Strict Liability Flashcards
Gammon (Hong Kong) Ltd v Attorney General 1985
D were involved in building works in Hong Kong.
Part of the building they were constructing fell down. And it was found that the collapse had occurred because the builders failed to follow the original plans exactly.
-Hong Kong building regulations prohibited deviation from plans and defendants were charged with breaching the regulations.
On appeal they argued they were not liable because they had not known that the changes they made were substantial ones.
-the Privy Council held that the relevant regulations created offences of strict liability and convictions upheld.
Strict liability
Offences which do not require mens rea or do not require mens rea to attach to an element of the actus reus.
-most of these offences have been created by statute.
Lord Scarman in Gammon (Hong Kong) v A-G 1985
Scarman confirmed that there is always a presumption of law that mens rea is required before a person can be held guilty of a criminal offence.
This presumption was reaffirmed very strongly by House of Lords in B(a minor) v DPP 2000.
B (a minor) v DPP 2000
Boy was charged with inciting a child under the age of 14 to commit an act of gross indecency.
- both the trial judge and Court of Appeal ruled that this was a strict liability offence and that there was therefore no defence available that the boy believed the girl to be over 14.
- however House of Lords stated that in order to rebut the presumption that an offence required mens rea there needed to be a COMPELLINGLY CLEAR IMPLICATION THAT PARLIAMENT INTENDED THE OFFENCE TO BE ONE OF STRICT LIABILITY- the test is whether it is a necessary implication.
House of Lords confirmed its reluctance to find strict liability offences in R v K 2001.
Prince 1874
-B v DPP & R v K have thrown out Prince, a similar offence against an underage girl, had been treated as a case of strict liability.
However House of Lords described Prince as unsound and a relic from an age dead and gone. And in R v K it was described as a spent force.
R v G 2008
The presumption that mens rea is required will be rebutted if Parliament intended to creat a strict liability offence.
- s5 SOA03 was held by House of Lords that statutory rape was a strict liability offence.
- the offence is committee when a man has sexual intercourse with a child under 13.
4 categories which displace the presumption that mens rea is required.
*Regulatory Offence
Regulatory offence
- one in which no real moral issue is involved and usually one for which the maximum penalty is small.
- In Gammon it was stated that the presumption that mens rea is required was less strong for regulatory offences than for truly criminal offences.
Sweet v Parsley 1970
Draws the distinction between true crimes and regulatory offences.
- Sweet was a teacher who rented the house to tenants and rarely spent any time there.
- unknown to her the tenants were smoking cannabis on the premises.
- when they were caught she was found guilty of being used for the purpose of smoking cannabis, contrary to the Dangerous Drugs Act 1965.
- Sweet appealed on the ground she knew nothing about what the tenants were doing and could not reasonably have been expected to have known.
- was held that it was a true crime, they held that it was not a strict liability offence, and since Sweet did not have necessary mens rea her conviction was overturned.
Lord Reid: social stigma v true crimes.
Lord Reid: acknowledged that strict liability was appropriate for regulatory offences or quasi crimes- offences which are not criminal in any real sense and are merely acts prohibited in public interest.
-kind of crime to which real social stigma was attached should usually require proof of mens rea as in the case of such offences it was not in the public interest that an innocent person should be prevented from proving their innocence.
True crimes?
Courts have never laid down a list of those offences which will be considered regulatory offences rather than true crimes.
-regulatory offences= created by rules on hygiene and measurement standards within food and drink industry.
Issues of social concern
Gammon: where a statute is concerned with an issue of social concern , and the creation of strict liability will promote the purpose of the statute by encouraging potential offenders to take extra precautions against taking prohibited act, the presumption of mens rea can be rebutted.
-Types of offences that fall into this category cover behaviour which could involve danger to the public but not carry same level of social stigma as crime such as murder.
- see breach of building regulations in Gammon.
- pollution.
R v Blake 1996
The D was accused of making broadcasts on a pirate radio station and was convicted of using wireless telegraphy equipment without a licence contrary to s1(1) of a Wireless Telegraphy 1949.
Conviction was upheld by CA which stated that offence was one of strict liability - as had been created in the public interest given the interference with the operation of the emergency services that could result from unauthorised broadcasting.
Strict liability crime despite the classification of ‘truly criminal” and finding the presumption of mens rea particularly strong- strict liability prompted by concerns to public safety.
Harrow London Borough Council v Shah 1999
Offence of selling National Lottery tickets to person under age of 16 was found to be an offence of strict liability, (as a regulatory offence even though the penalty was up to two years imprisonment).
Divisional Court justified this by stating that legislation dealt with an issue of social concern.
Wording of the Act
Gammon states that the presumption that mens rea is required for a criminal offence can be rebutted if words of statute suggest that strict liability is intended.
(As it is the courts job to give effect to the intention of parliament as expressed in statute)
