C2: Principles of criminal liability Flashcards
Where do all offences come from?
Either statute or common law.
What does ‘actus non facit reum nisi mens sit rea’ means?
‘An act does not make a person legally guilty unless the mind is also legally blameworthy.’
In most criminal offences, it is not enough for the defendant to merely do something wrong. What else must they have?
A blameworthy state of mind at the relevant time.
What are the two essential elements to a criminal offence?
Actus reus (AR) - guilty act
Mens rea (MR) - guilty mind
What is the best way to describe the actus rea?
The AR of an offence consists of all the physical elements of the offence that the prosecution has to prove, according to the definition of the offence.
What are the three elements to an AR?
- Conduct element - defendant committing a positive act, or occasionally an omission.
- Results element - must cause certain results or consequences
- Circumstance element - surrounding circumstances, e.g. victim is living human being or property belongs to another person.
What are the two types of crimes that criminal offences can be divided into? Give an example for each.
- Conduct crimes, i.e. perjury (which don’t need a specific result to come about and don’t have the result element)
- Result crimes, i.e murder (where a life is taken)
What are the offences called that do not require any mens rea?
Strict liability offences.
As well as the AR and MR, what is the final requirement for there to be criminal liability?
The defendant must be unable to raise a defence.
How can the actus rea and mens rea be discovered?
By looking at the definition of the offence. E.g. Murder ‘the unlawful killing of another human being within the Queen’s peace, with malice aforethought’. Amongst other words included in the definition, killing would be actus rea, malice aforethought would be mens rea.
What is a thought crime?
It is a mens rea without an actus rea. It does not exist. Every criminal offence has an actus rea.
Can an omission count as ‘conduct’?
Yes, although English and Welsh criminal law does not include a general duty to act, there can be instances where an omission can make them criminally liable for their failure to intervene, e.g. having a special relationship/closeness with a drowning child.
Which criminal offence definitely cannot be caused by omission?
Manslaughter - the defendant must commit a positive act to be convicted.
Obtaining services dishonestly as well.
Explain Miller [1983] and its effect on the law around omissions of acts for actus reus?
In Miller [1983], the defendant was living in an unoccupied building. One night, the defendant had fallen asleep while holding a lighted cigarette. At some point, he dropped the lighted cigarette on to the mattress which caught fire. When the defendant woke up and realised what happened, he decided to move to another part of the building, doing nothing about the fire. The fire caused damaged to the building and the defendant was charged with arson contrary to s1(1) and (3) Criminal Damage Act 1971. The case eventually went to the House of Lords which held that the defendant ‘had a duty reasonably to prevent that fire from spreading’. If, for instance, when the defendant woke up the fire was already out of control, it would be unreasonable to expect him to deal with it on his own. In this case, though, the defendant could still have called the fire brigade or asked for some help in order to prevent further damage to the building. Consequently, whether the defendant breached his duty to act will depend heavily on the facts of the case.
Why do we not generally criminalise defendants who merely fail to act?
Imposing a general duty to act would put a heavy burden on citizens, who are arguably less blameworthy than when the result is caused by a positive act. Also, rescuers can often make things worse!
When do we generally criminalise defendants who fail to act?
When they are under a legal duty to act, e.g. special relationship or in those cases where an omission was as deserving of criminal liability as a positive act.
What is an example of some statute where there is an offence for failing to act?
Refusing to give a specimen of breath to a police officer, or not stopping to give details on a road traffic accident. (Road Traffic Act 1988)
Can a duty to act arise from a contract? Provide an example where an omission to act was an offence due to a contractual duty to act.
Yes it can, e.g. Pittwood [1902] when an employee left the gate open at a level crossing and a victim was killed by an oncoming train - it was in his contract that shutting the gate was his job.
Can a duty to act arise in a special relationship between the defendant and victim? Provide an example.
Hood [2004] where the defendant, a carer for his wife, did not call an ambulance when his wife fell and broke her leg and hip until 3 weeks later. She then died in hospital due to the low standard of care provided by the defendant, who had a duty of care to his wife.
Explain where a duty to act arose in Airedale National Health Service Trust v Bland [1993] and why an omission to act was not an offence?
In this case, Anthony Bland, a victim of the Hillsborough stadium disaster, had been in a persistent vegetative state for three years. There was no hope of improvement or recovery. The victim’s parents wanted to allow their son to die peacefully and applied for a declaration that they might discontinue ventilation, nutrition, hydration and medical care (other than that necessary to allow their son to die peacefully). It was held that if, having regard to responsible and competent medical opinion, it was no longer in the best interests of the patient to be kept alive, the doctors would be relieved of their duty to act.
