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The Penal Code of the Russian Socialist Federal Soviet Republic: ‘Article 10. Persons who commit socially dangerous acts shall be liable to the application of measures of social defence of a judicial-correctional character only—
(a) if they acted deliberately, i.e., if they foresaw the socially dangerous consequences of their acts, or desired those consequences, or knowingly permitted them to happen, or
(b) if they acted carelessly, i.e., if they did not foresee the consequences of their acts although they ought to have foreseen them, or if they light-mindedly hoped to avert auch consequences.’
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- Copyright © Cambridge Law Journal and Contributors 1946
References
1 Analytically, it is very easy to find fault with Article 10: for example, it appears to adopt Austin's definition of Intention (Lecture 19, p. 434); but, ‘if they foresaw the socially dangerous consequences of their acts’ and ‘or if they light-mindedly hoped to avert such consequences’ leave us wondering whether an act, plus foresight, but with no desire, is classified as Intention or Negligence. But this is mere academic quibbling; the Article furnishes a sound practical working rule.
2 ‘The case where an offender could neither know that his conduct was wrong, nor that it was legally punishable, will be obviously exempted from criminal liability under any but the most irrationally tyrannical government’: Clark, , Analysis of Criminal Liability, 63.Google Scholar
3 One reads of severe treatment of political offenders, e.g., Times, 13 11, 1931.Google Scholar This indicates exceptional punishments rather than exceptions to the operation of Article 10. Where political education is very thorough, it is hardly possible that a citizen who expresses disagreement with the prevailing ideology should do so unintentionally.
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5 One would have expected some such section in this Code, considering its philosophical and legal origin: 11, Holdsworth, , History of English Law, 225.Google Scholar
6 Gour, , Penal Code of India, 177.Google Scholar A very salutary rule, but not always followed in English cases: Hewart L.C.J. in Chajutin v. Whitehead (1938) Times, 13 Jan.Google Scholar
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14 Some of the more recent articles are by Stallybrass, , 52 L. Q. R. 205.Google ScholarTurner, . 5 C. L. J. 61Google Scholar; 6 C. L. J. 31. Jackson, , 6 C. L. J. 83.Google ScholarLevitt, , 17 Illinois L. R. 578.Google ScholarSayre, , 45 Harvard L. R. 974.Google ScholarPerkins, , 52 Harvard L. R. 905.Google ScholarBorchard, , 52 Yale L. J. 477.Google Scholar
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16 This is not meant to be controversial, but to discuss various viewpoints which the student can follow up.
17 ‘If the different states of criminal consciousness can be designated by different terms, there can be no benefit in confusing them by the misuse of a word clearly enough understood in ordinary parlance.’ Clark, , 79.Google Scholar Probably no one will agree with my use of terms, but I like them. They are simple and convey the idea simply. Compare Stroud, 6: ‘Full Intention’ and ‘Imperfect Intention’: and Austin, Lecture 19.
18 ‘Imagining’ the death of the king was not successfully established as a crime by the Statute of Treasons, 1351. Intention, even though known, is not criminal, London (1913) 29 T. L. R. 375.Google Scholar We all have mens rea, but most of us get a grip on ourselves. Only those who let themselves go are criminals.
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25 Clark, , 73.Google Scholar Whether or not Intention could include an intent to commit a legal wrong, and the wrong turns out to be a crime, as Kenny, Stroud, and many judges, have thought, I shall discuss later when dealing with Prince (1875).Google Scholar It is said in the 4 Report Criminal Law Commissioners, 15, ‘the intention to do the act exists for all criminal purposes where it is wilfully done, although the act itself was merely intended as a means of obtaining some ulterior object.’
26 E.g., Assault, Battery, Mayhem, Rape: Burglary, Larceny, Receiving, all the Fraud group of crimes: Malicious Damage: Attempt at any crime: probably all crimes of an infant between 8 and 14 years.
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35 I prefer the view taken by Austin that where there is foresight it is not negligence at all. Also Ewing, The Morality of Punishment, 54, ‘Carelessness is more dangerous to society than criminal propensities (being much more widespread) and ought to be punished accordingly.’ See Clark, , 54Google Scholar and Findlay J. in Davis & Wife (1937)Google ScholarTimes, 4, 5, 6 May, a conviction for manslaughter by gross negligence, but there was no foresight.
