By Lisa James
Strict liability
What is strict liability?
It is offences that do not require proof of the mens rea for at least on the element of the actus reus. This means that a defendant can be found guilty if he does the act required for a crime- the actus reus, even though they do may not have had the intention to do the crime- the mens rea. In most circumstances there must be some intention to do part of the actus reus. In R v Prince 1875 the defendant was charged with an offence of taking an unmarried girl under the age of sixteen out of possession of her father. Although he knew the girl was in custody of her father he believed on 'reasonable grounds' that the girl was eighteen years old. The girl was in fact fifteen. He was found guilty of the offence as it was held that knowledge that the girl was under sixteen years old was not needed for the offence. It was enough to demonstrate that the defendant intended to take the girl out of the possession of her father. However, in Hibbert 1869the defendant was acquitted because it was not proved that he knew the girl was in possession the father.
A majority of strict liability offences however, are less serious, regulatory crimes crime applying mainly to business. Examples include preventing selling food past its sell-by date or food unfit for consumption, i.e. Callow v Tillstone 1900. A butcher who was convicted of selling unfit meat despite having a vet declare it was safe! Or a vehicle with unfit tyres. In both these situations, the defendant is seen as guilty even though one did not know that the meat was unfit for human consumption, or that the other's tyres were defective. Similarly in Smedleys v Breed 1974, the manufacturer was convicted of selling food that was unfit. This was upheld the House of Lords, when four tins of peas were found to contain caterpillars, they remained unimpressed with the argument that millions of tins of unaffected peas has been sold.
Theses types of offences are statutory because they are seen as crimes that can benefit the public as a whole, like Harrow LBC v Shah & Shah 1999, where a lottery ticket was sold to an underage boy. Although the defendants had not been present when the transaction has been made and despite the fact that they had warning signs for employers not to sell to underage buyers. The employee who sold the ticket believed that the boy was the required age, this was dismissed by the magistrates but the local authority appealed against this decision. It was allowed because it was said by the prosecution that the belief of the boy's did not need to be proved. Another example could be R v Lemon; R v Gay News Ltd 1979 under grounds of libel. The defendants were the editor and publishers of a newspaper for homosexuals. They were charged with the offence of blasphemous libel. The particulars of the offence alleged that they unlawfully and wickedly published or caused to be published a blasphemous libel concerning the Christian religion, namely 'an obscene poem and illustration vilifying Christ in His life and in His crucifixion'. The trial judge directed the jury that they could convict the defendants if they took the view that the publication vilified Christ and that it was not necessary for the Crown to prove an intention other than an intention to publish that which in the jury's view was a blasphemous libel. The defendants were convicted and appealed
The House of Lords held (3-2) that in order to secure a conviction for the offence of publishing a blasphemous libel it was sufficient, for the purpose of establishing mens rea, for the prosecution to prove an intention to publish material which was in fact blasphemous and it was not necessary for them to prove further that the defendants intended to blaspheme. The defendants appeal against conviction was dismissed.
In strict liability the prosecution must still prove a person the defendant committed the actus reus (guilty act) voluntarily, if the actus reus could not be avoided in ...
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The House of Lords held (3-2) that in order to secure a conviction for the offence of publishing a blasphemous libel it was sufficient, for the purpose of establishing mens rea, for the prosecution to prove an intention to publish material which was in fact blasphemous and it was not necessary for them to prove further that the defendants intended to blaspheme. The defendants appeal against conviction was dismissed.
In strict liability the prosecution must still prove a person the defendant committed the actus reus (guilty act) voluntarily, if the actus reus could not be avoided in that it was committed involuntarily then a person, the defendant cannot be held liable. Unless the offence is seen as absolute liability where a defendant is guilty without the need for mens rea to be proved. In extreme cases the defendant can be found guilty even though the act involuntary.
