Strict Liability - Term 1 PDF

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Strict Liability Lecture 4 Definition: Strict liability crime: a crime where the prosecutor does not have to prove that the defendant acted with a culpable mental state; they just have to prove that the act was commited. 

An offence of strict liability is one where it is not necessary to prove any mental state of at least one element of the actus reus

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The defendant will be found guilty if they committed the actus reas o Harrow v Shah

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The defendant must be proved to have committed the ACTUS REUS and, in most cases, this must be done voluntarily.

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“The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal.”

Absolute liability: No mens rea is required at all for such offences and the actus reas does no need to be voluntary  Winzar v Chief Constable of Kent 1983

Absolute liability Absolute liability is a form of strict liability. Absolute liability offences do not require proof of any mens rea element, but are satisfied by proof of the

actus reus only. A defendant will be guilty of such an offence if a certain set of circumstances is proved to exist. In addition, an absolute liability offence does not even require proof of a voluntary act, so the fact that the defendant committed the offence involuntarily is irrelevant and no defence. E.g. an offence of absolute liability is drink-driving

under s. 4(1) of the Road Traffic Act 1988. This offence simply requires a defendant to be driving or attempting to drive a mechanically propelled vehicle in a public place when unfit to drive through drink or drugs. There is no mens rea element. Larsonneur (1933) 24 Cr App R 74 Facts: The defendant was convicted of being illegally in the country, contrary to the Aliens Order

1920, after she was brought back to the UK in custody. - As this is an offence of absolute liability, no proof of her state of mind was necessary. The defendant’s involuntariness in entering the UK was also not relevant to her liability Absolute liability Absolute liability is a form of strict liability. Absolute liability offences do not require proof of any mens rea element, but are satisfied by proof of the

actus reus only. A defendant will be guilty of such an offence if a certain set of circumstances is proved to exist. In addition, an absolute liability offence does not even require proof of a voluntary act, so the fact that the defendant committed the offence involuntarily is irrelevant and no defence. E.g. an offence of absolute liability is drink-driving

under s. 4(1) of the Road Traffic Act 1988. This offence simply requires a defendant to be driving or attempting to drive a mechanically propelled vehicle in a public place when unfit to drive through drink or drugs. There is no mens rea element. Larsonneur (1933) 24 Cr App R 74 Facts: The defendant was convicted of being illegally in the country, contrary to the Aliens Order

1920, after she was brought back to the UK in custody. - As this is an offence of absolute liability, no proof of her state of mind was necessary. The defendant’s involuntariness in entering the UK was also not relevant to her liability Identifying offences of strict liability: Most strict liability offenses are normally minor/regulatory offense; they do not require mens rea because they do not carry the weight of moral censure/criticism like that of serious crimes. o They must be of social concern (e.g food hygiene) o It should be something that just needs regulating - called a quasi-crime; not criminal wrongs against society (e.g quality of beer in a pub) o Not a true crime (e.g murder) o It must be punished normally by a fine alone Four general principles of strict liability: 1. Lack of mens rea 2. No need for fault (Callow v Tillstone) a. Butcher convicted of selling unfit meet even tho vet said it was okay 3. No defence of “all due diligence” (Harrow v Shah) a. Staff convicted for selling lottery ticket to underage even tho they seemed older 4. No defence for mistakes (Cundy v Le Cocq)

a. the silence of mens rea in s13 of the licensing Act, allowed the courts to convict the D for selling alcohol to a drunk person even though he did not know or had no way of knowing the person was drunk Majority of strict liability offences can only be imposed by courts if parliament has made it clear there is no mens rea required for the offence (they are found in statutes), there are very few common law strict liability offences  When the statute uses a mens rea term such as intentionally, recklessly, negligently, knowingly, or willfully – the mens rea in the offence is clear and the offence is not one of strict liability. However, where the statute is not clear on the mens rea of the offence, it is left to the courts to determine whether it is an offence of strict liability or not. If Parliament has not included a mens rea requirement for a statutory offence or when legislation only sets forth an actus reaus, and is silent about the mens rea, the court has to decide whether to interpret the crime as one of strict liability or to read in a mens rea requirement. As a result of these decisions the court will read mens rea into a statue unless either:  

There is clear wording in the statute indicating that the offence is to be one of strict liability- the wording is very important as it may include terms indicating MR; or There is a 'compellingly clear' inference that the offence is to be one of strict liability.

