Strict liability- Additional notes PDF

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STRICT LIABILITY by DR. SHAMSHINA MOHAMAD HANIFA Strict liability crimes are crimes which require no proof of mens rea in relation to one or more aspects of the actus reus. Strict liability offences are primarily regulatory offences aimed at businesses in relation to health and safety. Also many driving offences are crimes of strict liability eg. speeding, driving without insurance. The use of strict liability in criminal law is controversial as it means a person may be liable where they are not at fault or have taken all reasonable care to ensure compliance of the law (See in particular Callow v Tillstone). However, the harshness of strict liability in criminal law is generally tolerated as it brings practical benefits and is often used to provide a greater level of protection to the public in areas where it is perceived that there is a need to provide such protection. As strict liability has the potential to create injustice and operate harshly, there is a general presumption that mens rea is required to impose criminal liability:

Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 According to Gammon, this presumption may be rebutted where:

1. The crime is regulatory as oppose to a true crime; or 2. The crime is one of social concern; or 3. The wording of the Act indicates strict liability; or 4. The offence carries a small penalty.

There is some overlap with the categories in that where a crime is regulatory it is often one of social concern and carries a small penalty.

1. The crime is regulatory as oppose to a true crime

Where the crime is regulatory as oppose to a true crime, the presumption of mens rea gives way to a finding of strict liability. Conversely where there is a true crime the presumption of mens rea prevails. This was seen in Sweet v Parsley [1970] AC 132 where it was held that the offence in question was a true crime and therefore mens rea was required: Sweet v Parsley [1970] AC 132

Examples of regulatory offences include healthy and safety regulations eg pollution and sale of unfit meat:

Alphacell v Woodward [1972] AC 824 Callow v Tillstone (1900) 64 JP 823 It was thought that there existed a rule on age related offences, ie that strict liability applied in relation to the age and that it was no defence if the person held a reasonable belief that the person was over the specified age: R v Prince (1875) LR 2 CCR 154

However, this was later held not to apply and if any such rule did exist, it did not survive the decision in Sweet v Parsley in relation to true crimes. See:

B v DPP [2000] 2 AC 428 R v K [2001] UKHL 41

2. The crime is one of social concern Where the crime is one of social concern then the presumption of mens rea may be rebutted. This is based on the assumption that strict liability imposes higher standards of care and provides greater levels of protection to the public. Examples of offences of social concern include driving offences eg R v Williams[2011] 1 WLR 588 as well as health and safety regulations. See Alphacell v Woodward and Callow v Tillstone.

3. The wording of the Act indicates strict liability The presumption of mens rea is rebutted by express provision in the statute excluding the requirement of mens rea. Where the statute is silent as to the requirement, the general presumption remains, however, the courts may look at other offences created under the same Act. If the other offences expressly require mens rea, the courts may well take the view that the omission to refer to such a requirement was deliberate and that Parliament intended to create an offence of strict liability. This approach was taken in the following cases:

PSGB v Storkwain Ltd [1986] 2 All ER 635 Cundy v Le Cocq (1884) 13 QBD 207

However, a different approach was taken in the following case in which the court was considering the same statute which applied in Cundy:

Sherras v De Rutzen [1895] 1 QB 918

4. The offence carries a small penalty Generally where an offence carries a small penalty, this will indicate that it is not a true crime and therefore one of strict liability. For example in the case of Williams [2011] 1 WLR 588, the offence of causing death by driving without a licence was considered to be one of strict liability as the penalty was maximum 2 years imprisonment where as the offence of causing death be reckless driving carried a maximum sentence of 14 years. However, just because an offence carries a heavy penalty does not mean that it is one requiring mens rea.

R v Prince (1875) LR 2 CCR 154

R v Howells [1977] 3 All ER 417

Arguments (or reasons) for allowing strict liability

1. Protection of the public Strict liability raises standards where the health and safety of the public is at stake and forces those in a position of responsibility to take extra precautions. For example: Sale of unfit meat - Callow v Tillstone Pollution - Alphacell v Woodward Possession of firearms - R v Howells Dangerous buildings - Gammon Driving offences- R v Williams

2.Promoting enforcement of the law Strict liability ensures more convictions are secured and does not allow people to escape liability through a fabricated account of their state of mind.

3. Deterrence/raising standards It is often argued that imposing strict liability will lead to people taking more care and act as a deterrent to others. 4. Easier to Administer The majority of strict liability offences are dealt with administratively often through the post without the need for a court hearing. Other agencies of enforcement may be involved such as the Health and Safety Executive and Environmental Agencies. If mens rea was required to proved in every case for such offences, the courts would be unable to cope with the workload.

Arguments against strict liability 1. Injustice

A person may be liable where they are not at fault and have exercised all reasonable care. This offends the natural sense of justice as illustrated in the following cases: Callow v Tillstone - The butcher was liable despite doing everything possible to have the meat checked out. R v Howells - The defendant was liable despite being unaware that he required a licence and had no intention to use the gun as a weapon PSGB v Storkwain - The pharmacist had a genuine belief the prescription was valid.

2. Strict liability does not necessarily act as a deterrent

In order to act as a deterrent, a person must have knowledge of what they are doing is wrong before being able to take steps to prevent it. In many cases the defendant is unaware of the circumstances leading to liability – see Callow v Tillstone, Alphacell v Woodward, PSGB v Storkwain.

Also speeding, which is arguably a crime which is committed more than any other, is one of strict liability. If strict liability was an effective deterrent then we would have no speeding cars on the roads.

3. Stigma

Any criminal offence carries a stigma and needs to be declared for employment purposes. It can cause immense damage to a person's or a business' reputation and therefore proof of fault should always be a requirement in establishing criminal liability....