Can a police officer be criminally liable when they fail to intervene in a crime when on duty?
Yes, in Dythan [1979], when a police constable on duty was held to have committed an offence when he knowingly failed to intervene when the victim was ejected from a nightclub and beaten to death by a ‘bouncer’.
Can a duty arise from an omission when the defendant voluntarily assumes responsibility for a person or situation? Provide an example.
Yes, see Stone and Dobinson [1977] where both defendants took on responsibility for Stone’s anorexic sister through making ineffectual efforts to contact a doctor for her. They were convicted due to being in breach of a duty to act, i.e. caring for the victim and preventing her death due to infected bedsores.
Is there a legal duty to rescue a person in distress?
No, there is not.
What happens if someone attempts to rescue a person in distress and makes the situation worse?
They often will have a duty of care to the victim as a result of their voluntary assumption of responsibility.
Can a person that, by acts and/or words, exposes a person to a reasonably foreseeable risk of injury due to the person failing to prevent the risk, be criminally liable?
Yes, Santana-Bermudez [2004], a police officer, who was intending to carry out a full body search on the defendant, asked him to turn out his pockets. The defendant did so and produced some syringes without needles. The victim then asked the defendant if he had any needles on him and he smirkingly said ‘no’. When searching one of the pockets, the victim’s finger was pricked by a needle. The Crown Court held that this could not constitute a battery and ABH because the defendant had simply failed to act at the point that the victim was harmed. On appeal, the Divisional Court held that where the defendant, by acts and/or words, exposes a person to a reasonably foreseeable risk of injury which materialises because the defendant fails to prevent the risk, then this can satisfy the AR of battery.
Explain how the defendant in Evans [2009] was convicted on gross negligence manslaughter when she handed her the drugs that caused an overdose?
Evans [2009], the defendant bought heroin and handed some to her half-sister, who later self-administered the drug. The defendant noticed that the victim looked as if she had taken an overdose, and decided to spend the night with her. The defendant did not call for medical assistance as she feared she would get into trouble. When she woke, the victim was dead. The defendant was convicted of gross negligence manslaughter and appealed. The Court of Appeal held that a duty to act and save the victim’s life will normally arise where the defendant creates or contributes to the creation of a state of affairs which she knows, or ought reasonably to know, has become life-threatening. Her conviction for gross negligence manslaughter was upheld.
In civil law, what is the rule ex turpi causa? Is it relevant in criminal law?
A person cannot bring an action where they have been involved in illegal activity themselves. It isn’t relevant in criminal law.
Can a duty of care exist even though the person affected by the defendant’s conduct also engages in criminal activity? Give an example.
In Wacker [2003], the Court of Appeal held that the defendant owed a duty of care to 58 illegal immigrants who were hidden in a side container attached to his lorry and who died from lack of air due to a closed vent. This was despite the illegal activity of the immigrants. The case is also authority for the fact that a duty of care will exist even though the person owed this duty consents to the defendant’s conduct. Similarly, in Willoughby [2005], the Court of Appeal held that the accused owed a duty of care to his friend, despite the fact that his friend had engaged in criminal activity.
What are the types of duty of care?
Special relationship
Contract
Public office
Voluntarily assuming responsibility
Creating a dangerous situation
Why do conduct crimes not require you to look at causation?
Because conduct crimes do not require the defendant’s conduct to have caused a particular result or consequence, so there is no need to consider causation in relation to such offences.
When does an offence require causation to be looked at?
When the defendant needs to have caused a certain result, for result crimes.
What are the two hurdles of causation?
Factual causation
Legal causation
What is the test for factual causation?
The ‘but for’ test.
Can the ‘but for’ test be satisfied even if the defendant’s actions mean that the victim dies earlier than they otherwise would have done? Give an example.
Yes, in Pagett (1983), for example, the defendant, who was trying to avoid being arrested by the police, used the victim as a human shield and shot at the police. The police returned fire killing the victim. The defendant was convicted of an unlawful act of manslaughter on the basis that the victim would not have died ‘but for’ the defendant’s conduct of using them as a human shield.
