Law Weblog

R v Kumar (2004) CA: Court of Appeal on Strict Liability

Sunday 19 December 2004 at 10:09 pm | In News | Post Comment

[Strict liability offences – statutory offences require mens rea unless specifically excluded or if it is “compellingly clear”, “truly necessary” and free from ambiguity to do so]
D, a doctor had consensual sex with a boy aged 14 believing him to be over 16, they had met in an over 18’s club.

Held: In B (A Minor) v DPP HL Lord Nicholls said: “The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.”
Sweet v Parsley (1969) : “…there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blame-worthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea …it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.”
In R v K the same issue arose and all the speeches in endorse the principle of the presumption that a mental element is required in a statutory offence unless expressly excluded or the contrary is shown by necessary implication. From these two decisions we conclude firstly that in all statutory offences whenever a section is silent as to mens rea there is a presumption that the mental element is an essential ingredient of the offence. Secondly, in the absence of express statutory provision the presumption of the mental element can only be excluded if the necessary implication is “compellingly clear”, “truly necessary” and free from ambiguity. Further, the presumption must not involve an internal inconsistency.

Not Guilty
Comment: D would now be charged under section 9 of the Sexual Offences Act 2003, on the admitted facts he might then have had a complete defence to the charge provided by section 9(1)(C)(i).