Exceptions to the General Principle of Actus Reus and Mens Rea

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In pre-colonial Tanzania, the foundation of social and political structures began with the family, evolving into clans and eventually tribes, which represented more organized societies with shared territories, dialects, and religious practices.

Exceptions to the General Principle of Actus Reus and Mens Rea

(a) Strict Liability

Under the general principle of criminal law, mens rea (a guilty mind) is essential for establishing most crimes. However, in cases of strict liability, mens rea is not required. This means that the intention, belief, or state of mind of the accused is irrelevant. If the accused has performed the actus reus (the prohibited act), they can be found guilty without the need to prove mens rea. Such offences are referred to as strict or absolute liability offences.

Identifying strict liability offences can be challenging, and it is not always clear whether courts will interpret a statute as imposing strict liability. Some legal experts argue that courts, rather than legislatures, are responsible for the creation of strict liability offences. A key case on this issue is Sherras v. De Rutzen (1895) Q.B.D 918, where Wright J. stated:

"There is a presumption that mens rea is an essential element in every offence, but this presumption can be displaced by the wording of the statute or the nature of the subject matter it addresses."

To determine whether an offence is one of strict liability, the court first examines the language of the statute to identify the intent of the legislature. If words like "knowingly" are absent, it may indicate an absolute offence, but the absence of such terms does not always exclude the need for mens rea.

Several cases illustrate the application of strict liability:

1. Cundy v. Le Cocq (1884) 13 Q.B.D 207: The defendant was convicted of selling alcohol to a drunk person under the Licensing Act 1872, even though he did not know the person was drunk. The court held that knowledge was not required for guilt under this section.

2. Maulid v. R (1970) HCD n. 346 (Tanzania): The appellant was convicted of failing to maintain records and pay minimum wages for employees. The court ruled that these were statutory offences of absolute liability, making mens rea irrelevant.

3. Joseph Hawksworth v. R (1970) H.C.D n. 271 (Tanzania): Two men were convicted of unlawfully entering Tanzania, despite their claims of being misled. The court upheld their convictions, emphasizing legislative intent, the difficulty of proving mens rea, and the seriousness of the harm caused.

Strict liability has also been applied in public health and safety cases:

• In Hobbs v. Winchester Corporation (1910) 2 K.B. 471, a butcher was held liable for selling unsound meat despite not knowing it was unfit for consumption. The court ruled that public safety took precedence.

However, courts sometimes reject strict liability. For example, in Mumir v. R (1967) E.A. 430, the Kenya High Court quashed a conviction when the appellant had a reasonable excuse for possessing diseased meat, emphasizing the importance of reasonable behavior.

Although strict liability does not require mens rea, the accused must have willingly committed the act. This is why it is called "strict" rather than "absolute" liability.

Justification for Strict Liability

The purpose of strict liability is to promote public welfare by encouraging individuals to act responsibly in matters of public health, safety, and morality. Roscoe Pound argued that it pressures individuals to fulfill their duties efficiently. However, critics note that it may convict individuals who are neither negligent nor morally blameworthy.

Some argue that negligence-based liability or shifting the burden of proof to the accused in specific cases could achieve the same goals without the shortcomings of strict liability. This approach could balance public welfare with fairness to the accused.

(b) Vicarious Liability

Vicarious liability refers to the legal responsibility of a master (employer or principal) for the actions of their servant (employee or agent) performed within the scope of their employment. While primarily applicable in civil law, such as tort cases, vicarious liability also extends to certain criminal offences, albeit under more specific conditions.

In general, criminal law does not hold the master liable for the criminal acts of their servant unless the master explicitly authorized, aided, or abetted the act. However, two notable exceptions exist at common law:

1. Libel in Newspaper Publications: 

A proprietor of a newspaper may be held criminally and civilly liable for libels published by their employees, even if the publication occurred without the proprietor’s authorization. The proprietor can only escape liability by proving that the libel was published without their authority and that they exercised adequate care.

2. Public Nuisance:

A master may also be vicariously liable for public nuisance caused by the acts of their servant. In such cases, a lack of mens rea on the master's part may only serve as a mitigating factor rather than a defense.

Statutory provisions, especially those involving strict or absolute liability, frequently impose vicarious responsibility. In Taeco Supermarkets Ltd v. Natras (1971) 2 All E.R. 127 at p. 155, Lord Diplock observed that a criminal offence typically requires a reprehensible state of mind unless strict liability is legislatively imposed.

The Position in Tanzania

In Tanzania, vicarious liability is codified under section 54 of the Interpretation of Laws and General Clauses Act (Cap. 1). This section states:

"Where any offence under any Act is committed by a person as an agent or employee then, unless a contrary intention appears, as well as the agent or employee, the principal or employer shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves to the satisfaction of the court that he had no knowledge, and could not, by the exercise of reasonable diligence, have had knowledge, of the commission of the offence."

