Is the imposition of strict liability ever justifiable in criminal law?
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Is the imposition of strict liability ever justifiable in criminal law? It is the purpose of this essay to discuss whether the implementation of strict liability within criminal law system is a necessary means for combating crime, and if there is any justification for its use. Strict liability is the placing of liability upon the defendant(s), regardless of whether or not mens rea is present. This can include instances of negligence, carelessness or accident. There are a number of arguments for and against strict liability, and this essay will identify and explore these arguments. It is often argued that by promoting high standards of care, strict liability protects the liberty of the public from dangerous practices. Barbara Wootton (Crime and Criminal Law: reflections of a Magistrates and Social Scientist, 1981, p.256-258) defends strict liability on this basis, suggesting that the objective of criminal law is to prevent 'socially damaging activities'. In support of this, it is suggested by Elliot and Quinn (Criminal Law, 2000, p.32) that- 'It would be absurd to turn a blind eye to those who cause harm due to carelessness, negligence or even an accident'. This approach appears to be stringent. One might be inclined to suggest that accident is part of human nature, and in applying strict liability to even the most honest mistakes, a satisfactory outcome may not be achieved.
Without strict liability, those genuinely guilty may escape conviction. Roe (p.211.2) tells us that obvious examples are those involving 'large corporations, where it may be difficult to prove that someone knew what was happening'. The imposition of strict liability in these instances is favourable. In many strict liability cases, the defendant is a business or corporate body, and the penalty is a usually a fine. Therefore, individual civil liberty is not under threat. Elliot and Quinn (p.33.2) also go on to tell us that where an offence is concerned with a business or corporate body, those committing the offence may well be saving themselves money, and thereby making extra profit in doing so. For example, they may be spending less time on observing safety regulations in place. If a person/body creates such risk in order to maximise profits, it can be argued that they should be held liable if that risk causes-or could cause- harm, even if there was no intention of doing so. Of course, where there are arguments for the imposition of strict liability, there are arguments against. One of the biggest arguments presented against the imposition of strict liability is that it is often criticised as being unjust, for a variety of different reasons.
Perhaps in this area, the imposition of strict liability is not affective. As Roe (p.213) tells us- 'There are alternatives to strict liability which would be less unjust and more effective in preventing harm.' Smith and Hogan (P.221) suggest the replacement of strict liability with liability for negligence. It is the opinion of this essay that this would be advantageous; this may ensure that the defendant, who perhaps was thoughtless in their actions, or those deliberately intending to commit a crime, is punished. It would not, however, punish those who were genuinely blameless. Within the legal system of Australia, there is the defence of 'all due care'. Where a crime would otherwise impose strict liability, the defendant can avoid conviction by proving that they had taken all due care to avoid committing the offence. Adopting a similar defence in this country may prove useful, counter-balancing any disadvantages for having strict liability. It is the opinion of this essay that there are occasions where the imposition of strict liability is justified, in particular areas of industry. Abolition of strict liability would ignore the numerous advantages given in this essay. It is, however, questionable whether strict liability proves a sufficient deterrent, and often, the outcomes of cases can be seen as being morally unsatisfactory.
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