Principles of criminal liability Strict Liability

Lesson Objectives I will be able to explain the meaning of strict liability, giving reasons for its use I will be able to state and explain examples of strict liability using decided cases and Acts of Parliament

The principle Crimes of strict liability are crimes where the definition of the crime includes an actus reus and no mens rea. Merely performing the act is sufficient to make a person guilty There are many crimes of strict liability, many of which are purely regulatory and are not always seen by some sections of society as ‘real’ crimes Many motoring offences are included in these crimes, and in many cases the decision to prosecute or not is seen, in part, as an indication of whether there is a truly wrongful act

Strict liability offences were originally created to make it easier to prove guilt for business-related offences In the 19th century, with the industrial revolution, there were many abuses of factory workers that were the subject of criminal law, but there were very few prosecutions, as showing mens rea on the part of the factory owner was very difficult In addition, there was a view that, as the magistrates were often factory owners as well, there was a temptation to find factory owners not guilty, and lack of mens rea was often the reason given When mens rea did not have to be proved, conviction rates increased and so did factory safety

Strict liability The vast majority of strict liability crimes are statutory offences. However, statutes do not always state explicitly that a particular offence is one of strict liability Where a statute uses terms such as ‘knowingly’ or ‘recklessly’ then the offence being created is one that requires mens rea Sometimes, particularly in more recent statutes, it may be made clear that an offence of strict liability is being created In many cases it will be a matter for the courts to interpret the statute and decide whether mens rea is required or not Sweet v Parsley (1970) – this case is not one of strict liability as the House of Lords decided that the statute did not specifically exclude mens rea

Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong (1985) – this case sets out the general criteria for a crime to be a crime of strict liability In this case the court considered the scope and role of strict liability offences in the modern criminal law The court started with the principle that in criminal law there is a presumption of mens rea. This means that it is presumed that all criminal offences require some form of mens rea unless the definition of the offence states the opposite Lord Scarman laid down the criteria upon which a court should decide whether or not it is appropriate to impose strict liability

There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence (presumption of mens rea) The presumption is particularly strong where the offence is ‘truly criminal’ in character (truly criminal) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute (statute must clearly exclude mens rea)

The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue (only for public safety or social concern) Even where a statute is concerned with such an issue, the presumption of mens rea 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 the prohibited act (encouraging greater vigilance)

Example of strict liability Many cases of strict liability result in a very minor penalty, which makes one wonder why there was a prosecution in the first place Alphacell v Woodward (1972) – here the defendant company was guilty even though the event could not be predicted. This encourages greater vigilance in business Smedleys v Breed (1974) – the defendant company was guilty, even though all reasonable care had been taken

London Borough of Harrow v Shah (2000) – this is another example of the characteristics of a strict liability offence: it is not truly criminal, but is of social concern Blake (1997) – the characteristic of strict liability in this case is that of public safety

Conclusion Strict liability offences require no mens rea. Even though these offences may seem unfair, the reasons behind strict liability usually make prosecution a just outcome. These reasons include: Easier to prove Takes less time in court Encourages compliance with the law Prevents defences being raised as an excuse Makes regulation straightforward Protects the public The exam will only ask about strict liability in theory questions. It will not be related specifically to the scenario or have to be applied to the scenario