There is also a great deterrent value in the implementation of strict liability. Roe (Criminal Law, 2nd ed, 2001, p.210) tells us that many offences are not handled by the Crown Prosecution Service or the police, but by ‘…special Government bodies, such as the Health and Safety Inspectorate, which checks that safety rules are observed in the workplace.’ The bodies tend to work by pressuring any potential offenders into putting right any breaches with the threat of prosecution. It is the opinion of this essay that this could be an effective method in combating the breaching of any Health and Safety rules; strict liability may allow enforcement agencies to ‘Strengthen their position’ (Roe, p.211.1) as potential offenders are aware that if any prosecution is brought against them, there is a good chance of conviction, due to the nature of strict liability.
Elliot and Quinn (p.33.1) tell us that ‘strict liability makes enforcing offences easier.’
In Gammon (Hong Kong) Ltd v A-G (1985), the defendants were involved in building works in Hong Kong. A part of the building they had constructed fell down, and it was found that the collapse of the building had occurred because the builders had failed to follow original plans exactly. The Hong Kong building regulations prohibited deviating from plans in any substantial way, and the defendants were charged with breaching these regulations. The penalty was $250,000 fine, or 3 years imprisonment. On appeal, they put forward the argument that they were not aware the changes they had made were substantial ones. However, the Privy Council held that the relevant regulations created an offence of strict liability, and the conviction was upheld.
Here, the Privy Council suggested that if mens rea had to be proven in all instances- even the smallest of regulatory offences- the administration of justice may not be possible at all. It can be argued that the imposition of strict liability here is well justified.
This is another advantage to the imposition of strict liability; in many offences, mens rea may be very difficult to prove. 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. Molan argues that it is not in the interests of justice that those who have taken reasonable precautions to avoid risk, and could not possibly have avoided committing the offence, should be punished by the criminal law. He states that “this goes against the principle that the criminal law punishes fault.”
Of course, where there are arguments for the imposition of strict liability, there are arguments against. Strict liability is often criticized as being unjust, on a variety of different grounds. Firstly, it may not be in the best interest of justice that someone who has taken the utmost care to, and could not possibly avoid committing an offence, should be punished under criminal law. It could be suggested that this is contrary to the principle that criminal law punishes fault.
Secondly, it is morally doubtful that strict liability should be evoked because mens rea has been found as too difficult to prove. Elliot and Quinn (p.34.1) give an example of this-
‘The prosecution often find it difficult to prove mens rea on a rape charge…but is that reason for making rape a crime of strict liability?’
There are of course many crimes that are clearly less severe than rape. However, some, such as Gammon, do impose severe penalties. It can be suggested that is not in the interests of justice if strict liability is imposed in these areas, purely because the prosecution has found mens rea too difficult to prove.
In addition, as Smith and Hogan (Criminal Law, 1992, P.219) point out, in the case of trial by jury, the imposition of strict liability denies the jury access to questions of fact, and allows them to be solely considered by the judge for the purposes of sentencing.
There are also arguments questioning whether strict liability actually works. Elliot and Quinn (P.34.2) tell us that-
‘For the kinds of offences to which strict liability is usually applied, the important deterrent factor may not be the charge of being convicted, but the chances of being caught and charged. In the food and drinks industry in particular, just being charged with an offence brings unwelcome publicity…’
The problem here is that the chances of being caught and convicted, as Elliot and Quinn reveal, are not very high. The usual response to a company found guilty of malpractice is a warning letter. Even if a company has a fine imposed upon them, it is unlikely that this fine will surpass the amount the company would need to spend in order to avoid committing the offence initially. Alternatively, one might suggest providing more resources for the enforcement agencies, and bringing more prosecutions, as a stronger deterrent than strict liability.
In some areas, it may be that strict liability has the opposite effect of being a deterrent. For example, if one were aware that even in following rigidly safety guidelines, and doing all that is possible to avoid creating offence, but were aware also that they would probably end up committing an offence anyway, there would be no incentive to take such precautions. 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.
List of Cases
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC1, PC 29, 30, 31, 33, 34
Smedleys v Breed [1974] AC 839; [1979] 2 All ER 21; [1974] 2 WLR 525 36, 37
Bibliography
Elliott, Catherine & Quinn, Frances (2000) ‘Criminal Law- 3rd edition’, Longman
Molan, Michael (2003) ‘Criminal Law- 4th edition’, Old Bailey Press
Roe, Diana (2002) ‘Criminal Law- 2nd edition’, Hodder and Stoughton
Smith, J.C & Hogan, B (1992) ‘Criminal Law’ London: Butterworths
Wootton, Barbara (1981) ‘Crime and the Criminal Law: reflections of a Magistrates and Social Scientist’, Oxford: Clarendon
References
www.questia.com (http://www.questia.com/Index.jsp?CRID=criminal_law&OFFID=se1&KEY=criminal_law)
www.hg.org
http://www.hg.org/crime.html
