Strict Liability

Question 1

What is the general rule in regards to Actus reus and Mens rea which strict liability offences do not follow?

Answer 1

“Actus Reus non facit reum nisi mens sit rea”
(An act does not make a person guilty unless their mind is also guilty)

Question 2

What has to proven in strict liability ?

Answer 2

Only Actus reus, mens rea is not required
(Guilt simply follows completion of the prohibited)

Question 3

Why are strict liability crimes generally accepted?

Answer 3

They tend to cover relatively minor crimes (Quasi crimes) and are thought as necessary for society to run smoothly
(the greater good is deemed to outweigh the occasional injustice)

Question 4

What is the difference between Strict liability and Absolute liability?

Answer 4

Strict Liability= must be voluntarily performed
Absolute Liability= Can be involuntarily performed, known as circumstance crimes where the D’s circumstances put them in an illegal situation
e.g Larsonneur (The French national, deported to the UK)

Question 5

What are the 2 stages that make up a strict liability offence?

Answer 5

1) The choice to do the action/ conduct
2) No Knowledge is required that the act/conduct is illegal in that situation
(D needs to want to have committed the act voluntarily, but the prosecution does not need to prove that D did it with knowledge of the circumstances that made it criminal)

Question 6

What happened in the case of Storkwain?

Answer 6

D was charged for supplying drugs without a doctor’s prescription. D had supplied the drugs on a forged prescription, which was very authentic. The HL upheld the conviction as the pharmacist had voluntarily supplied the drugs but did not know of the circumstances.

Question 7

What happened in the case Shah and Shah?

Answer 7

Ds were convicted of selling a lottery ticket to someone under 16. They had performed the voluntary act, however did not have knowledge of the circumstances, the conviction was upheld.

Question 8

Why is “Due Diligence” a clue to spot strict liability offences?

Answer 8

-Statutory Defence available for strict liability offences (Must be specifically provided for within the statue that creates the offence)
-When provided it can apply to Ds who show they did all that was within their power not to commit the offence
e.g S.2 (7) Sunbeds (Regulation) Act 2010
-Parliament many decide to provide the defence within an act if they recognise that in the circumstances, D really will have tried their best to avoid the offence happening. However Parliament may feel that regards of Ds efforts if the AR happens D will still be guilty.
-Therefore the present of due diligence confirms SL but the absence does not confirm it is not
(Not a particularly clear indicator)

Question 9

Why do some people argue that the defence of due diligence should always be available to SL?

Answer 9

-Lessens the harshness as without it, it means Ds can be convicted when their voluntary act inadvertently caused a prohibited consequence

Question 10

What happened in Callow v Tillstone?

Answer 10

A butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet assured him it was okay to eat however it was actually unfit for consumption and the butcher was convicted even though the butcher had taken reasonable care to avoid committing the offence, he was still guilty.

Question 11

What was included in the draft Criminal Code 1989 by the law commission that was never enacted?

Answer 11

Due Diligence as a general defence for all SL crimes, which would make it fairer on the D

Question 12

How is the Mistake defence not being available an indicator of SL?

Answer 12

-If judges say the defence is available, then the crime is not SL and the prosecution will need to prove the D had MR to convict. As SL only requires AR to convict, therefore MR is irrelevant
(clear indicator)

Question 13

What happened in Sherras?

Answer 13

D was convicted for supplying alcohol to an on-duty police officer. At the time police officers on duty on wore an arm band, the police officer had taken off the arm band. On appeal, conviction was quashed as D was able to rely on the mistake.

Question 14

How is SL interpretated within Statue Law?

Answer 14

-Unfortunately, Parliament does not always make it clear whether an offence is SL and thus judges have learnt not to assume that the absence of MR words definitely equates to SL, however the vagueness of parliament can be a good thing as it allows for judicial discretion
e,g Hughes The offence lacked MR words and thus implied it was SL, that was just satisfied from being on the road but the judges interpretated it differently and that the prove of fault within Ds driving was also required to be guilty
-Unless explicit signs, judges can rely on statutory interpretation
=Starts with the presumption of MR and then consider the 4 factors established in Gammon

Question 15

What is the starting point when determining if an offence is SL?

Answer 15

The presumption that all criminal offences require Mens rea
-Judges do this as they are reluctant to classify an offence as SL as they are mindful of protecting the presumption and upholding Lord Coke’s maxim

Question 16

What happened in Sweet v Parsley?

Answer 16

D rented some rooms to students who smoked cannabis on her premise. She was unaware but charged for it, as the lack of MR wording made it appear to be SL. The Hl reviewed the common law before the statue was made and found that the previous approach required knowledge of the activities. HL quashed her conviction and highlighted that the presumption of MR for every offence is necessary until proven otherwise.

Question 17

What happened in the case of Gammon (1984)?

Answer 17

Ds were involved in construction work in Hong Kong. Part of the building collapsed due to failure to follow the plans exactly. Local law prohibited such deviation. Owing to the lack of MR words, it was necessary to decide whether the offence was SL. The court begun with the presumption that MR is required but went on to give 4 other factor to be considered. They decided the offence was SL.

Question 18

What is Gammon number 1of the Gammon criteria?

