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Report No. 47

Chapter 7

Desirability of Amendments-substantive Points Common to all The Acts Considered

7.1. General matters common to all Acts considered.-

Before dealing with changes needed in each individual Act, we should deal with certain matters of the general nature applicable to all or most of the Acts.

7.2. Mens rea.- Of such questions, the most important is that of mens rea.

7.3. Mens rea and burden of proof.-

Traditional criminal jurisprudence requires that before criminal liability be imposed, a certain mental element of the offender must be proved. The most familiar name used to denote this mental element in crime is 'mens rea'. Some vagueness exists as to the exact range and ambit of this expression. But the general concept is fairly well established, namely, that a person ought not to be punished for an act in the absence of a culpable state of mind with reference to the act.

7.4. The validity of the general principle of mens rea is not disputed today. Illustrations could be drawn from some of the criminal codes of other countries. Thus, the Russian Penal Code enacts.1

"3. Basis of criminal responsibility.-Only a person guilty of committing a crime, that is, who intentionally or negligently commits a socially dangerous act provided for by law, shall be subject to criminal responsibility and punishment.

Criminal punishment shall be applied only by judgement of a court."

1. Article 3, R.S.F.S.R. Penal Code.

7.5. It is also well-established that the burden of proving the required mental element is on the prosecution which, in accordance with the general rule applicable to criminal proceedings, is required to prove its case beyond reasonable doubt.

7.6. Necessities of the time have, however, witnessed the emergence of a category of offences-sometimes called 'public welfare offences'-where the element of mens rea has undergone modification or even suffered elimination. A controversy is going on amongst academic writers as to how far such a departure is justified even in the case of public welfare offences; and judicial disagreement on the question how far a particular statutory offence requires mens rea to be read into legislative language silent on the point, has enriched the law reports during recent years.

7.7. We have already drawn attention to the need for dealing with economic offences1 in a manner different from traditional crimes.

1. Chapter 3, supra.

7.8. Another aspect of practical importance should also be emphasised. Although the actual facts of a particular case relating to an economic offence may appear to possess only a minor significance, there is, behind the curtain, a ring of associates engaged in committing a number of crimes. These crimes are difficult to prove before the court in conformity with the traditional standard of proof. The moral conviction of responsible enforcement officers is difficult to be translated into legal conviction of the minds of the judicial agencies operating in the traditional manner. The mental element undoubtedly exists. But it is difficult to prove it. The act that has caused damage has been unearthed; the mind behind it remains unproved. Such a situation, we think, is productive of grave harm.

7.9. It is for these reasons, that we have thought of a solution which, while preserving the requirement of mens rea a requirement which we would be loth to dispense with1 in any act carrying serious punishment-throws the burden of proof on the accused. Petty cases causing minor injuries are not worth the trouble of creating a special rule as to burden of proof. But acts causing substantial damage justify a departure, to the extent indicated above.

1. See also para. 4.15, supra.

7.10. In formulating the test as to constitutional validity of presumptions in criminal cases, the Supreme Court of the U.S.A. has considered, as against the magnitude of the disadvantage created by the operation of a presumption, the comparative convenience test. The test was first formulated by Justice Cardozo in a dictum in Morrison v. California, (1933) 291 US 82 (88-91).when he wrote:

"The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the State in criminal prosecutions and cast on the defendant. The limits are in substance these, that the State shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance,., or if this at time be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, section 79.

The list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula one can do no more than adumbrate them; sharper definition must await the specific case as it arises."

7.11. The considerations which have weighed with us are not dissimilar. Stringent provisions are necessary to deal effectively with economic offences at the present time. The same considerations that have justified the imposition of restrictions on the normal business activities, furnish the justification for measures aimed at proper enforcement of those restrictions. The situation is one of a semi-crisis, a general threat to national wealth and welfare. The balance of convenience therefore makes it imperative to adopt this approach.

In this context, a recent English provision is of interest1:-

"(2) Subject to sub-section (3) below, in any proceedings for an offence to which this section applied it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged."

The effect of this provision is that, in the specified offence, the prosecution are required to prove that the accused committed the actus reus of the particular offence. It is then for the accused to prove that he committed the actus reus 'innocently'. This method of introducing an element of 'fault' into drugs offences was discussed in the House of Lords in two cases.2-3

1. Section 28(2), Misuse of Drugs Act, 1971, (c. 38).

2. Warner v. Metropolitan Police Commissioner, (1969) 2 AC 256.

3. Sweet v. Parsley, 1970 AC 132: (1969) 1 All ER 347.

7.12. In conformity with the aforesaid test, we shall suggest suitable amendments to the relevant Acts wherever appropriate1. From this amendment, however, we propose to exclude the taxation laws, mainly for two reasons, first that they are far too complex and complicated, and second that they are changed frequently. After these laws become stable and simple, the matter may be examined.

1. Chapter 15, infra.

7.13. In the United States, Mr. Justice Jackson, himself once Chief Counsel for the Bureau of Internal Revenue, referred to federal taxation as "a field beset with invisible boomerangs". Judge Learned Hand grieved that the provisions of the Income-tax statutes "dance before my eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception couched in abstract terms that offer no handle to seize hold of-leave in my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time."1

Considerations such as these have weighed in our minds in excluding for the present, tax laws from the operation of the formula as to onus which we have suggested.

1. Ernest J. Brown Tax decisions of Judge Magruder, (1958-59) 71 Harvard Law Review, 1225.

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