For example, in Ali Mohamed Osman v. R [1952] T.L.R. 391, the appellant, a lorry owner, was found guilty of permitting the use of defective tyres on a public road. The court ruled that leaving vehicle maintenance entirely to the driver amounted to permitting non-compliance with traffic laws.

Other Jurisdictions

In Kenya, the case of Lowis and Hodgkiss Ltd v. The Queen (1954) 27 K.L.R. 168 highlighted three categories of vicarious liability in statutory offences:

1. The act of the servant is deemed the act of the master, irrespective of the master’s knowledge or prohibition.
2. The master is liable unless they prove reasonable preventive measures.
3. The master is liable only if it is shown that they inspired, counseled, caused, or permitted the act.

Delegation of Duties

Vicarious liability also arises when a master delegates statutory duties to a servant. For instance, in Hamed Abdallah v. R (1964) E.A. 270, the owner of a public service vehicle was held absolutely liable for non-compliance with road service license conditions, even though the owner was neither present nor aware of the breach.

(c) Collective Liability

Collective liability is a variant of vicarious liability, as it allows for punishment of individuals or groups without direct involvement in the actus reus. In Tanzania, the primary legal framework for collective liability is the Collective Punishment Ordinance (1921), CAP. 74.

Under section 2 of this Ordinance, the President is empowered to impose fines on any village, area, district, or members of a tribe, sub-tribe, or community, provided an inquiry establishes the following:

1. Collusion or Harboring of Criminals:

The community or its members have colluded with or harbored criminals or failed to take reasonable measures to prevent their escape.

2. Suppression of Evidence:

The community or its members have suppressed or conspired to suppress evidence in any criminal case.

3. Failure to Recover Stolen Property:

If stolen property is traced within the boundaries of a village, area, or district, and the community fails to recover the property or trace it beyond their jurisdiction, they may be held liable.

Distinctive Features of Collective Liability

• Authority of Imposition:

The power to impose collective punishment rests solely with the President, not with the courts. This centralized authority reflects the serious and broad nature of the circumstances in which collective liability applies.

• Justifications and Objectives:

The rationale for collective liability parallels that of vicarious liability. It aims to enforce accountability, discourage communal negligence or complicity in crime, and uphold societal order. By imposing responsibility on a group, it compels communities to actively prevent, report, or rectify criminal conduct within their jurisdiction.

(d) Corporate Liability

Corporate liability addresses the criminal responsibility of corporations, which are legal entities without physical existence. A corporation cannot form intentions or perform actions independently; it functions through its directors, officers, and employees. As per section 3 of the Interpretation of Laws and General Clauses Act, 1972 (Cap. 1), a "person" includes both corporate and unincorporated bodies, making corporations liable for criminal acts.

Section 53 of the Act further establishes that if a body corporate commits an offence, both the corporation and its directors or officers involved in managing its affairs may be held liable unless the directors or officers prove that they had no knowledge of the offence and could not have reasonably discovered it through due diligence.

Despite the inherent vicarious nature of corporate liabilities, courts often treat the company’s actions as its own, not merely the acts of its employees. For instance, in H.L. Bolton (Engineering) Co. Ltd v. T.J. Graham (1957), Lord Denning observed that the state of mind of responsible officers like directors or managers is legally considered the corporation’s state of mind. Thus, their actions within the scope of their employment are deemed acts of the company. However, as clarified in Smithfield Butchery Ltd v. R (1949), wrongful acts of subordinate staff typically do not suffice to impose criminal liability on a corporation. Similarly, in Leonard's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd (1915), liability was attributed only to actions representing the corporation itself, not those of mere servants or agents.

Limitations of Corporate Liability

1. Offences Involving Physical Acts:

Corporations cannot commit crimes requiring physical acts, such as murder or sexual offences. Their liability is generally confined to offences punishable by fines.

2. Scope of Employment:

Certain offences, like treason or sexual crimes, fall outside the plausible scope of corporate activities and are unlikely to result in corporate liability.

Rationale for Corporate Punishment

1. Ensuring Accountability:
   Punishing corporations ensures no offence goes unaddressed and proportionate fines may be imposed, especially when individual offenders lack sufficient means.

2. Preventing Illegalities:
   Imposing liability motivates those directing the corporation to prioritize compliance and prevent illegal acts.

3. Public Warning:
   Convicting a corporation for wrongful acts, such as operating defective vehicles, warns the public and promotes safer practices.

Corporate liability balances the need for justice and accountability in situations where offences arise from a corporation’s operations, safeguarding public interests while holding entities responsible for their actions.

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Causation refers to the relationship between the accused's actions (or omissions) and the consequences of those actions. A person is considered to have caused an event if, but for their conduct, the event would not have occurred at the time and in the manner it did. In criminal law, when the actus reus of an offense involves specific consequences, it must be demonstrated that the accused caused the result.