Answer 18

Is the crime regulatory or a true crime?
-The presumption of MR is particularly strong where the offence is truly criminal in nature e.g murder or rape have a high social stigma attached

-Whereas, regulatory crimes, often known as Quasi Crimes do not have such moral issues at stake and therefore are more likely to be interpretated as SL
Such as offences effecting:
-Selling food
-Lottery ticket sales
-Building regulations
In Sherras labelled this offences as “not criminal in any real sense but are acts which in the public interest are prohibited under penalty”
(relatively clear indicator)

Question 19

What is Gammon number 2 of the Gammon Criteria?

Answer 19

The wording of the act
-Sometimes Parliament can be helpful with its use of words whilst drafting by using clear MR words e.g Knowingly, recklessly etc
e,g Theft Act 1968 D is guilty of theft if s/he
“dishonestly….. with the intention”
-However, sometimes there are some words used that point to no Mr being required e.g Causing, not possessing, supplying
- To assist judges even further, they will not simply look at the section of the act that it is in dispute but also look at other sections
e.g Storkwain S.58 (2) Medicines Act 1968 was silent to MR so the court looked at other sections and decided that as there were express mentions of Mr in other sections Parliament must have intended for S.58 (2) to be SL
However, the presumption of MR should only be displaced by clear words in the statue or necessary implications
(relatively clear indicator)

Question 20

What is Gammon number 3 of the Gammon Criteria?

Answer 20

If SL the statue must be about social concern or public safety
Echoes Lord Diplock in Sweet- “Involving potential danger to public health, safety or morals”
This covers:
-health and safety of food and drink
-Pollution
-Road use
-Transmitting an unlicensed broadcast
(relatively clear indicator)

Question 21

What is Gammon number 4 of the Gammon Criteria?

Answer 21

Gravity of punishment
The more serious the criminal offence and the greater the punishment attached to it, the stronger the presumption of MR and thus the less likely it is not be considered SL
(relatively clear indicator)

Question 22

What happened in Alphacell v Woodward?

Answer 22

A company was charges with causing polluting matter to enter a river after the pumps which it had installed had failed. There was no evidence that the company knew of the pollution or that the had been negligent. HL decided it was SL as it is in the publics interest for the rivers not to be polluted, however did not see the need to add MR, reflected by the company only bring ordered to pay £24

Question 23

What happened in Blake?

Answer 23

D was a DJ convicted of broadcasting a radio show without a licence. He claimed he did not know he was transmitting however the CA upheld his convicted. It was justified as a “matter of social concern” as it used frequencies reserved for emergency services. The imposition of SL is felt to promote greater vigilance and care on the part of the D in order to protect public welfare.

Question 24

What happened in Smedley v Breed?

Answer 24

Smedley produced 3.5 million tins of peas, however Breed purchased a tin and found a curled up caterpillar. The odds of this happening were 1 in 3.5 million. Hl upheld the conviction, however a new defence has now been introduced to show that the D took all reasonable precautions.

Question 25

What happened in B v DPP?

Answer 25

D (a 15 year old boy) was convicted of gross indecency towards a child under 14. D had sat next to a 13 year old on a bus and asked for oral sex. He stated he believed she was over 14. D voluntarily committed the AR but did not have knowledge of the circumstances of the mistake. HL deemed it not SL due to the seriousness of the offence, the strength of the presumption of MR and the social stigma attached.

Question 26

what happened in Kumar?

Answer 26

D aged 34 picked up V at a gay club which had the policy of only admitting those aged 18 and over. V looked about 17 and willing went to the Ds flat and engaged in consensual activities, V was in fact 14. CA held that it was not SL (s.12 Sexual Offences Act 1956) and Ds honest mistake was held as a defence.

Question 27

What are the arguments for Strict Liability?

Answer 27

1) Social Benefit
Many SL offences are aimed at protecting the public from danger, the risk of such danger is thought to outweigh Ds individual rights.
-Usefulness to the public is the main justification as SL helps to protect society by promoting high standards of care.
e.g Blake (Radio broadcast, conviction was for the public benefit)
2) Easier to enforce as there is no need to prove MR
3) Save courts time as people are more likely to plead guilty
-As only the AR is proved, no social stigma, time and money often saved and many lead to guilty pleads
4)Parliament can provide a “Due Diligence” defence where appropriate
e.g S.2(7) Sunbeds (Regulation) Act 2010
5) Lack of blameworthiness can be taken into account when sentencing
-Judge sentencing can be very lenient
e.g Alphacell LTD v Woodward

Question 28

What are the arguments against Strict Liability?

Answer 28

1) Imposes guilt on people who are not blameworthy in any way
2) Inconsistence use of Due Diligence
-If the inclusion of this defence was carried out in a more consistent way, objectors to SL would be more satisfied because the intention of Parliament would be clearer
3) There is little evidence that SL actually promotes or improves standards
-Little to no evidence that it leads to a higher level of care and it could even be counter productive
-It can be cheaper to pay a fine then the initial cost if putting in contingency measures
4) Some SL offences carry stigma and risk of imprisonment
5) Sentencing can be difficult
-Can be difficult to distinguish between deliberate and the accidental offender

Question 29

State a conclusion to the clarity of the indicators of SL

Answer 29

In conclusion, the principles developed by the judiciary over recent years are quite clear. However, judges must approach the task of determining the status of the offence holistically as no single indicator is conclusive on its own. Whilst judges would sometimes benefit from Parliament being more precise, they are navigating the demands of statutory interpretation well usign their own criteria.