Strict Liability

Question 1

What is strict liability?

Answer 1

A strict liability crimes needs no mens rea, just the actus rues is sufficient for providing criminal liability. They are mainly regulatory offences such as health and safety.

Question 2

Where does strict liability offences come from?

Answer 2

There are around 4000 strict liability offences Nearly all strict liability offences are created by statutes. Strict liability offences at common law are very rare. There are only 3 common law offences: public nuisance, criminal libel and criminal contempt of court (blasphemous libel has now been removed).

Question 3

Sweet V Parsley 1970?

Answer 3

A school teacher let out her cottage to student who used it as a place to take drugs. The question was could she be liable for allowing drug taking on her premises? The court said ‘whenever a section is silent as to mens rea there is a presumption that in order to effect to the will of parliament, we must read in words appropriate to require mens rea’. This means unless the statue says this is a case of strict liability mens rea is required. The relevant drug act did not state this and so Miss Sweet was acquitted.

Question 4

Blake 1997?

Answer 4

Blake had an unlicensed radio station but was unaware that it was broadcasting to the general public. But he was found liable as it is an issue of public safety. Airwaves need to be kept clear for the use of the emergency services.

Question 5

Callow V Tillstone 1990?

Answer 5

A butcher was convicted of selling meat which was unfit for human consumption despite the fact that a vet had certified the meat as safe.

Question 6

Woodrow 1846?

Answer 6

The defendant was accused of selling adulterated milk. At the time, the defendant had made a mistake and believed he was selling pure milk. The court held that the mistake was irrelevant.

Question 7

What is absolute liability?

Answer 7

It occurs when there is no actus reus or it was involuntary and no mens rea. These cases are rare but have been known to occur.

Question 8

Winzar V Chief Constable of Kent 1983?

Answer 8

The defendant was removed from hospital by the police for being drunk. He was then arrested a found guilty of being drunk on a highway, even though the police had put him there.

Question 9

Larsonneur 1933?

Answer 9

The defendant was convicted of being found in the UK, contrary to the Aliens Order 1920, even though she had been brought forcibly back into the UK by immigration officers.

Question 10

When can strict liability be justified?

Answer 10

• protection against pollution
• it encourages corporations to take greater care against pollution
• promotion of health and safety
• the protection of public morality
• the protection of social dangers such as drugs and unlawful weapons
• expediency
• quasi crimes

Question 11

Alphacell V Woodward 1972?

Answer 11

The rivers (prevention of pollution) act 1951 made it an offence to pollute the river. They claimed they should not be penalised as they were unaware of the pollution. The court held that knowledge was irrelevant. The fact that the AR was present was enough when the defendants were penalised.

Question 12

Thames Water V Bromley Magistrates Court 2013?

Answer 12

The defendant was convicted under the Environmental Protection Act 1990 as sewage escaped into surrounding gardens, allotments and highways. The defendant argued that this was not a strict liability offence but he was convicted anyway.

Question 13

How does strict liability encourage corporations to take greater care against pollution?

Answer 13

Strict liability imposes a penalty regardless of fault and therefore increase the incentive to guard against undesirable activities. This point was emphasised by Lord Salmon who stated that strict liability ‘encourages riparian factory owners not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it.’ This point was emphasised by Smith and Pearson who stated that ‘strict liability does induce organisation organisations to aim at higher and higher standards.

Question 14

How does strict liability not encourage corporations to take greater care against pollution?

Answer 14

Brett argues that there is no evidence that a higher standard of care results from an imposition of strict liability. He argues that it may in fact act as a disincentive, if corporations can be prosecuted regardless of precautions, they may be tempted to take none whatsoever. He also points out that fines often become a tax as it is cheaper to pay the fines rather than alter bad working practices. Additionally, enforcement agencies frequently lack the resources to monitor the huge number of potential offenders. For example, there are only 900 inspectors who are responsible for reporting on over 600,000 different workplaces. Even when offenders are caught it appears that the usual response of the agency is a warning letter, only a minority are prosecuted. Strict liability is also unfair because it punishes the innocent.

Question 15

Pharmaceutical Society of Great Britain V Storkwain 1986?

Answer 15

The defendant was a pharmacist who unknowingly prescribed drugs on the basis of a forged prescription. He was convicted of the offence under the Medicines Act 1968.

