Absolute Prohibition in Statutory Offences

Abstract

In all common law crimes, other than common nuisance, it appears that some culpable mental element, or mens rea, is required. The mental element is ‘culpable’ in the sense that the actus is only criminal when it is coupled with a realization of the probable consequences of the act or omission. In statutory offences this rule does not hold good; the actus may be prohibited in such language that a person may be liable for doing an act whether or not he did, or could, have foreseen the consequences. Such offences create what is commonly called Absolute Liability. Unfortunately our judges have used the expression mens rea in different senses. In this paper I use mens rea in its common law sense, and discuss at the end a meaning of mens rea that is now becoming common.