11- No Fault and Strict Liability

Question 1

What are strict liability offences?

Answer 1

Offences where mens rea is not required for an offence, only the actus reus.

Question 2

What is an example of strict liability offences?

Answer 2

Pharmaceutical Society of Great Britain v Storkwain Ltd (1986)

Question 3

What are the requirements of actus reus for strict liability offences?

Answer 3

For nearly all of these offences, it must be proved that D did the relevant actus reus, and that it was voluntary.

Question 4

What are crimes of absolute liability?

Answer 4

In some rare cases D is found guilty even though the actus reus was not voluntary. Mens rea isn’t required either.

It involves ‘status offences’, where the actus reus is a state of affairs. D is liable bc they have been found in a certain situation.

Question 5

What conditions must apply for an offences to be of absolute liability?

Answer 5

1. Offence doesn’t require mens rea

2. No need to prove that D’s actus reus was voluntary.

Question 6

What 2 cases demonstrate cases of absolute liability?

Answer 6

1. R v Larsonneur (1933)

2. Winzar v Chief Constable of Kent (1983)

Question 7

What 2 cases illustrate the idea of not requiring mens rea for part of an offence (strict liability)?

Answer 7

1. R v Prince (1875)
2. R v Hibbert (1869)

In both cases the charge against D was that he had taken an unmarried girl under the age of 16 out of the possession of her father, against his will, contrary to s55 of OAPA

Question 8

What is meant by no fault?

Answer 8

Actus reus must be proved and D’s conduct must be voluntary.

However, D may be convicted if voluntary act inadvertently caused a prohibited consequence, even though D was totally blameless in respect of the consequence?

Question 9

Which case illustrates no-fault strict liability?

Answer 9

Callow v Tillstone (1900)

Question 10

What is ‘due diligence’?

Answer 10

Where D has done all that was within their power not to commit the offence.

Question 11

What is meant by defence of ‘due diligence’?

Answer 11

For some offences statute provides a defence of diligence, which means D will not be liable if they can show that they did all that was within their power not to commit the offence.

There does not seem to be a sensible pattern for when Par decides to include a ‘due diligence’ defence and when it does not.

Question 12

Which case shows that the D’s took all reasonable steps to prevent an offence but were still guilty bc there was no ‘due diligence’ defence available?

Answer 12

Harrow LBC v Shah and Shah (1999)

Question 13

What is meant by no defence of mistake?

Answer 13

Another feature of strict liability offences. Defence of mistake not available bc if it was, D would be acquitted when they made an honest mistake.

Question 14

Which 2 cases illustrate the defence of mistake?

Answer 14

1. Cundy v Le Cocq (1884)

2. Sherras v De Rutzen (1895)

Question 15

How are offences of strict liability usually created?

Answer 15

By statute

Question 16

What are the only 3 existing common law offences of strict liability?

Answer 16

1. Public nuisance
2. Criminal libel
3. Outraging public decency

First 2 probably don’t require mens rea, but there are no modern cases.

Outraging public decency was held to be strict liability offence in Gibson and Sylveire (1991)

Question 17

Explain strict liability in statute law

Answer 17

Over 1/2 of all statutory offences are of strict liability (over 3,500) offences.

Most are regulatory (involving matters such as regulating food, alcohol, prevention of pollution etc)

Courts will look at a number of factors before deciding that a statutory offence is one of strict liability

Question 18

How is strict liability interpreted by the courts?

Answer 18

It is an area where the courts will use statutory interpretation.

One of the presumptions of statutory interpretation in relation to strict liability is the presumption of mens rea

Question 19

Explain the presumption of mens rea by the courts

Answer 19

Courts start by assuming that mens rea is required, but are preparede to interpret the offence as one of strict liability if Par has indicated it is.

Question 20

What is the courts’ first rule in deciding whether an offence is of strict liability?

Answer 20

Where an AofP includes words htat indicate mens ra (ex: maliciously, knowingly, intentionally…) the offence requires mens rea and is not of strict liability.

Where there are no express words indicating mens rea or strict liability, courts will have to decide which offences are ones of strict liability.

Question 21

What was made clear in Sweet v Parsley?

Answer 21

In Sweet v Parsley (1969) it was made clear that where an AofP does not include any words indicating mens rea, judges will start by presuming that all criminal offences require it.

Question 22

What are the Gammon Tests?

Answer 22

In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984) it was necessary to decide whether the offence was one of strict liability.

Privy Council started with the presumption of mens rea.

And went on to give 4 other factors to be considered:

1. Presumption of mens rea can only be displaced if this is clearly or by necessary implication the effect of the words of the statute.
2. Presumption particularly strong where the offence is truly criminal in character
3. Presumption can only be displaced if statute is concerned with an issue of social concern such as public safety
4. Strict liability should only apply if it will help enforce the law and make it effective.

Question 23

What should be taken into account when looking at the wording of an Act to decide whether an offence is of strict liability?

Answer 23

Where other sections allow for a defence of due diligence but another section does not it is a possible indicator that the offence should be of strict liability.

