Report No. 29
72. Vicarious liability-an aspect of strict liability.-Really speaking, vicarious liability in this context is an aspect of strict liability. As has been observed1, "By the general principles of criminal law, if any matter is made a criminal offence, there is imported into it that there must be something in the nature of mens rea. Therefore, in ordinary cases a corporation cannot be guilty of a criminal offence, nor can a master be liable criminally for an offence committed by his servant. But there are exceptions to this rule in the case of quasi-criminal offences, as they may be termed-acts forbidden by law under a penalty, possibly even under the penalty of imprisonment, at any rate in default of payment of a fine-because the legislature thought it so important to prevent the act being committed that it forbade it absolutely to be done in any case. It seems to me that exactly the same principles apply to a corporation doing such a thing. If it does an act which isabsolutely forbidden it is liable for a penalty.".
1. Pearks, Gunston and Tee Ltd. v. Ward, (1902) 2 KB 1 (11): 1902 AER Reprint 228 (232) (per Channell, J.).
73. Object of the analysis regarding mens rea.-The above analysis of mens rea1, and vicarious criminal liability2, is not intended to imply that all the enactments dealing with the eight categories of the offences which are the subject-matter of this Report3, create offences of "strict liability". Many of them do require mens rea4. The analysis is only intended to bring out the position, that at least in respect of some of them, there has been a modification of mens rea.
The analysis is also intended to demonstrate, that statutes creating new crimes represent the attempts of the Legislature to give effect to the criminal policy of the moment. "The Legislature is therefore primarily concerned to find the best method of dealing with the particular mischief which it is, at that moment, seeking to repress, and its decisions, aimed at a narrow target, are not as a rule reached by any careful regard forgeneral principles of an abstract kind"5.
Further, it will also show, that "as things are, the statutory crimes, as a whole mass, cannot be brought under a simple schemes of general principles of criminal liability"5.
Representing, as they do, efforts of the Legislature to repress anti-social conduct of a particular variety prevalent at the particular moment when the Legislature is confronted with the problem, these enactments, therefore, may not fit in with the Scheme of the Penal Code. A synthesis of the principles on which most of the crimes in the Penal Code are based (on the one hand), and the principles on which some of the crimes dealt with by these special enactments are based (on the other hand), would be difficult to achieve. In so far asmens rea is eliminated or modified, these special offences are "quasi-criminal6" rather than criminal.
1. Paras. 50 to 60, supra.
2. Paras. 66 to 72, supra.
3. Para. 2, supra.
4. See para. 60, supra.
5. Russell on Crime, (1964), Vol. I, p. 65.
6. Cf. Mottsell v. L.N.W. Rly. Co., (1917) 2 KB 836: (1916-17) All ER Rep 1101 (1106), (see judgment of Viscount Reading C.J.).
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