When will a court NOT presume mens rea?: Factors that the court will consider when deciding whether there is a ‘compellingly clear’ inference that an offence is strict liability:   

If some sections of a particular statute refer to mens rea and other parts do not, the parts WITHOUT reference to mens rea are more likely to be strict liability. The court will look at similar offences to determine whether the offence in question is one of strict liability or not. The court will consider the social context of the offence → occasionally the court will look to see whether the offence is intended to be 'truly criminal'. If the offence is NOT intended to be 'truly criminal' (and, instead, intended to be a regulatory offence) the offence is more likely to be one of strict liability.

What mens rea will be presumed: 

If there is no evidence that the statute is one of strict liability, the courts will presume mens rea

The presumed mens rea will be that the defendant will have a defence if the defendant believes an aspect of the actus reus did not exist (B v DPP): o D believes the victim is 16. Here he will be not guilty. This is so even if his belief as to her age was unreasonable. o D has not thought about the age of the victim. D will be guilty. He has a defence only if he honestly believes that the victim is over 14 (in this case she told him she was 16) o D knows the victim is under 14 but believes that she is Tina (his friend’s sister) when it is in fact Becca (who looks like Tina). Here his mistaken belief does not relate to an aspect of the actus reus, and so he is guilty. Possession offences: 

These include weapons, drugs and articles used for burglary, theft, or deception. These are similar to strict liability offences because their mens rea requirement is minimal. Poession offence are problematic in two way: 1. Does possession involve an act? What if at the time someone is arrested for the possession of a prohibited thing, they are not doing anything a. This may breach the voluntary act principle: there can be no actus reus and no criminal liability unless the defendant performed a voluntary act. b. But one can argue that, possession involves an initial act of taking into possession and failing to divest the possession. 2. Does the word possess include any mens rea element? a. Warner v Metropolitan police: defendant picked up a box thinking it was perfume but it contained drugs and was charged. Court held: if a person possesses a container, he possesses the items in the container b. There are two exceptions for this rule: i. If the item has been placed in the defendant’s bag/pocket without his knowledge and without a chance to discover the item has been placed there ii. If the accused believed the container had something in it which was completely different than what was actually there but this rule is not as wide as it may seem. 1. The case of Warner was a VERY surprising finding and did not fit into the second exception above. It was held in Warner that perfume was not wholly different from drugs. Constructive liability: When D commits a certain crime, but in doing so causes more harm than was intended, and becomes liable for a more serious crime R v Hughes (2013). Other examples:

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murder (where the defendant merely intended to cause grievous bolidy harm to his victim, but death resulted as well); constructive manslaughter; causing death while driving uninsured/disqualified/unlicensed; maliciously inflicting gbh (where all that was foreseen was that the victim would suffer some kind physical harm); assault occasioning actual bodily harm; accomplice liability under the law on joint enterprise

Arguments FOR strict liability: 1. protection of the public: a. SL are generally regulatory offences (found in areas of life that pose risk to others – sale of food, medical drugs, alcohol), it is meant to encourage greater vigilance and safety (company not only take ‘reasonable care’ but do EVERYTHING it possibly can to prevent pollution), and deterring incompetence and unsafe behavior 2. Ease of proof: a. Easier for prosecution to prove because no need for MR. i. Imagine if a motorist can only be convicted of speeding if he/she knew they were speeding. This would be almost impossible to prove and court cases would take far longer. 3. Risk-creating activities: a. Those who undertake dangerous activities and harm others in the process, should not escape criminal punishment by saying they did not foresee that their act might harm someone. 4. Difficulties in convicting corporations: a. Many SL offences involves commercial activities. Companies are generally harder to prove it had a mens rea. By makes commercial actives SL, it is easier to convict them. Negligence liability could also be used to convict companies. Arguments AGAINST strict liability: 1. Violates the elements of criminal labiality: a. Criminal liability required proof of AR and MR. “An act does not make a man guilty of a crime, unless his mind is also guilty.” 2. Punishing reasonable behaviour: a. SL can be unjust and contrary to principles of fairness. It is unfair to convict defendants who acted in an entirely reasonable way but unpredictably caused harm

i. SL supporters argued that when a defendant is GENUINELY blameless they will not be prosecuted or a lower sentence will be imposed. 3. Stigma of a conviction: a. Although the penalty of a SL offence may be small, defendant may still be punished but the stigma which comes with being a convicted criminal. E.g damage their reputation or affect their livelihood 4. Alternative to strict liability: a. An alternative to criminal liability in the absence of fault, the law should impose negligent or due diligent offences. This would ensure a defendant is only convicted if he fails to meet the objective standard of a reasonable man....