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Institutional Bias

posted 19 Mar 2017, 05:35 by mark: jennings

Mens Rea.


Today most crimes, including common-law crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person acts knowingly, purposely, or recklessly.


If such a statute is construed to purposely omit criminal intent, a person who commits the crime may be guilty even though they were in no way blameworthy in what they did. All that is required under such statutes is that the act itself is voluntary, since involuntary acts are not criminal.


The Road Traffic Act Section 143(2) has no element of mens rea and not only avoids the requirement but states emphatically the ‘person is guilty’. This is ‘strict liability’ offence.


This legal principle removes impartiality, the presiding judge is already disposed to the idea that the accused is guilty. There can be no ‘fair trial’ when the accused is considered guilty by simply committing the act. Any attempted ‘defence’ is seen as nothing more than mitigation to the act.


In Sweet v Parsley [1970] AC 132, 148-149, Lord Reid stated that - "there has for centuries been a  presumption  that Parliament did not intend to make criminals of persons who were in no way blameworthy 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".


It is clear there exists a significant divergence between The Road Traffic Act and the case precedent in Sweet v Parsley.


In my recent road traffic case, I was told by the Justice of the Peace, that “driving is a voluntary act so it was my intention to drive. With the absence of insurance this is all the mens rea required to prove guilt”. Pointing out the flawed logic of such an assertion that ‘intention to drive’ is not the same as ‘intention to drive without insurance’ is lost on the legal profession.


There is an obvious institutional bias against establishing ‘knowledge’ as a prerequisite to guilt. This is ‘adverse presumption’ and its primary purpose is to remove the difficulty which a prosecutor may face in proving guilt in the absence of a presumption – Nimmo v Alexander Cowan & Sons Ltd. Without the ‘adverse presumption’ imposed by the Road Traffic Act the prosecution need to prove beyond reasonable doubt that the accused intended to escape the legal requirements of the Act.


In Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 Lord Griffiths said in R v Hunt (Richard) [1987] AC 352, 374:  The overriding concern is that a trial should be fair, and the  presumption  of innocence is a fundamental right directed to that end...the substance and effect of any  presumption  adverse to a defendant must be examined, and must be reasonable...Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption…the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption.”


Being found guilty of ‘driving without insurance’ can result in disqualification or 6-8 penalty points and a £400 fine. Establishing ‘special reason(s)’ in mitigation allows the court to waive punishment. It is ironic that the proof of ‘special reason(s)’ is to establish you had a ‘genuine and reasonable belief’ that you were insured at the time of the offence.


The authority in this circumstance is Marshall v McLeod 1998 SLT 1199, 1998 SCCR 317 : If an accused gives credible but uncorroborated evidence that, for example, he believed that he was properly covered by insurance at the material time, he is entitled to be acquitted.”


So escaping punishment by establishing you had genuine and reasonable belief that you were insured, in other words to the best of your ‘knowledge’, is permissible under the Road Traffic Act which determines the act of driving without insurance is a strict liability offence for which you are guilty with no mens rea element of ‘knowledge’.


Honestly. These people are beyond moronic.


Bottom line. There can be no crime without the intent to commit a crime.


It is fundamental.

The voice in the wilderness