No Fault and Strict Liability Flashcards
Strict liability offences
Offences where mens rea is not required in respect of at least 1 aspect of actus reus.
Strict liability offences - cases
Pharmaceutical Society of GB - for all strict liability offences, it must be proved that the defendant did the relevant actus reus and that it was voluntary.
Absolute liability
No mens rea is required and actus reus does not have to be voluntary. Absolute liability involves ‘status offences’, offences where actus reus is a ‘state of affairs’. The defendant is guilty because they had ‘been found’ in certain situations.
Absolute liability - cases
Larsonneur - absolute liability
Winzar - courts will always start with the presumption that Mens Rea is present
Prince, Hibbert- issue was whether the defendant knew if he was taking a girl from her father’s ‘possession’
Due diligence
Where the defendant has done all within their power to not commit an offence. The defendant can be convicted if their voluntary act inadvertently caused a prohibited consequence. This is so even if the defendant was totally blameless in respect of the consequence.
Due diligence - cases
Tillstone - still a strict liability offence even if he took reasonable care to not commit the offence
Shah and shah - due diligence
No defence of mistake
The defendant will still be guilty even if they made a genuine mistake.
No defence of mistake - case
Cundy
Strict liability law - creation
Nearly all strict liability offences have been created by statute law - it’s very rare in existing common law offences.
Existing common law offences of strict liability
- public nuisance
- criminal libel
- outraging public decency
Outranging public decency - case
Gibson and Sylveire - strict liability offence = didn’t have to be proven whether the defendant intended to outrage public decency or if the defendant was reckless with conduct
Statutory offences and strict liability
Over half of all statutory offences are ones of strict liability - this amounts to over 3500 offences. Strict liability offences created by an act of parliament will not contain any words regarding mens rea in their definition.
To be or not to be - strict liability
In order to decide whether an offence is of strict liability, the courts start by assuming mens rea is required, but prepared to interpret it as strict liability if parliament has expressly or by implication indicated this in relevant statute. Words indicating mens rea: ‘knowingly’, ‘intentionally’, ‘maliciously’ or ‘permitting’.
To be or not to be - criticism
In many instances, a section in an act of parliament is silent on whether mens rea is needed or not. Where an act does not include any words indicating mens rea, judges will start by presuming all criminal offences require mens rea.
Criticism - case
Sweet v. Parsley - no mens rea = no conviction
Presumptions - strict liability offences
The privy council started with presumptions that mens rea is required before a person can be held guilty of a criminal offence and this presumption applies to statutory offences and 4 other factors.
Presumption - case
Gammon
Presumption- factors
- presumption can only be displaced if clearly or necessary implication the effect of words of the statute
- presumption is particularly strong where offence is ‘truly criminal’ in character
- presumption if statute is concerned with issues of social concern, such as public safety
- strict liability should only apply if it will help enforce law by encouraging vigilance to prevent commissions of prohibited acts
Presumption- conclusion
Where the particular offence has no words of intention, but other sections in the act do, then it is likely that this offence is a strict liability offence.
Presumption - case
Storkwain - relevant section was quiet on mens rea, it was treated as a strict liability offence
Quasi-criminal offences
Regulatory offences - offences regulatory in nature, not thought of as being ‘truly criminal’ and are, therefore, more likely to be interpreted as being of strict liability.
Quasi-criminal offences - cases
Tillstone - selling food
Cundy - selling alcohol
Gammon - building regulations
Shah and Shah - selling lottery tickets to an underage child
Woodward - regulations preventing pollution from being formed
Strict liability and imprisonment
Where an offence carries a penalty of imprisonment, it is more likely to be considered ’truly criminal’ and less likely to be interpreted as an offence of strict liability.
‘Truly criminal’ cases
DPP - ‘the more serious the offence, the greater was the weight to be attached to the presumption of mens rea’
Social concern
Even transmitting an unlicensed broadcast has been held to be a matter of strict liability.
Social concern - case
Blake - convicted on the basis that the offence is of strict liability
Would strict liability promote enforcement of the law?
If making the offence one of strict liability would not help law enforcement, then there is no reason to make the offence strict liability one (Lim Chin Aik).
Justifications for strict liability
- Policy issues
- Social utility
- Easier to enforce
- Saves court time
- Parliament can provide a ‘due diligence’ defence where this is thought to be appropriate
- Lack of blameworthiness can be taken in account when sentencing
Policy issues
Many statutory offences are aimed at preventing danger or other problems to the public; risks of danger are thought to outweigh the defendant’s individual rights as it’s more important to protect the public.
Social utility
Making an offence one of strict liability promotes greater care over these matters by encouraging higher standards in such matters. Failure may cause risk of life or death to large numbers of the general public. However, this may be counter productive; if people realise they could be prosecuted even if they took every possible care, they may be tempted to not take any precautions at all.
Arguments against strict liability
- Imposes liability on people who are not blameworthy
- Those unaware of risks may be guilty
- No evidence that it improves standards
- Imposition is contrary to human rights
- Some strict liability cases carry a social stigma
Guilty though unaware of risks - case
Environment agency - company held liable for unknown leak
Contrary to human rights - case
R v. G - offence was of strict liability even if it could lead to custodial sentence
Main problem
There is no way of knowing whether parliament decided to make an offence a strict liability or not.
To solve the main problem
- parliament should always state expressly and not rely on using complicated rules of interpretation to decide
- require each offence to have a defence of ‘due diligence’
- rule out that no offence carrying the penalty of prison can be of strict liability
- removing regulatory offences from the criminal system; instead treated as administrative issues (does not apply to mainstream offences of strict liability, those must remain in the criminal law with the risk of injustice)
