Mens Rea - Strict and Absolute Liability Offences

Question 1

Sherras v De Rutzen

Answer 1

Wright J - MR presumption did not apply to “… a class of acts which … are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty.”

Question 2

R v Lambert

Answer 2

Lord Clyde - Health and safety and pollution control - Not truly criminal; Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy

Question 3

M’Adam v Dublin United Tramways

Answer 3

• Sullivan P = Overcrowded buses - Could only achieve objective of protecting public through absolute liability; “The acts in this case are not in any real sense criminal, but in the public interest they are prohibited under a penalty.
• Take into account efforts when imposing penalty

Question 4

R v City of Sault Ste Marie

Answer 4

Dickinson J
- Arguments for and against absolute liability and endorses against arguments (rebuttal)
- Due diligence defence

Question 5

Maguire v Shannon Regional Fisheries Board (HC)

Answer 5

Lynch J
- MR presumption from Sherras v De Rutzen
- Alphacell v Woodword (Rivers Act 1951) - Lord Wilberforce = Pollution historically regulatory offence; Lord Salmon - Public importance, not criminal in any real sense but prohibited under a penalty
- Very difficult to convict; nominal penalty
- AL and penalties promote objectives of statute
- Spend £200,000 if not AL?

Question 6

Shannon Regional Fisheries Board v Cavan County Council

Answer 6

Majority (Blayney J and O’Faherty JJ) - AL based on Alphacell v Woodword
Keane J (dissenting):
- General MR principle- Blackstone - “Vicous will”; Sherras exceptions - Lord Scarman’s five principles in Gammon Ltd
- Endorses Sweet v Parsley - Only AL where within control to increase observance of obligation
- R v City of Sault Ste Marie endorses Dickinson
- Public welfare offences no MR e.g. health and security - Significant number of prosecutions and relatively minor penalties
- Increased vigilance objective - Reasonable care defence makes sense; not having one encourages lower standards
- Penalties anything but trivial
- No useful purpose in a nominal penalty, law - “well-deserved disrepute”

Question 7

R v Prince [1875]

Answer 7

Brett J’s dissenting judgement - General MR principle

Question 8

Sweet v Parsley

Answer 8

Lord Diplock - “The regulation of a particular activity involving potential danger to public health, safety or morals

Question 9

CC v Ireland (No.1) - Issue of whether the s 1(1) offence permitted a defence of reasonable mistake as to age

Answer 9

• Majority = AL - “the commonly accepted interpretation of the section”
• Denham J - MR presumption ensures just process, Article 38.1

Question 10

CC v Ireland (No.2) - Issue of whether the strict liability nature of the s 1(1) offence (as determined in the first CC case) was constitutional

Answer 10

Hardiman J:
- Social stigma including Sex Offenders Register
- Similarity with Re Employment Equality Bill in s 1(1) of the 1935 Act - Criminalises the mentally innocent; no balance
- R v City of Sault Ste Marie and Keane J’s dissent in Shannon
- Life imprisonment potential penalty without mental guilty - Offends State protection obligation of an individual’s liberty and dignity under Article 40.3.1
- Right of an accused not to be convicted of a true criminal offence in the absence of mens rea - “Wholly abrogated”
- LRC - “Genuine belief” defence recommendation

Question 11

Reformed law after CC v Ireland (No.2)

Answer 11

Current law: Sections 2 and 3 of the Criminal Law (Sexual Offences) Act 2006, as substituted by sections 16 and 17 of the Criminal Law (Sexual Offences) Act 2017

Offences of sexual act with a child with defence of reasonable mistake as to age (harder standard to satisfy than honest mistake)

Question 12

S(Z) v DPP [2013]

Answer 12

The statutory rape offence relating to girls aged between 15 and 17 [s2(1) of the 1935 Act] was declared unconstitutional by the Supreme Court.

Question 13

Reilly v Judge Patwell

Answer 13

McCarthy J:
- Litter Pollution Act 1997
- McAdam v Dublin United Tramways
- Maguire v Shannon Regional Fisheries Board (Lord Scarman’s fifth condition satisfied)
- Lord Scarman’s five principles from Gammon Ltd
- Keane J’s dissent in Shannon Regional Fisheries Board v Cavan County Council
- CC v Ireland - SL/AL distinction
- Lord Reid in R v Warner - Quasi-criminal offences, don’t offend sense of justice
- Lord Diplock in Sweet v Parsley - Control and AL
- 8 criteria for SL/AL distinction
- Current case - Full application; Summary = Regulatory as little social; stigma and upper limit to the monetary penalty; enforcement difficulties; social consequences - “Litter-free country”

Question 14

Minister for the Environment v Leneghan (HC)

Answer 14

Hedigan J:
- Endorsed McCarthy J’s 8 criteria
- Current case = AL - lower MG and SS, important regulatory function; social and political interest as EU obligations to protect Special Protection Areas; enforceability difficulty otherwise (intention/subjective recklessness)

Question 15

O’Connor v O’Neill [2011] IEHC 118

Answer 15

The High Court held that the statutory offence of refusing to provide a breath specimen (up to £1000 fine and/or 6 months imprisonment) was one of strict liability.

The Court strongly relied on the case of DPP v Behan (2003), which had held the offence to be one of strict liability.

[Strict because a defence is available where the accused satisfies the court that there was a special and substantial reason for the refusal or failure to provide the sample]

No mention of Reilly or Leneghan.

Question 16

DPP v Ebbs (CCA)

Answer 16

O’Donnell J:
- Importance of mens rea - Clear language if Oireachtas intention to remove
- TJ not disccusing knowledge rrequirement incorrect

Question 17

National Transport Authority v Beakhurst [2020] (HC)

Answer 17

Barr J:
- Lord Scarman’s five principles in Gammon (Hong Kong Limited) v. Attorney General of Hong Kong endorsed in Maguire and Keane J in Shannon
- Keane J’s endorsement of Dickinson J approved in Leneghan
- Regulatory offences activity doer/public protection importance
- Shannon Regional Fisheries Board v. Cavan County Council case, Keane J - AL objective to encourage greater vigilance
- McCarthy J’s 8 criteria from Reilly v Patwell
- Ebbs similarity claim rejection
- Due diligence defence available but not didn’t know as “premium on ignorance”, incentivize to avoid making enquiries

Question 18

Gammon (Hong Kong) Ltd v AG of Hong Kong

Answer 18

Lord Scarman’s five principles:
“(1) MR Presumption for criminal offences;

(2) the presumption is particularly strong where the offence is “truly criminal” in character;

(3)Statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;

(4) Can only be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;

(5) Must be shown that AL will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act”.

Question 19

Re Employment Equality Bill [1996] (SC)

Answer 19

• Procurer – Guilty mind; not so for the employer
• Master liability for servant’s actions in CL – Proprietor of a newspaper for newspaper publications (Libel Act 1843) and public nuisance
• Huggins
• Publican exception – Police Commissioners v Cartman
• Department of Agriculture and Technical Instruction (KB) – Cherry LCJ = General rule but exceptions, especially regulatory provisions expressly in statutes for ensuring fair and honest dealings by retailers, regulations enforced by government-appointed inspectors
• Current case – Not a regulatory offence – Prison sentence or fine, stigma, disproportionate
• Sweet v Parsley – Lord Reid = the public scandal of convicting on a serious charge persons who are in no way blameworthy”
• Constitutional supremacy contrasts with parliamentary supremacy in UK
• “The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38.1 of the Constitution and also repugnant to the provisions of Article 40.1 of the Constitution”