in situations like
Bourne
(1952)
36
Cr.App.R. 125, where the defence is not inconsistent with the crime’s having been
committed.
8
i.e.
excuses which do not involve negativing an element
of
the offence through
the denial of
mens rea.
The judicial approach to these is examined later in the context
of
the decision in
Morgan.
9
See, for example, H. L. A. Hart’s essays collected in
Punishment and Respon-
sibility.
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