Strict Liability. I shall look at different cases in order to justify whether the offence of strict liability is effective in promoting greater vigilance.
According to the criminal law, the actus reus and the mens rea are general requirements to constitute a criminal offence; however, where the offence is of strict liability, there is no requirement for the proof of mens rea. The negation of mens rea means that an individual may be convicted regardless of their mental state, whether they behaved reasonably or not. This has stirred up much debate on the justification of a strict liability offence as some view it as necessary to ‘promote the objects of the statute’ and is a matter of ‘social concern’; whilst others have taken the view that strict liability is too strict an offence and should be abolished. In this answer, I shall look at different cases in order to justify whether the offence of strict liability is effective in promoting greater vigilance.
Firstly, statutes often contain unambiguous wordings in guiding courts as to whether mens rea is required in the interpretation of statutes. The courts then has the discretion to determine whether there should be a presumption of mens rea in establishing an offence; the courts must consider a few factors in determining whether the offence of strict liability should be inferred from the statute. These factors includes considering whether the offence was ‘truly criminal’, whether it was of social concern, whether the gravity of the offence would stigmatise an individual and whether it is a ‘necessary implication to the purpose of the statute’.
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It is said that a quasi-criminal act is not ‘truly criminal’, in such a case, strict liability serves as a regulatory measure in preventing and discouraging the behavior of the act. There is usually less stigma attached to quasi-criminal offences so strict liability may be more easily inferred. Therefore, courts are likely to apply a strict liability offence where an offence is not ‘truly criminal’ on the basis that a criminal conviction is unlikely to stigmatise the individual. However, where it is a ‘truly criminal offence’ the courts are more unwilling to infer strict liability because of the stigma attached to a criminal conviction.
Where an individual would suffer a great extent and would be greatly stigmatized as a result of a strict liability conviction. The courts are unlikely to give a strict liability sentence but rather they are more likely to read in the requirement of mens rea. In the case of Sweet v Parsley, a woman let her farmhouse to students; upon investigation by the police, cannabis was found. Although the woman had no reason to know that there was cannabis present in her property, she was convicted under strict liability as no mens rea was required. However the House of Lords held that the stigma attached to drugs was too grave, thus mens rea should be read in. Therefore, there should be a presumption of mens rea and so Sweet’s criminal conviction was quashed.
It was also held that where the offence was of a great concern to society, the courts are unlikely to read in the requirement of mens rea, but instead give a sentence of strict liability. In Pharmaceutical Society of Great Britain v Storkwain, a pharmacist was presented a forged prescription by the patient, nevertheless the pharmacist supplied the patient with the drugs. The issue of a drug was held to be of grave ‘social concern’ and thus the pharmacist was convicted even though he had not acted unreasonably. It was held that strict liability aimed to encourage individuals, like the pharmacist, to take unreasonable care to verify prescriptions before doing an act.
It was also held that where it is a ‘necessary implication to the purpose of the statute’, it is likely that the courts would give a sentence of strict liability. In Hallow v Shah, the defendant was an employer at a National Lottery Office where he sold a ticket to a 13 years old boy. Even though the boy’s appearance gave the impression that he was over 16 years of age and the defendant had no reasons to believe that he was only 13, the defendant was still convicted. The conviction of strict liability is justified because of the purpose of the statute was to prevent gambling amongst children under the age of 16.
However, there are others who believe that a conviction of strict liability is unjust and unfair. It is held that individuals may very well be convicted without a fault element and thus would result in blaming the blameless. Convictions would also be held where an individual had not acted unreasonably and have exercised reasonable care. Furthermore, it has been viewed to be unjust in convicting individuals who were completely unaware that an offence is being completed, such as in Pharmaceutical. Plus, a conviction under strict liability would not be an effective deterrent because defendants may very well be unaware that an offence is being completed, therefore they will be unable to take steps to prevent it anyways. The element of overdeterrence associated with a strict liability conviction discourages people from engaging in socially beneficial commercial activities.
To conclude, although convictions under strict liability may seem unfair, it is ultimately necessary to protect the public from potential harm should the offence have occurred. The fact that a high standard of care is required means that society would be better protected from harms such as pollution and drunk driving. The fact that a conviction under strict liability does not require mens rea means that the law would be more easily enforced and so prevent those who have participated in a dangerous act to escape liability.