What happens when factual causation cannot be established? Give an example (mother, cyanide, heart failure)
In White [1910], though, the prosecution could not establish factual causation and therefore the defendant could not be held criminally liable for the victim’s death. The defendant, intending to murder his mother, put cyanide in her bedtime drink. Medical evidence showed that she had not died of poisoning, but had died of unrelated heart failure. Although the defendant could not be convicted of murdering his mother, he was still convicted of attempted murder.
What comes after the ‘but for’ test?
Legal causation - finding out whether the defendant is legally to blame for what happened.
What does legal causation depend on?
On whether the defendant is legally to blame for what happened.
Which three factors do courts tend to focus on when examining legal causation?
In terms of the result, was the defendant’s conduct:
- operating and substantial? (de minimis).
- a blameworthy cause?
- Was there a ‘new intervening act’ that broke the chain of causation? (novus actus interveniens)
In ‘de minimis’ or operating and substantial, does the defendant’s conduct need to be the sole/main cause of the consequence?
The defendant’s conduct need not be the sole or even the main cause of the consequence, as long as it is a more than a minimal cause.
What type of act would break the chain of causation?
A new intervening act (novus actus interveniens)
What are some of the most commonly argued breaks in the chain of causation?
Acts of third parties
Interventions of the medical profession
Intervening natural events
Acts of the victim:
- refusing medical treatment/pre-existing condition
- self-harm
- heroin cases
Will an intervening act break the chain of causation if the defendants act remains an operating and substantial cause of the result?
No, it will not.
What does the new, intervening act need to be to break the chain of causation due to the conduct of third parties?
‘free, deliberate and informed’
Even if a third party intervention is free, deliberate and informed, will it break the chain of causation if it was reasonably foreseeable?
Yes, it will.
How often will medical interventions break the chain of causation ?
Medical interventions will very rarely break the chain of causation and this is due to policy considerations.
Is medical treatment more likely to break the chain of causation where it involves a positive act or an omission?
A positive act - it would need to be ‘so independent’ from the defendant’s conduct and ‘so potent’ in causing the result.
Can intervening natural events break the chain of causation?
It depends if the intervening act is reasonably foreseeable or not.
What about pre-existing conditions - can they count as an intervening act?
No, because it was a pre-existing condition - Thin skull rule.
What is the most serious form of self-harm?
Suicide.
Can the chain of causation remain intact when the victim commits suicide?
Only where the defendant’s unlawful conduct does cause a recognisable psychiatric illness which then leads to suicide.
Expand on how when a victim self-administers heroin, the defendant that gave it to them is not criminally liable.
Kennedy (no. 2) [2007]. Where the defendant supplied a syringe full of heroin to the victim who then self-injected and subsequently died. It was held that the free, voluntary and informed act of the victim broke the chain of causation. However, in Evans [2009], it was established that a possible alternative charge in this type of case could be gross negligence manslaughter, as long as the elements of that offence can be proved.
What are the rules around escape cases, or ‘fright and flight’ cases? E.g. jumping from a car?
Roberts (1972). The defendant, whilst in a car travelling between 20 and 40 mph, tried to take off the victim’s coat with the intention of sexually assaulting her. The victim jumped out and sustained ABH. On the facts, the defendant’s conduct was still an operating and substantial cause of the ABH because, given the speed of the car, the victim’s decision to jump was not daft and foolhardy – it was a reasonably foreseeable result. N.B. This test of reasonable foreseeability is different from the test applied in other forms of intervening acts (where the victim’s intervention can be daft/foolhardy and not reasonably foreseeable e.g. Blaue Jehovah’s Witness).
Is the test of causation subjective or objective?
It is objective (based on a reasonable person), not subjective (based on the defendant)
If a defendant is young and the result of his act/omission was not foreseeable to him, should he be acquitted?
No, because the test of causation is objective, not subjective. This means that a reasonable person would need to see whether the result was foreseeable or not, not the defendant themselves.
What are the rules on pollution cases?
The underlying policy appears to be that those who run hazardous operations must be accountable for all the consequences of actions, whether foreseeable or not.
Does the sequence or the manner of events affect legal causation being established?
No, where the result occurs in the manner intended by the defendant, they will be guilty even if the sequence of events is unforeseeable. In Michael (1840), the defendant was guilty of murdering her child even though the medicine containing the poison had not been administered, as was intended, by the child’s nanny, but by the victim’s sibling.
Who would decide whether causation is present?
The jury, or magistrates if in the Magistrates’ court summarily. They are not bound to follow expert evidence in trial.
Give an example of a circumstantial element in an actus reus?
