‘Strict liability offences are contrary to fundamental legal principle. The imposition of criminal liability without reference to the state of mind of an accused can never be justified.’
Consider why and in what circumstances the court recognize the existence of crimes of strict and absolute liability.
A crime of strict liability is one where mens rea is not required in respect of at least one aspect of the actus reus. It is the imposition of criminal liability without proof of fault on the part of the defendant. This makes it an exception to the basic principle of criminal liability where actus reus and mens rea must be proved. In strict liability offences there may be no blameworthiness on the part of the defendant. This was seen in the case of Callow v Tillstone where a butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet said it was but it wasn’t and the butcher was convicted of the offence of exposing unsound meat for sale. For strict liability, all the prosecution needs to be proved is that the defendant committed a voluntary act.
In comparison to absolute liability as no mens rea is required for the offence and here is no need to prove that the defendant’s actus reus was voluntary. A case that illustrates this is Larsonneur where the defendant was ordered to leave the UK so she went back to Eire. However, the Irish police deported her back to the UK against her will and she was arrested for being an ‘alien’. These offences are very rare and involve offences where the actus reus is a state of affairs. This means that the defendant is liable because they have been found in a certain situation.
Nearly all strict liability offences have been created by stautes and are regulatory offences in nature. Strict liability offences were created as there was an increase in regulatory legislation and there were growing difficulties with enforcement. Therefore, the courts decided to do away with the requirement of mens rea in many cases where there were no express words in the statutes requiring proof of mens rea.
Judges interpret the definition of the offence in the act and although there is always a presumption that mens rea is required, judges are prepared to interpret the offence as one of strict liability if Parliament has not indicated any mens rea word in the relevant section of the act. If the statute includes certain words or expressions such as ‘wilfully’ or ‘intentionally’, then the offence requires mens rea and is not one of strict liability. However if the act makes it clear that mens rea is not required then the offence will be one of strict liability. This was seen in Sweet v Parsley, where the courts presumed mens rea was required because in their interpretation of the offence, Parliament did not mention the need for mens rea.
In Gammon, Lord Scarman gave other factors to be considered by judges when deciding if an offence is one of strict liability. Firstly, the presumption of mens rea is displaced if the statutes clearly say so. However, the presumption of mens rea is required if the offence is truly criminal in character. This occurred in B v DPP where the D’s conviction of inciting a child under 14 to commit an act of gross indecency was quashed by the House of Lords, who argued that mens rea was required for this offence. Lastly, presumption is displaced if the statute is concerned with issues of social protection and public safety, which is why many regulatory offences are ones of strict liability. In Alphacell, the company was charged with causing polluted matter to enter a river when pumps they installed failed, even though there was no evidence either that the company knew of the pollution or that it had been negligent. The House of Lords held it to be one of strict liability and the company were found guilty because it was important that rivers should not be polluted.
For some offences the statute provides a defence of ‘due diligence’ which means that the defendant will not be liable if they can show that they did all that was within their power not to commit the offence. However, there is currently no sensible pattern for when Parliament decides to include a ‘due diligence’ defence or does not. In Harrow LBC v Shah and Shah, the staff of the defendant sold a lottery ticket to someone under 16. Magistrate dismissed the charges but the Divisional Court held that the offence did not require any mens rea and the act of selling the tickets to someone under 16 was enough to make the defendants guilty, even though they had done their best to prevent this happening in their shop.
Another feature of strict liability offences is that the defence of mistake is not available. In Cundy the defendant was charged with selling intoxicating liquor to a drunken person. Even though there was evidence that the defendant had not noticed that the person was drunk, the magistrate held that the offence was complete in proof that a sale had taken place to a drunk person and convicted the defendant. The lack of these two defences for strict liability cases means that I can be unjust as in the cases for Cundy and Harrow LBC, the defendants were unaware that an offence had been committed and were blameless.
This is reflected in the case of Prince where the defendant had taken an unmarried girl under 16 out of the possession of her father, thinking that she was 18. He was convicted of taking an unmarried girl under 16 out of the possession of her father because the offence doesn’t require mens rea for at least part of the actus reus and is thereby one of strict liability. On the other hand, in Hibbert the defendant met a 14 year old girl on the street and had sex with her but was acquitted because it was not proved that he had intention to take her away from he father and mens rea is required for this aspect. The case of Hibbert shows that even though one aspect of the offence was strict liability, mens rea was required for the main aspect. This provides a protection for some defendants who were unaware an offence had been committed and were blameless. However it also shows an inconsistency in the courts attitudes towards strict liability because even though Hibbert occurred before Prince, Prince was still found guilty.
Nevertheless the main reason for the creation of strict liability offences is to protect the public and this protection is needed in many different types of situations. Strict liability is easier to enforce as there is no need to prove mens rea and therefore saves court time as people are more likely to plead guilty. Also, as seen in Hibbert, allowances for levels of blameworthiness can be made in sentencing.
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