Question 16

R V Lemon 1979?

Answer 16

Gay news published a poem and some drawings depicted various acts of sodomy and fellatio on the crucified body of christ. The defendant was charged with blasphemous libel. He argued that he did not intend for the material to be blasphemous. This was held to be irrelevant and strict liability was imposed. Blasphemous libel is no longer an offence.

Question 17

Warner V MPC 1969?

Answer 17

The defendant sold perfume as a side line, he collected two boxes that had been left for him and one of the boxes contained controlled drugs. The court declared his lack of knowledge to be irrelevant and he was convicted on the basis of strict liability.

Question 18

Howells 1974?

Answer 18

The defendant’s conviction for not having a firearm certificate was upheld despite the fact that he thought that the gun was an antique and did not need to have one.

Question 19

G 2008?

Answer 19

G was a 15 year old boy who had consensual sex with a 12 year old girl. He was charged with rape of a girl under 13, he argued that he believed her to be 15. This belief was irrelevant as the case was one of strict liability as declared by the Sexual Offences Act 2003. Her consent was deemed irrelevant as was his belief to her age. The House of Lords held that there was no breach of Article 6.

Question 20

Deyemi 2007?

Answer 20

The defendant was in possession of a stun gun, a prohibited weapon. He believed it to be a torch, this was irrelevant as Section 5 of the Firearms Act 1968 was held to be one of strict liability. The House of Lords held that there was no breach of Article 6.

Question 21

Expediency and strict liability?

Answer 21

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 and traffic offences are examples of this.

Question 22

How is strict liability useful for quasi crimes?

Answer 22

A quasi crime is a trivial offence which carries little or no stigma. These are otherwise known as regulatory offences. The Road Traffic Act 1984 is an example of this e.g. illegal parking and driving whilst disqualified. It is easy to justify strict liability in these circumstances as they regulate such areas without being harmful to the individual. However, Clarkson and Keating 1994 point out that the recognition of quasi crimes trivialises the offences further and many people do not view serious inconveniences such as illegal parking as criminal.

Question 23

How do the courts determine whether the offence is one of strict liability through the wording of the statute?

Answer 23

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. According to James and Smee 1955 other words such as ‘using’, ‘causing’ or ‘permitting’ indicate that a state of mind is required. In Sweet and Parsley 1970, Lord Reid stated that where there is no indication within the statute as to whether the offence is one of strict liability, the courts must presume that the mens rea is intended. ‘Where ever a section is silent as to mens rea there is a presumption that in order to give effect to the will of Parliament, we must read in words appropriate to the mens rea.’

Question 24

When the courts may rebut the presumption is laid down by Gammon Ltd V A.G for Hong Kong?

Answer 24

a) there is a presumption that the mens rea is required before a person can be guilty of an offence.
b) the presumption is particularly strong where the offence is truly criminal in character.
c) the only situation where the presumption can be displaced is where the statute is concerned with a social concern or public safety.
d) 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.
e) the courts are more likely to impose strict liability in relation to regulatory offences.

Question 25

What is the due diligence defence?

Answer 25

A due diligence defence may be provided in certain statutes. 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.

Question 26

Tesco Ltd V Nattrass 1972?

Answer 26

Radiant washing powder had been advertised on being on sale at a cheaper price than it actually was. This was due to the negligence of a store manager who had not checked shelves properly. Due diligence was allowed as a defence.

Question 27

Harrow LBC V Shah and Shah 1999?

Answer 27

The defendant owned a shop and a worker at a shop and sold a lottery ticket to a 13 year old boy who looked considerably older. The case went to appeal, the high court directed a conviction because the offence was not truly criminal and could therefore be one of strict liability. Shah did not sell the lottery ticket and was not even on the premises. He had actually instructed his staff not to sell tickets to those under the age of 16. Shah was vicariously liable.

Question 28

Is the defence of mistake avaliable for strict liability?

Answer 28

No.

Question 29

Cundy V Le Cocq 1984?

Answer 29

The defendant was convicted of selling intoxicating liquor to a drunken person. Although it was not obvious the customer was drunk and the defendant made a mistake in selling the alcohol the defence of mistake was unavailable.

Question 30

Reform proposals for strict liability?

Answer 30

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.