In regard to strict liability crimes, the approach is just as unsure. In criminal law there is said to be strict liability when there is liability even in the absence of mens rea and even though [his] ignorance is not attributable to any default or negligence on [his] part. This creates much controversy –the questions raised are: how can punishment in cases where the defendant believed they were doing no wrong be justified, and how can mens rea, supposedly the central vehicle by which the blameworthy are identified be sacrificed? Given the controversy that surrounds strict liability it is not surprising that the law should represent an uneasy compromise between the demands of full mens rea and the desire to protect society. Sometimes mens rea appears to be dominant, and at other times it is sacrificed entirely, with the legislature continually vacillating between the two. Thus, in Pharmaceutical society of Great Britain v Storkwain ltd, an objective test was applied, Lord Goff stating that “…it [was]… clear from the Act of ’68 that Parliament must have intended that the presumption of mens rea be inapplicable…” Conversely, in Sweet v Parsley it was held that the relevant section was not an absolute offence, and the conviction be quashed, “…mens rea was an essential ingredient of the offence…” That said, it would be naïve to imagine that the plethora of statutory offences that are regarded as imposing strict liability could be transformed into offences requiring full mens rea or decriminalised. It seems clear that strict liability for most minor offences is a necessity.
The approach adopted for intention is entirely subjectivist. It is said that a defendant that wants something to happen clearly intends that result. Similarly, it would be inconceivable to apply an objectivist approach to intention, for it is the defendant’s state of mind that has to be ascertained, for the jury to infer intention.
The test for recklessness is not entirely straightforward either. By the late 70’s following Cunningham, the subjective meaning had clearly been approved, recklessness entailed the conscious running of an unjustifiable risk: “…it was necessary for the accused person either to intend to do the particular type of harm in fact done, or forseeing that such harm might be done, for him recklessly to take the risk of it…” This jurisprudence accorded in R v Stephenson [1979] where the appellant was sleeping in a hollow in the side of a straw stack, and upon getting cold lit a fire, which subsequently burnt the stack down. The defendant was a schizophrenic, his counsel arguing that this curbed his ability of being able to forsee any consequent damage.
However, in 1981 there was a radical change to the Cunningham test. The House of Lords handing down two judgements on the same day both concerned with recklessness. This change effected the test cited in Cunningham that the defendant must forsee the possibility of harm occurring. One of these was the case of Caldwell, in which Lord Diplock made the ‘amendment’ to Cunningham that a person charged with an offence…is ‘reckless as to whether any such property would be destroyed or damaged if …he does an act, which in fact creates an obvious risk, that the property will be destroyed and damaged’. Lord Diplock also asserting that the risk involved has to be obvious to “…ordinary prudent individual…” This being therefore, an objective approach. A similarly objective approach was taken in Elliot v C, where a fourteen-year-old remedial girl, threw white spirit onto the floor of a shed, which she then lighted with a match, burning the shed down. Although Lord Goff ceded that the objective test did not appear at first sight, to be appropriate to a crime such as that one, he felt himself bound to follow Caldwell.
Finally, in relation to negligence an objectivist approach is taken: “…a person is negligent if he fails to exercise such care skill or foresight as a reasonable man…” If people cause harm they will not be blamed, but if they do, where simple care and precautions could have prevented it there is a tendency to blame.
Thus, criminal law does not strictly follow either an objectivist or subjectivist approach. Given the very nature of criminal law, the mass of offences, and the many different predicaments arising out of all of those offences, it is hardly surprising that a rigid and uniform approach cannot be found.
REUBEN ANSTOCK