Some crimes include (as part of the AR) a surrounding circumstance(s) which has to be present at the time of the defendant’s conduct. E.g. The surrounding circumstance in the offence of rape is that the complainant did not consent to intentional penile penetration.
Does the AR and MR need to coincide in time?
Yes, the defendant must possess the requisite MR when committing the AR. At that precise moment when the AR and the MR coincide the crime is instantaneous and complete. In order to overcome a time delay between act and mental state, the courts have developed the ‘continuing act’ principle, e.g. Fagan [1968] police’s foot.
Explain the ‘continuing act’ principle with regard to Fagan [1968]?
AR preceding MR.
AR = running over a policeman’s foot
MR = was an accident, so not at the same time. Later though, he left his car on the policeman’s foot. This was not a positive act but a failure to act: an omission.
The Court of Appeal held that the initial positive act of driving the car onto the policeman’s foot continued up until the point that the MR formed. This established a coincidence of AR and MR.
Can the MR precede the AR?
Yes, where the defendant engages in a number of acts designed to result in a particular consequence, it may be possible to treat the presence of MR at any point in the sequence of acts as sufficient for liability. In Thabo Meli [1954], the defendant and others, intending to kill the victim, lured him to a remote spot and beat him severely. Believing they had killed him, they then rolled him down a small hill. In truth, the victim was not dead, but he later died from the effects of exposure. The defendant’s argument that, believing the victim already to be dead, he could not have intended death or serious injury in rolling him down the hill and leaving his ‘body’, was rejected on the grounds that the beating and disposal were all part of the same ‘transaction’, so that the presence of MR in relation to the beating was sufficient for liability for murder.
How can the ‘continuing act’ principle exist in the absence of a ‘plan’ - can all the acts be welded into a single ‘transaction’?
E.g. someone getting rid of the body whilst not having killed them. The MR is there, but the AR was late.
In Le Brun [1991], the defendant first struck the victim and knocked her to the ground, and then dropped her when trying to drag her into their house. She died from a broken skull caused by being dropped.
The Court of Appeal considered that Church was correct in applying the transaction principle to manslaughter, where there was no plan.First, that the initial blow and the subsequent attempt to cover it up by dragging her to the house were part of one transaction, so that the MR in relation to the blow was enough for liability for unlawful act manslaughter. Second, that the initial blow could itself be regarded as a cause in law of the death and that the chain of causation was not interrupted by the defendant’s subsequent conduct, which flowed from the initial blow.
What is the legal presumption about the voluntariness of the defendant’s conduct?
It is presumed that the defendant voluntarily engages in the act or the omission
What are 4 MR terms?
Direct intention
Oblique intention
Subjective recklessness
Negligence
Does intention relate to motive?
No, intention does not relate to motive. The term ‘rea’, refers to legal guilt, not moral guilt. This means that the defendant may commit a crime where they intend the result, even though they have a good motive.
Would doctors operating on conjoined twins have the MR of murder in relation to one twin, who would certainly die with or without the separation procedure, to save the other?
Yes, even though the motive was to say, the other twin’s life, the intention was still there. The defence of necessity may apply in this case. Re A (Children) [2000].
Is there an exception when it comes to having intention yet having a good motive?
There have been cases where a good motive has allowed the defendant to escape conviction. E.g. Steane [1947], the jury would not convict, because he was wishing to save his family, although this was then deemed to be an incorrect legal decision.
Is motive ever relevant in establishing liability?
Yes, only in specific crimes such as racially, aggravated offences. Motive can also be relevant in sentencing; good motive = mitigating factor, bad, motive = aggravating factor.
What are the two types of intention?
Direct and oblique.
How can the defendant’s direct intention normally be deduced? Give examples.
The defendant’s aim or purpose can normally be deduced by their actions or by the surrounding evidence. E.g. The defendant walks up to the victim and shoots them in the head from point-blank range, the defendant stabs the victim in the heart, the defendant stamps on the victim’s head many times whilst they are lying on the floor.
What is the ‘golden rule’ that Lord Bridge suggested in Moloney [1985] regarding intention?
Judges should not give juries detailed guidance on the meaning of intention.
What is oblique intention?
Where the court will infer that the defendant did intend the result, if it was a virtually certain consequence of his or her action.
Which court case lay down the test on oblique intention?
Woollin [1998]
What were the circumstances of Woollin [1998]?
