No Fault and Strict Liability

Question 1

Strict liability offences

Answer 1

Offences where mens rea is not required in respect of at least 1 aspect of actus reus.

Question 2

Strict liability offences - cases

Answer 2

Pharmaceutical Society of GB - for all strict liability offences, it must be proved that the defendant did the relevant actus reus and that it was voluntary.

Question 3

Absolute liability

Answer 3

No mens rea is required and actus reus does not have to be voluntary. Absolute liability involves ‘status offences’, offences where actus reus is a ‘state of affairs’. The defendant is guilty because they had ‘been found’ in certain situations.

Question 4

Absolute liability - cases

Answer 4

Larsonneur - absolute liability
Winzar - courts will always start with the presumption that Mens Rea is present
Prince, Hibbert- issue was whether the defendant knew if he was taking a girl from her father’s ‘possession’

Question 5

Due diligence

Answer 5

Where the defendant has done all within their power to not commit an offence. The defendant can be convicted if their voluntary act inadvertently caused a prohibited consequence. This is so even if the defendant was totally blameless in respect of the consequence.

Question 6

Due diligence - cases

Answer 6

Tillstone - still a strict liability offence even if he took reasonable care to not commit the offence
Shah and shah - due diligence

Question 7

No defence of mistake

Answer 7

The defendant will still be guilty even if they made a genuine mistake.

Question 8

No defence of mistake - case

Answer 8

Cundy

Question 9

Strict liability law - creation

Answer 9

Nearly all strict liability offences have been created by statute law - it’s very rare in existing common law offences.

Question 10

Existing common law offences of strict liability

Answer 10

• public nuisance
• criminal libel
• outraging public decency

Question 11

Outranging public decency - case

Answer 11

Gibson and Sylveire - strict liability offence = didn’t have to be proven whether the defendant intended to outrage public decency or if the defendant was reckless with conduct

Question 12

Statutory offences and strict liability

Answer 12

Over half of all statutory offences are ones of strict liability - this amounts to over 3500 offences. Strict liability offences created by an act of parliament will not contain any words regarding mens rea in their definition.

Question 13

To be or not to be - strict liability

Answer 13

In order to decide whether an offence is of strict liability, the courts start by assuming mens rea is required, but prepared to interpret it as strict liability if parliament has expressly or by implication indicated this in relevant statute. Words indicating mens rea: ‘knowingly’, ‘intentionally’, ‘maliciously’ or ‘permitting’.

Question 14

To be or not to be - criticism

Answer 14

In many instances, a section in an act of parliament is silent on whether mens rea is needed or not. Where an act does not include any words indicating mens rea, judges will start by presuming all criminal offences require mens rea.

Question 15

Criticism - case

Answer 15

Sweet v. Parsley - no mens rea = no conviction

Question 16

Presumptions - strict liability offences

Answer 16

The privy council started with presumptions that mens rea is required before a person can be held guilty of a criminal offence and this presumption applies to statutory offences and 4 other factors.

Question 17

Presumption - case

Answer 17

Gammon

Question 18

Presumption- factors

Answer 18

• presumption can only be displaced if clearly or necessary implication the effect of words of the statute
• presumption is particularly strong where offence is ‘truly criminal’ in character
• presumption if statute is concerned with issues of social concern, such as public safety
• strict liability should only apply if it will help enforce law by encouraging vigilance to prevent commissions of prohibited acts

Question 19

Presumption- conclusion

Answer 19

Where the particular offence has no words of intention, but other sections in the act do, then it is likely that this offence is a strict liability offence.

Question 20

Presumption - case

Answer 20

Storkwain - relevant section was quiet on mens rea, it was treated as a strict liability offence

Question 21

Quasi-criminal offences

Answer 21

Regulatory offences - offences regulatory in nature, not thought of as being ‘truly criminal’ and are, therefore, more likely to be interpreted as being of strict liability.

Question 22

Quasi-criminal offences - cases

Answer 22

Tillstone - selling food
Cundy - selling alcohol
Gammon - building regulations
Shah and Shah - selling lottery tickets to an underage child
Woodward - regulations preventing pollution from being formed

Question 23

Strict liability and imprisonment

Answer 23

Where an offence carries a penalty of imprisonment, it is more likely to be considered ’truly criminal’ and less likely to be interpreted as an offence of strict liability.

Question 24

‘Truly criminal’ cases

Answer 24

DPP - ‘the more serious the offence, the greater was the weight to be attached to the presumption of mens rea’

Question 25

Social concern

Answer 25

Even transmitting an unlicensed broadcast has been held to be a matter of strict liability.

Question 26

Social concern - case

Answer 26

Blake - convicted on the basis that the offence is of strict liability

Question 27

Would strict liability promote enforcement of the law?

Answer 27

If making the offence one of strict liability would not help law enforcement, then there is no reason to make the offence strict liability one (Lim Chin Aik).

Question 28

Justifications for strict liability

Answer 28

- Policy issues - Social utility - Easier to enforce - Saves court time - Parliament can provide a ‘due diligence’ defence where this is thought to be appropriate - Lack of blameworthiness can be taken in account when sentencing

Question 29

Policy issues

Answer 29

Many statutory offences are aimed at preventing danger or other problems to the public; risks of danger are thought to outweigh the defendant’s individual rights as it’s more important to protect the public.

Question 30

Social utility

Answer 30

Making an offence one of strict liability promotes greater care over these matters by encouraging higher standards in such matters. Failure may cause risk of life or death to large numbers of the general public. However, this may be counter productive; if people realise they could be prosecuted even if they took every possible care, they may be tempted to not take any precautions at all.

Question 31

Arguments against strict liability

Answer 31

- Imposes liability on people who are not blameworthy - Those unaware of risks may be guilty - No evidence that it improves standards - Imposition is contrary to human rights - Some strict liability cases carry a social stigma

Question 32

Guilty though unaware of risks - case

Answer 32

Environment agency - company held liable for unknown leak

Question 33

Contrary to human rights - case

Answer 33

R v. G - offence was of strict liability even if it could lead to custodial sentence

Question 34

Main problem

Answer 34

There is no way of knowing whether parliament decided to make an offence a strict liability or not.

Question 35

To solve the main problem

Answer 35

- parliament should always state expressly and not rely on using complicated rules of interpretation to decide - require each offence to have a defence of ‘due diligence’ - rule out that no offence carrying the penalty of prison can be of strict liability - removing regulatory offences from the criminal system; instead treated as administrative issues (does not apply to mainstream offences of strict liability, those must remain in the criminal law with the risk of injustice)