All the above cases illustrate absolute liability which shows that the mens rea need not be present and the actus reus need not be voluntary. Strict Liability cases is where mens rea is not required, an example of this is in the case of Gammon (Hong Kong) V Attorney – General (1985), it was held that the starting point for the courts, is to presume that mens rea is always needed but that this presumption can be rebutted by considering four factors. In the case of Gammon (Hong Kong) V Attorney – General (1985) builders had deviated from plans and part of a building had fell down, but that is irrelevant, they deviated from plans, so that is the actus reus. The problem with English Statutes is that they don’t always state that a crime is strict liability or not. It is up to the judge using statutory interpretation such as the literal and mischief rule to decide. It is important to look at the wording and the intended meaning of parliament.
One of the four Gammon question to ask is: does the statue through the words used imply that it is strict liability? This basically means do the words ‘intentionally’ or ‘knowingly’ appear in the statue or is it ‘cause’ or ‘possession’ which would mean the crime is strict liability. The case of Alpha cell V Woodward (1972) demonstrate this where a company caused polluted matter to enter into a river. They hadn’t meant to do this and had installed a filter which became clogged with leaves, but they were the ones who had caused it. Another question to consider is, is the offence regulatory or a true crime? With regulatory offences there is generally not much stigma attached for example, speeding. The case of Sweet V Parsley (1970) held that true crimes are criminal and have a stigma attached such as losing a job because of conviction. The third question to consider is whether there is a public/social concern aspect to the crime. This may be something like selling alchol or lottery tickets to those under age as in the case of Harrow V Shah (1999). The final question to consider is what the penalty of the crime is. In the case of Gammon there was a £250,000 fine or a 5 – year prison sentence but this was very exceptional as the fines are usually small. The smaller the fine (like with speeding) the more likely a case is classed as strict liability.
In some aspects, strict liability can seem unfair as in the case of Callow V Tillstone (1990). The butcher sold bad meat but had asked his vet to check the meat to see if it was fit for human consumption. The vet said it was, so he solid it. However, it was found it was not fit for human consumption and the butcher was fined. The fine was only small, but the effect on his reputation must have been a lot greater. He had taken due care but had still committed the actus reus and so was guilty. Nowadays, there can be a defence of due diligence for certain offences. Mistake, however, is no defence. A case involved a mistake whilst selling alcohol is Cundy v Le Coq (1884), where it was evidence that the person was drunk and shouldn’t have been sold alcohol. However, a criticism of this case, is that its a very old case, and morals now are slightly different to what they would of been in the 19th Century.
There are various advantage and disadvantages to strict liability. An advantage is that it promotes care and attention but conversely some are convicted even when they have taken all reasonable steps to avoid committing an offence. A larger company continues to pay small fines as they have little impact, whereas small companies can be affected both by the fine and damage to their reputation. Once someone realises there is defence and courts start imposing larger fines, behaviour will change. A good example of this is wearing seatbelts in cars. Some years ago, lots of people would just not wear a seatbelt but since the law changed and there are lots of fine, most now wear one. Due to judges making the law this can result to undue rulings. This was seen in Lim Chin Aik V Regina (1963) and Smedley V Breed (1974).
Therefore, it is important to have a consistent approach when it comes to judges determine if a crime requires mens rea or not. Absolute liability crimes seem the most unfair but with strict liability, because it is up to judges, they can also be inconsistent and unfair.
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