The current law on oblique intention is that laid down in Woollin [1998]. Here, the defendant lost his temper and threw his baby 5 feet across the room, causing him a fractured skull from which he died. It was not the defendant’s purpose to kill or cause serious bodily harm.
What is the test for indirect/oblique intention?
The Woollin [1998] test: the test for indirect/oblique intention was foresight (awareness) of a substantial risk of death or serious harm.
The Woollin test for indirect/oblique intention has three limbs.
- Was death or serious harm virtually certain to result from the defendant’s conduct? (OBJECTIVE)
- Did the defendant appreciate that death or serious harm was virtually certain to result from their acts? (SUBJECTIVE)
- If the jury answers both of these questions positively, then they are ‘entitled to find intention’. even if the first two limbs of the test are satisfied, the jury might still refuse to find an intention.
Woollin direction will only be required in cases where there is evidence that the defendant had some aim or purpose other than the prohibited consequences required by the definition of the offence in question.
Why should a judge refrain from elaborating on the meaning of intention to the jury?
It may confuse the jury on quite a simple decision - whether there was intention or not. They should only apply the Woollin test if the judge is convinced that some further explanation on the meaning of intention is necessary to avoid misunderstanding.
What did the Law Commission propose as the definition of intention in ‘Murder, Manslaughter and Infanticide’?
(1) A person should be taken to intend a result if he or she acts in order to bring it about; and
(2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action.
What will the prosecution try to prove if they cannot prove intention?
Recklessness - the defendant taking an unjustifiable risk.
What were the two types of recklessness and what has changed?
Subjective recklessness: Subjective recklessness requires proof of a certain state of mind in relation to the risk of the result occurring,
Objective recklessness: Objective recklessness did not require any state of mind on the part of the defendant.
Since G [2003], there is now only one type of recklessness: subjective recklessness
What is negligence?
Where the defendant has failed to meet the standard of conduct expected of the reasonable person.
Will the defendant be negligent if they are unaware of the fact that they have not reached the standard of a reasonable person?
Yes, they still will be negligent, because it is an objective test.
Will anything change if someone is aware of the fact that they have not reached the standard of a reasonable person?
Yes, if they are aware of it, their culpability will be greater and their state of mind will be recklessness or intention.
What is the standard for negligence?
It is objective - the defendant is judged against the standard of the reasonable person. There is a higher standard for a defendant who has specialist knowledge.
Which type of recklessness is negligence similar to?
Objective recklessness, but this is now no longer good law.
Can negligence be the basis for liability for serious criminal offences?
No, English and Welsh criminal law is consistently resistant to the claims of objective tests of liability, at least for the more serious offences.
What is the most serious criminal offence that negligence can be used as the basis for liability?
Gross negligence manslaughter.
In deciding whether or not a duty of care is owed in a gross negligence manslaughter case, what will the courts consider? What if it was an omission instead of a positive act?
In deciding whether a duty of care is owed in a gross negligence manslaughter case, the courts will consider ordinary principles of negligence. This means that if the defendant’s alleged negligence is a positive act, the court will consider whether there is a direct or analogous precedent which states that a duty of care is owed in those circumstances. If the defendant’s alleged negligence is an omission, the court will consider whether any of the duty situations where omissions mean duty still arises, apply.
Give examples of statutory offences where negligence is the basis of liability?
RTA 1988
ss1&2: dangerous driving
s3: driving without care and attention
Both fall below what would be expected of a competent and careful driver, but the first more than the second.
What is transferred malice?
A type of mens rea where the MR looks as though it can’t be established because what happened isn’t in line with what the defendant foresaw. Often used for mistaken identity or a result crime not happening to the person it was intended for originally, see Mitchell [1983].
Describe Mitchell [1983] and how transferred malice was used in the case?
In Mitchell [1983], the defendant hit E, a 72-year-old man who was trying to stop the defendant pushing to the front of a post office queue. E fell back onto the victim, a frail 89-year-old lady, who broke her leg and later died from a pulmonary embolism caused by a blood clot resulting from the break. The defendant was convicted of unlawful act manslaughter. The defendant was the legal cause despite the fact that his act was directed at E, and MR was established because the defendant’s intention to E could be transferred to victim. In this case, the defendant did actually hit his intended subject as well as the victim, but his intention could have been transferred even if he had completely missed his intended subject.
Is the malice part of transferred malice important?
Not particularly, it should really be called transferred MR.
In which situation can transferred malice not be relied upon?