This type pf complication can be called state affairs of crimes, the example of R v Larsonneur 1933, where the defendant was French and had left the United Kingdom because her permission to stay was refused, was deported from Ireland and brought into the U.K by police. Although she had no intention, mens rea to return to the U.K, nor did she voluntarily re-enter the U.K, actus reus. Despite this she was still found guilty of being in the U.K.
One of the problem the courts face is knowing exactly when an offence is one of strict liability or whether mens rea is required. In theory a statute should state accurately whether an offence is either one of strict liability or if mens rea is required. This can be got around by using words associated with mens rea such as 'intentionally', 'recklessly', 'knowingly', 'dishonestly.'
A lot of statutes do not have a crystal clear meaning of what is stated and statutory interpretation is needed. When they do so the overriding principle is the presumption of the mens rea.
In Sweet v Parsley 1976, where Ms Sweet a teacher took a sublease of farmhouse that she rented out to tenants and rarely spent time there. Unknown to her the tenants were smoking cannabis on premises. When they were caught, she was found guilty of being concerned in the management of premises, which were being used for the purpose of smoking cannabis, contrary to the Dangerous Drugs Act 1965 (now replaced by the Misuse of Drugs Act 1971). Ms Sweet appealed on the grounds that she new nothing about what the tenants were doing, and could not reasonably have been expected to have known. Lord Reid acknowledged that strict liability was appropriate for regulatory offences, or 'quasi- crimes'- offences which are not criminal in 'any real sense' and are merely acts prohibited in public interest. But he said, "The kinds of crime to which a real social stigma is attached should usually require proof of mens rea; in the public interest that an innocent person should be prevented from proving that innocence in the interests of making it easier for guilty people to be convicted.
In Gammon (Hong Kong) LTD A-G 1985, it was stated that the presumption against strict liability was less strong for regular offences than for truly criminal offences. This distinction had already been made in previous case Sweets v Parsley 1970 from where five points were made that court should consider to determine whether the presumption has been rebutted. Then in Blake 1977, which involved the defendant being convicted of operating a radio station without a license, despite the fact that he thought he was just making demonstration tapes, further points were added, these were:
The statutory language, which were words that imply the mens rea is needed. Words such as 'permitting', 'knowingly', 'willingly',' dishonestly'. Most words make it clear whether or not an offence is of strict liability although there have been problems with words i.e. 'permitting' in James & Son LTD v Smee 1955 and 'willingly' in Sheppard & Sheppard 1980.
Looking at language can be helpful but there are times where a statute will use words of the mens rea and not in others. It could be said that parliament created strict liability later on. This demonstrates an inconsistency by the courts in their attitudes to strict liability offence. Two cases that show this are Cundy v Le Cocq 1884 and Sherras b Be Rutzen 1885, similar cases but a more lenient approach was taken in the latter case. The case was a publican was convicted for serving alcohol to a police officer; it was quashed because the officer had not been wearing an armband identifying him as being on duty. This could be compared further to the case mention earlier of LBH v Shah & Shah 2000 where they ere changing for selling an under aged boy a lottery ticket even though they were not there when the transaction took place.
As strict liability is mostly seen as being 'quasi- crimes' not being criminal in the 'real sense' of the word but acts forbidden in the public interest, but what happens when there is a greater social danger?
In this circumstance, when there is a greater degree of social danger, meaning that more people are likely to be affected by offence the more likely the grounds of mens rea will be disproved. Like in Alphacell LTD v Woodward 1972, where the defendants were a company accused of causing polluted matter to enter a river. The machine they were using was designed to stop any overflow to enter a river but the machine became clogged by leaves and pollution was able to escape. There was no evidence that the defendants had been negligent or were aware that pollution was leaking out. The House of Lords stated that where statutes create an offence of causing something to happen, then courts should adopt a common- sense approach.
If a 'reasonable person' can say that the defendant has caused something to happen, regardless of whether he or she was doing so then no mens rea is required. Their Lordships held that in normal meaning of the word, the company had had 'caused' the pollution to enter the water, and their conviction was upheld.
