The case of Gommon (Hong Kong) LTD V Attorney General for Hong Kong was a House of Lords case. Lord Garmon sets out the criteria for strict liability offences. The first presumption being that the mens rea must be required before a person can be found guilty of a criminal offence. The second presumption being that if the offence is ‘truly criminal,’ as per the case of B V DPP, then judges will decide it not one of the strict liability offences. The third presumption being that the offence is a statutory offence and it must be clear and have an implication of the effect of a statute. The fourth presumption being that only when the statute involves social concern, this is the only time it can be displaced. Lastly, the fifth presumption being that the mens rea will stand unless it can be shown that by having it is as a strict liability offence, it would have the effect to encourage people being more vigilant and knowing the difference between right and wrong.
Difficulties arise when the legislation is unclear with regards to the mens rea. This is significantly the problem when the Act of Parliament does not include words which indicate the mens rea. However, they must assume that the mens rea is required especially in criminal offences as per the case of Sweet V Parsley.
By having strict liability offences, it is designed to protect the public. For example, selling unfit food for human consumption would be considered as a harmful offence to others. Therefore, it is vital that big companies must employ lawyers to work alongside them to educate and ensure they do not carry any strict liability offences out. This is because, due to the amount of offences there are for strict liability, they can easily be breached as no mens rea is required. Also, if one does not know of their mistake, it would not be considered as reasonable in the eyes of the law. This illustrates how harsh strict liability offences are as does the case of R V G.
Another reason as to why strict liability offences are being created is because the offence itself would be considered as petty and long submissions concerning mens rea would waste court time and ones money. This is because more people are likely to plead guilty. However, if the defendant is not blameworthy, then this can be taken into account when sentencing as a mitigating factor. But then this would make those who are not blameworthy guilty of the offence committed. This is seen in the case of Harrow London Borough Council V Shah.
Another reason as to why these offences are created is because the offence is socially dangerous and therefore, the activity alone should be outlawed. In particular, courts come down harder on areas which are causing social concern at a particular time. Therefore, they can be seen as inconsistent.
As illustrated in the case of Winzar V Chief Constable of Kent, there is no need to prove fault. However, strict liability offences illustrate injustice. This is because it goes against the principle that criminal law punishes fault. By having the mens rea difficult to prove, this can be seen as morally doubtful.
Even though liability is strict; it is not absolute as a defence maybe available. Defences such as duress; where one is being forced to commit an act, or automatism which is an act done by a person who is not conscious of what he is doing. The case of R V Kumar, illustrates that even though the offence was one of strict liability a defence was available.
To conclude with, strict liability requires no mens rea, therefore they provide injustice. This has been seen in the case of Larsonneur and Winzar V Chief Constable of Kent. Also, because these are small offences, some may feel that they should plead guilty even though they are not blameworthy. This can also be seen as injustice as one didn’t have the intention to commit it. This was illustrated in the case of Harrow London Borough Council V Shah. However, by having these sorts of offences, it saves court time as well as money.
