Strict Liability Flashcards
What needs to be found and what does not
The principle of strict liability offences is that the mens rea does not have to be proved for a criminal offence to be committed - proof of the actus reus is sufficient for a defendant to be found guilty.
Strict liability and absolute liability
Absolute liability means that no mens rea at all is required for the offence. They involve ‘status offences’ where the actus reus is a ‘state of affairs’. The defendant is liable because they have been found in a certain circumstance.
There are two conditions which apply to absolute liability offences:-
- The offence does not require any mens rea and
- There is no need to prove that the defendant’s actus reus was voluntary
How do the Courts determine whether the offence is one of strict liability
The presumption of mens rea is always the starting point for the courts and this is an issue for the court to decide; generally, this means that the court will always start by assuming that crimes require both the actus reus and the mens rea in order for the defendant to be guilty.
Case : Sweet v Parsley (1970)
The Gammon Principles
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985]
a) There is a presumption that the mens rea is required before a person can be guilty of an offence.
b) The presumption applies to statutory offences and can be displaced only if it is clearly or by necessary implication the effect of the statute
c) The presumption is particularly strong where the offence is truly criminal in character.
d) The only situation where the presumption can be displaced is where the statute is concerned with a social concern or public safety issue.
e) Even where a statute is concerned with such an issue, the presumption of mens rea still stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of a prohibited act.
Presumption of mens rea and the wording of a statute
The courts look to see whether the statute contains words such as ‘knowingly’, ‘intentionally’ or ‘recklessly’. These words make it clear that parliament intends mens rea to be proven.
Truly criminal
Offences which are regulatory in nature rather than ‘truly criminal’ are more likely to be seen as ones of strict liability. Regulatory offences are referred to as ‘quasi crimes’.
Social concern or public safety
Smedleys v Breed (1974)
R v Lemon (1979)
Greater vigilance
The courts need to ask whether imposing strict liability will make the law more effective in promoting its objectives.
Case : Warner v MPC (1969)
The defence of due diligence
A due diligence defence may be provided in certain statutes, but there is no general defence at common law, so it must be provide in the same statute as the offence. It may be pleaded where the defendant has taken care and no negligence is apparent. The burden of proof lies on the defendant. Sometimes, the defendant will be required to prove that the offence is due to the fault of a third party.
Mistake
The defence of mistake is unavailable for strict liability offences. Illustrated in:
Cundy v Le Cocq (1884)
The positives of strict liability
- Expediency
Because of the sheer volume of criminal offences, it is argued that it is too time consuming to require the prosecution to prove mens rea for every single criminal offence. The judicial system would collapse. Therefore it is necessary to make certain offences strict liability in nature. Traffic offences are examples of this.
- Difficulty of proving mens rea
Without strict liability, guilty people might escape conviction, for example large corporations, where it may be difficult to prove that someone knew what was happening.
- Promotion of care
By promoting high standards of care, strict liability protects the public from dangerous practices.
The negatives of strict liability
- Unfairness
A defendant will be convicted even if they have done all that they can to avoid the prohibited result e.g Callow v Tillstone (1900), Harrow LBC v Shah and Shah (1999). The introduction of a general due diligence defence could help here.
- Ineffective
It is debatable whether strict liability actually works. There is no real evidence it deters. The problem is that in many cases the chances of being caught and prosecuted are not high. Even where offenders are caught, it appears that the usual response of enforcement agencies is a warning letter. In fact in some areas, rather than ensuring a higher standard of care, strict liability may have quite the opposite effect: knowing that it is possible to be convicted of an offence regardless of having taken every reasonable precaution may reduce the incentive to take such precautions, rather than increase it. Justifying strict liability in the interests of protecting the public can be seen as “taking a sledgehammer to crack a nut.”
- Little administrative advantage
It is also open to debate whether strict liability really does improve expediency. Cases still have to be detected and brought to court. Although strict liability may make conviction easier, it leaves the problem of sentencing. This cannot be done fairly without taking the degree of negligence into account, so evidence of the defendant’s state of mind is still relevant.
Proposals for reform
The Law Commission in its Draft Criminal Liability (Mental Element) Bill 1978 proposed that Parliament should state whether it is creating a strict liability offence or not. This would prevent some of the confusion and inconsistency of judicial decisions.