According to social scientist Barbara Wootton defend strict liability saying that if the aim of criminal law is to prevent socially damaging situation, it would ridiculous to ignore those that cause harm due to careless behaviour accidental or otherwise, she even went on to say that all law should be strict liability!
Courts often need to consider the punishment in terms of severity when deciding whether the grounds of mens rea can be disproved. The more the severe the punishment the more likely the offence is 'truly criminal' and mens rea is needed. This test is the least consistent because in Pharmaceutical Society of Great Britain v Storkwain LTD 1986, where a pharmacist was convicted for supplying drugs without a valid prescription was upheld even though he did not know that the signature was forged.
A maximum penalty of two years imprisonment did not prevent the House of Lords deciding that liability was strict. Similarly in Howell 1977, the Court of Appeal stated that the danger to the community resulting from the possession of lethal firearms is so obviously great, that an absolute prohibition against their possession must have been the intention of parliament. This implies that the more serious the offence, the stronger the argument that parliament intended strict liability.
The arguments for strict liability could be that there is an ease of convictions, These would be a lot harder to achieve if the mens rea had to be proved. In Gammon , the Privy Council suggested that if the prosecution had to prove mens rea in even the smallest regulatory offence, the administration of justice might come very quickly to a standstill.
In many strict liability offence, mens rea would be difficult to prove and without it guilty people might escape conviction. Obvious examples are those involving large corporations, where it may be difficult that someone knew what was happening.
Where an offence is concerned with business, those who commit it may well be saving them money and thereby making extra profit by doing so. By far saving time that would have been spent observing safety regulations, if a person creates a risk or could cause harm, even if that was not the intention.
So what is the point of strict liability offences?
Lord Diplock said "The usual justification for creating by statute a criminal offence of strict liability...is the threat that the actus reus of the offence, poses to public health, public safety, public moral or public order.
On the other hand strict liability is criticized as unjust on a variety of different grounds. First that it is not in the interest of justice that someone who has taken care and could not possibly have avoided committing an offence should be punished by the criminal law. Like in Callow V Tillstone, where the butcher had done everything he could short of not selling the meat, getting it approved by a vet, there was no way he could avoided liability, which hardly seems fair.
Second, the argument that strict liability should be enforced because mens rea would be too difficult to prove is morally distrustful. The prosecution, often find it difficult to prove mens rea on a rape charge, for example, but is that a reason for making rape a crime of strict liability? Although many strict liability offences are clearly far lesser crimes than these, some do impose severe penalties, as Gammon illustrates, and it may not be in the interests of justice if strict liability is imposed in these areas just because mens rea would make things too difficult for the prosecution. It is inconsistent with justice to convict someone who is not guilty, in the normal sense of the word, just because the penalty imposed will be small.
Strict liability also delegates a good deal of power to the discretion of the enforcement agency. Where strict liability makes it almost certain that a prosecution will lead to a conviction, the decision on whether or not to prosecute becomes critical, and there are few controls over those who make this decision.
It is debatable whether strict liability actually works. For a start, the deterrent value of strict liability may be overestimated. For the kinds of offences to which strict liability is usually applied, the important deterrent factor may not be the chances of being convicted, but the chances of being caught and charged. In the food and drinks business particularly, just being charged with an offence brings unwelcome publicity, and even if the company is not convicted, they are likely to see a fall in sales as customers apply the 'no smoke without fire' principle. The problem is that in many cases the chances of being caught and prosecuted are not high. Even where offenders are caught, it appears that the usual response of enforcement agencies is a warning letter. The most serious or persistent offenders may be threatened with prosecution if they do not put matters right, but only a minority are actually prosecuted. Providing more resources for the enforcement agencies and bringing more prosecutions might have a stronger deterrent effect than imposing strict liability on the minority who are prosecuted.