36 E.g., Food and Drugs Act, 1938, s. 9, (3): ‘or he did not know, and could not with reasonable diligence have ascertained.’ There are many recent statutes so worded; the effect is to put on the defence the burden of proving that there was no negligence.
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Once in a while it goes the other way: the Food and Drugs Act, 1938, s. 1, leaves out the words ‘that he did not know and could not with reasonable care have known’ that were in sect. 1 of the Food and Drugs Act, 1928.
56 Common Law, 3.
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68 Perhaps those who condemn these old methods of trial are crediting men of Saxon England with their own sceptical lack of faith: they disregard God's judgment, and suggest an unfair trial. Apart from the psychology side, I prefer to think that Englishmen believed in their methods of trial, and carried them through with their accustomed judicial fairness. I should have liked to have seen Mile. Larsonneur tried by ordeal, 24 C. A. R. 74.
69 Assize of Clarendon, 1166, 2 P. & M. 454.
70 I am afraid this is pure speculation; I have no authority for it.
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86 Compare the indices to Statutes; Archbold (indictable offences), 34 double-column pages of fine print; Stone, 143double-column; Clerk and Lindsell, Torts, 10 pages; Addison, Contract, 13 pages.
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164 E.g., Cohen (1937)Google ScholarTimes: bought old car; bad brakes; drove through city Several miles; then ran into crowd at tramway stop; killed two, injured five; not guilty manslaughter, guilty dangerous driving; thirteen months' imprisonment, and lose licence for ten years. This case is typical.
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191a (1921) 16 C. A. R. 134.
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211 This is seen by the furtive way in which acta such as trade restriction arrangements, or salea to a black-marketer, of which the public would disapprove, are carried out.
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214 True, Divisional Courts frequently send cases back to the Justices with an intimation about easy punishments; but I believe it is more an expression of contempt for the legislation than an instruction.
214a Sorsky & others (1944) 30 C. A. R. 84.Google Scholar
215 Best, , Evidence, 274Google Scholar: and as to precautions taken that unusual laws should reach the public ear, 300.
216 But recent legislation inclines to putting in words like ‘knowingly’ or ‘with due diligence’ which indicate the mens rea, or by tabulating possible defences.
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220 Mahmoud v. Ispahani [1921] 2 K. B. 716.Google Scholar
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224 [1899] 1 Q. B. 20.
225 (1917) 87 L. J. X. B. 507.
226 First offence fine up to £50; second offence, six months' imprisonment.
227 [1938] 1 K. B. 506.
228 Cases of Quasi-crime: Woodrow (1846) 15 M. & W. 404Google Scholar; Prince (1875) 2 C. C. R. 154Google Scholar; Wheat & Stocks [1921] 2 K. B. 118Google Scholar; Horton v. Gwynne [1921] 2 K. B. 661Google Scholar; Leinster (1924) 17 C. A. R. 176Google Scholar; Lartonneur (1933) 24 C. A. R. 74Google Scholar; Board of Trade v. Woods (1944) 8 J. C. L. 85Google Scholar; Jacobs & others (1944) 30 C. A. R. 1Google Scholar, conspiracy; I. C. R. Haulage Co. Ltd. (1944) 30 C. A. R. 31Google Scholar, but in a common law conspiracy mens rea is necessary; People v. Hatinger (1913) 174 Mich. 333Google Scholar; Mitchell v. Morrison (1938) J. C. 64Google Scholar, by majority, three strongly dissenting: Scots law case.
229 One wonders what M. Chajutin, having paid his £40 fine, his £5 5s. 0d. costs, his lawyers' fees, and having been deported, would find to say of British justice when he got back to Budapest.
230 Turner, , 6 C. L. J. 65.Google Scholar
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232 Stallybrass, , 52 L. Q. R. 60.Google Scholar Kenny has gone too far, and practically ignores it, Outlines 39, 45, 46, 49.
233 9 Holds. Hist. 411.
234 Farwell, L. J. in Conway v. Wade [1908] 2 K. B. at p. 856.Google Scholar