When the defendant has MR for one crime but commits AR for a different crime. E.g. Pembliton [1874], defendant threw a rock at a person, but it broke a window instead. No MR for criminal damage.
Or
Where there was a double transfer of intention, e.g. A-G’s Reference {No. 3 of 1994) [1997], where the defendant stabbing a pregnant woman killed a prematurely born baby because of the stabbing. It couldn’t go from mother to foetus, from foetus to born baby.
What are crimes of ulterior mens rea?
Burlgary with intent, for example. Crimes that require a second mens rea, usually intent to do another crime.
Will recklessness suffice for crimes of ulterior intent?
No, it will not.You need intent.
What is a strict liability offence?
It is an offence that does not require any MR on the part of the defendant. E.g. strict liability on employees that facilitate tax evasion.
How are strict liability offences regarded?
As not truly criminal, but as quasi-criminal. They are debated often, as sometimes the defendant is blameless and did not intend to commit the crime.
What are case examples (not names) of strict liability offences?
Pharmacist giving out drugs on a fake prescription, without knowing it was fake.
Butcher selling unfit meat, even though it had been okay’ed by a vet.
What is a partial strict liability offence?
When some of the elements of the AR may attract MR. E.g. assaulting a constable in the execution of their duty requires proof of MR for assault of battery, but doesn’t need proof that the defendant knew the constable was a constable or acting in the execution of their duty.
What is the starting point to establish whether an offence is one of strict liability?
Whether the offence is a common law offence or a statutory offence.
Are strict liability offences usually common law offences or statutory offences?
Usually statutory offences - most common law offences have a general assumption that MR is required.
What are the three ways that you can find out whether statutory offences are strict liability or not?
1) Express words
2) Words implying MR
3) Presumption of GR
How would express words in statute show whether an offence is of strict liability or not?
Parliament may have expressly provided that the offence is one of strict liability. Although it is rare, it does appear in Contempt of Court Act 1981. Parliament can also make sure that the offence requires MR, e.g. theft ‘dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’.
How would words implying MR in statute show whether an offence is of strict liability or not?
It may be that other words are used which import a mental element, for example, ‘using’, ‘causing’, ‘permitting’, which would imply MR. The use of an adverb is much more likely to indicate that MR is required – for example, where it is an offence to ‘knowingly permit’ a course of action.
How would the presumption of MR in statute show whether an offence is of strict liability or not?
If there are no words evidencing Parliament’s intention to make the offence one requiring MR, it is presumed that MR or negligence is required. This presumption can be rebutted.
How can the presumption of MR in statute be rebutted?
1) If Parliament refers to MR in other sections but not in the section in question, the intention must have been to make the section in question a strict liability offence. This isn’t conclusive - it depends on the case.
2) By applying the test in Gammon v Attorney-General of Hong Kong [1985].
Why would you use the test in Gammon v Attorney-General of Hong Kong [1985] to rebut MR and find out whether it is a strict liability offence?
Sometimes it is impossible to find out from the statutory context whether an offence is a strict liability offence or not. Instead, it may be necessary to look at the social context.
What is the test in Gammon v Attorney-General of Hong Kong [1985] to rebut MR and find out whether it is a strict liability offence?
In deciding whether the offence is quasi-criminal the following factors are relevant:
1) The severity of the punishment (If lesser crime, YES SL)
2) Whether the offence applies to specific sections of the public (If so, YES SL)
3) Whether the offence is concerned with an issue of social concern such as public safety (if so, YES SL)
4) Whether the creation of strict liability will promote the object of the offence by encouraging greater vigilance to prevent the commission of the prohibited act. (If SL promotes greater vigilance, YES SL)
What is the current approach to strict liability/statutory defences?
The courts impose strict liability, but provide the statutory defence of ‘due diligence’. This means that the burden of proof is upon the defendant to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence (by themself or someone under their control).
Why is the statutory defence against strict liability, due diligence, at odds with the ECHR?
Contrary to the general rule from Woolmington v DPP [1935], due diligence means that the defendant bears the burden of proof, not that the prosecution must prove all elements of the offence, and disprove any defence beyond all reasonable doubt (agreed in the Woolmington principle).This may contravene the right to a fair trial under Art 6 ECHR.
How does the statutory defence against strict liability, due diligence, resolve the conflict with the ECHR?
In order for the law to be compatible with Art 6 ECHR, it may be that the defendant should be required to adduce (put forward) some evidence that they did not have the required state of mind, but the prosecution will still bear the burden of proving that the defendant did.
