Mens Rea in Traffic Offences
| Date | 01 October 1981 |
| DOI | 10.1177/0032258X8105400404 |
| Author | Graham Revill |
| Published date | 01 October 1981 |
| Subject Matter | Article |
GRAHAM REVILL
South
Yorkshire Police
MENS
REA IN TRAFFIC
OFFENCES
It has always been a principle
of
the
Common
Law
that
an accused
not only has
committed
awrongfulact,
but
that
he intended
to
do so,
in
other
words it must be
shown
that
he
had
aguilty mind.
"Actus
non
facit
reum
nisi mens sit rea" - an
act
does
not
constitute
guilt
unless the mind i; guilty.
Now whilst these two
constituents
were essential in every
common
law offence, with
the
advent
of
multifarious
statutory
offences, it has
been argued
that
mens rea is
not
always necessary (e.g. selling
adulterated
food,
contrary
to the
Food
and
Drugs
Act 1955).
Certainly, in relation
to
road
traffic offences
there
have been
numerous
convictions where mens rea has been totally
absent
in
the
accused,
and
whilst there may be every justification for the
courts
pursuing
this line, it is respectfully suggested
that
it
can
only be
justified if the
courts
are
constant
in
their
application
of
offences of
strict liability.
Not
only
should
English law be
certain
for
the
benefit
of
the
accused,
but
the
court's
decision
should
be consistent for the
simplicity of
the
prosecution. In this
context,
Appeal
Court
Judges
have been
almost
apologetic
in
extending
sympathy
to
prosecutors
tBalfour Beatty &Co. Ltd. v. Grindley [1974] Crim.
L.R.
120
and
Garrett v. Hooper [1973]
Crim.
L.R. 61)
but
such
an
acknowledgement
helps neither police
nor
road
user.
A
study
of
the
cases
reported
reveals
that
not
an
insubstantial
quantity
of
paradoxes
are
revealed in prosecutions involving the
statutory
phrase
"using, causing
or
permitting
...
"
Using
The
generally accepted view (in relation to
road
traffic legislation) is
that
"using"
is restricted
to
the
driver
and,
vicariously, the employer.
With
two
exceptions discussed later, this
proposition
poses no
difficulties. Crawfordv.Haughton [1972] Crim.
L.R.
788 established
that
there
must
be an
employer
Iemployee relationship between the
driver
and
the
owner,
before the
owner
could
be said to be "using". It
had been decided in James &
Son
Ltd. v.
Smee
[1955] Crim. L.R. 42
and
Green v. Burnett (ibid)
and
followed in
many
other
cases,
that
where this relationship exists
then
the
employer
vicariously is guilty
of
using.
October
/98/
347
In cases where the vehicle is not being driven, it has been held
that
it may be being "used" on a road
(Andrews
v. Kershaw Ltd. [1951] 2
All E.R. 764, Williams v. Junes [1969] R.T.R. 433 and Eden v.
Mitchell [1975] R.T.R. 425). Even where the vehicle is raised clear of
the road surface it will be "used" (Elliott v. Grey [1960] Crim. L.R.
63). A conviction was even upheld where there was only an intention
of using a
motor
vehicle on a
road
(Drysdale v. Harrisun [1972]
Crim. L.R. 573).
The
first exception referred to above, which rather complicates
matters, is where the owner is being carried on (as opposed to
driving) the vehicle. If the
journey
is made for the benefit of the
owner then he will be deemed to "use"
(Cohh
v. Williams [1973]
Crim. L.R. 243 and Boss v. Kingston [1963] Crim. L.R. 126) but
unless the passenger can be said to have some element of
control
or
management overthe vehicle he will not "use" (Brown v. Roberts
and
Another
[1963] Crim. L.R. 435). This leaves unresolved the situation
where the passenger is the senior executive of the driver and directs
him as to route, visits, etc.
Difficulties may also arise where a vehicle is hired (from an agency)
together with a driver. Whilst it is well established
that
amaster may
vicariously use
through
his servant, the initial question is
"who
is the
master of the servant (driver)?" This is particularly relevant, and
often equally difficult to resolve in these "agency" cases.
"Who
pays
the driver?" is usually enough to determine
that
the latter(as opposed
to the hirer) will be the user (Balfour Beatty &Co. Ltd. v. Grindley
(supra). Windle v.
Dunning
[1968] Crim. L.R. 337, and
Mickleborough v.
B.R.S.
(Contracts) Ltd. [1977] Crim. L.R. 568).
However in
Alderton
v.
Richard
Burgan Associates Ltd. [1974]
R.T.R.
422, whilst the agency (the defendants) actually paid this
driver, they satisfactorily established
that
they performed this
function under acontract, on behalf of the hirer
and
they were not
held guilty of the offences
contrary
to the
Transport
Act. A like
decision was reached in A lcock v. G. C. Griston Ltd. [1980] Crim.
L.R. 653, when the
Court
gave its opinion on the wording of
"employer" for the purpose of the
Transport
Act.
Of
course, where a vehicle is hired simply to bedriven by the hirer,
then only the hirer uses (Carmichael &
Sons
(Worcester) Ltd. v.
Cottle [1971] Crim. L.R. 45). Whilst partners are guilty of "using"
where the firm's servant drives the vehicle (Passmour v. Gibbons
[1978] Crim. L.R. 498), a
partner
will
not
be liable simply because it
is being driven by a
co-partner
(Garrett v. Huoper[1978] Crim. L.R.
61).
At least in relation to the offences of "using" the
Courts'
decisions
have been fairly consistent in holding
that
mens rea is
not
essential.
This offence has usually been interpreted as one of absolute liability.
As long ago as
1961
it was decided
that
even where the defect is latent
and
does
not
manifest itself until after the use has commenced, an
offence is committed
(Austin
v. East [1961] Crim. L.R. 119).
348 October 1981
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