Question 24

What is meant by quasi-criminal offences?

Answer 24

In Gammon (1984) Privy Council stated that presumption of mens rea required is particularly strong where the offence is ‘truly criminal’ in character.

Regulatory offences are not considered truly criminal and are therefore more likely to be of strict liability.
Often referred as quasi-crimes, and include offences such as selling food (Callow v Tillstone (1900)), selling alcohol (Cundy v Le Cocq (1884)), building regulations (Gammon (1984)), and sales of lottery tickets to underaged (Harrow LBC v Shah and Shah (1999)))

Question 25

When is an offence considered ‘truly criminal’ and therefore less likely to be a strict liability offence?

Answer 25

When there is a penalty of imprisonment involved. It was an important factor in B v DPP (2000).

However, some of these offences have been made strict liability offences, such as in the case of Storkwain (1986), which involved a max 2 year sentence.

Question 26

What is meant by issues of social concern when deciding strict liability offences?

Answer 26

In Gammon (1984) the Privy Council also stated that an offence would more likely be of strict liability if it involves an issue of social concern.

Regulations in relation to food, alcohol and guns are regarded as matters of public safety.

Even transmitting an unlicensed broadcast has been held to be a matter of social concern, as decided in R v Blake (1997)

Question 27

What does the final point in the Gammon test refer to?

Answer 27

Final point in considering whether strict liability should be imposed was whether if the imposition will make the law more effective.

In Lim Chin Aik v The Queen (1963) the Privy Council decided that it was not enough to be sure that the statute dealt with a grave social evil in order to impose strict liability. Important to consider whether the imposition would help its enforcement.

Question 28

What factors can justify strict liability?

Answer 28

1. Policy issues
2. Social utility
3. Other justifications

Question 29

How can policy issues justify strict liability?

Answer 29

Many stat offences made by Par are made to protect the public. Risks of danger outweigh D’s individual rights.

+ important to protect the public

Example: stat offences connected with cars- should be in safe condition- if not, risks of causing harm to other people- therefore offences of strict liability encourage people with cars to ensure their vehicle is safe.

Question 30

How can social utility justify strict liability?

Answer 30

Main justification for strict liability- usefulness to the public as a whole, as they help protect society. (Food and building regulations etc)

However, some opponents to strict liability will argue that there is no evidence that strict liability leads to businesses taking a higher standard of care.
Others argue it’s counterproductive- if people can be prosecuted even taking every possible care, they made be tempted not to take precautions.

Question 31

What other justifications can support strict liability?

Answer 31

1. Easier to enforce as there is no need to prove mens rea
2. Saves court time as people are more likely to plead guilty
3. Par can provide a ‘due diligence’ defence where there is thought to be appropriate- softens the law
4. Lack of blameworthiness can be taken into account when sentencing

Question 32

What arguments oppose strict liability?

Answer 32

1. Liable even though not blameworthy
2. Guilty even unaware of the risk
3. Does not improve standards
4. Contrary to human rights
5. Social stigma

Question 33

How does liable even though not blameworthy oppose strict liability?

Answer 33

Main argument against strict liability- even those who have taken all possible care will be found guilty and punishment.

Happened in Harrow LBC v Shah and Shah (1999) and Callow v Tillstone (1900)- even the vet was insufficient to avoid liability.

Question 34

How does guilty even though unaware of the risk oppose strict liability?

Answer 34

In Environment Agency v Empress Car Co (Abertillery) Ltd (1998) the HoL held that D could only escape liability if they could show that the occurrence was abnormal and extraordinary.

D’s can be guilty of a happening caused by a risk of which they were unaware ex: Environment Agency v Brock plc (1998)

Question 35

How does not improving standards oppose strict liability?

Answer 35

No evidence that strict liability improves standards. In fact, if precautions against a very small risk are too expensive, company managers may decide not to pay for the precautions, as they could be more expensive.

Question 36

How does being contrary to human rights oppose strict liability?

Answer 36

This point raised in R v G (2008).

Question 37

How does social stigma oppose strict liability?

Answer 37

Case in R v G also shows that strict liability can be imposed even when it creates serious social sigma.

As a result from his conviction, D in R v G was put on the register of sex offenders. Particularly serious consequence for G.

Question 38

What are the proposals for reform of strict liability?

Answer 38

Main problem: No way of knowing whether Par has deliberately decided to make an offence one of strict liability or not. Courts need to interpret the law to decide.

Question 39

What has been suggested in order to reform strict liability offences?

Answer 39

That Par should always state whether an offence is meant to be of strict liability or not.

Draft Criminal Code suggested this could be done by including the presumption of mens rea in the code.

Another way of reforming strict liability is requiring each offence to have a defence of due diligence. This would be in line with the law in Canada and Australia.

Another way of reforming strict liability would be to have a rule that no offence including imprisonment should be of strict liability.

Another way of reforming would be removing regulatory offences from the criminal system- could be treated as administrative issues.