The implementation of adverbs is a clearer way for Parliament to ensure that the courts do not exclude the presumption of mens rea, making clear its requirement. In Roper v. Taylor’s Central Garage (Exeter) Ltd, Devlin J identifies ‘knowingly’ as the clearest word doing “expressly what the presumption in favour of mens rea would do by implication” (Smith and Hogan 2005:146). Whilst it would be significantly difficult for a court to displace the presumption of mens rea when the word ‘knowingly’ is applied, “it might not extend to an exception clause in the definition of the crime” (Smith and Hogan 2005:146). This perhaps illustrates a coherent principle in establishing strict liability with the application of adverbs as an influential way of preventing courts from deviating from the will of parliament.
The use of the adverb ‘wilfully’ may be interpreted by courts to indicate the requirement of mens rea. However, a number of cases have arisen where the word ‘wilfully’ has existed, yet an offence of strict liability imposed; thus indicating inconsistencies and conflict between authorities. Regarded as the leading authority, R v. Sheppard, it was held that ‘wilfully’ in s1 of the Children and Young Persons Act 1933 was not limited to the intention of performing the physical acts outlined but also extended to the consequences. D was guilty of ‘wilful neglect’ by failing to get medical aid if he was aware or unaware that the child’s health was in danger and did not care (Smith and Hogan 2005:147). The different interpretation of ‘wilful’ indicates inconsistency in the law of strict liability and therefore the interpretation by judges may vary according to their desire of inferring strict liability or not.
The absence of express words in the statute may mean judges can generally attach or refuse to attach any fault element to it. If a mens rea word is used in a number of sections throughout an act but not in another it may be interpreted that this section is an offence of strict liability. This is clear in Cundy v. Le Cocq, where contrary to s.13 of the Licensing Act 1872, D served alcohol to an intoxicated person. The Divisional Court dismissed the appeal; other sections of the Licensing Act 1872 contained the word ‘knowingly’ except the section under consideration. This was regarded as strong evidence that the intention of Parilament was to make this offence one of strict liability. Judges in the absence of express words are evidently doing as ‘they please’ by refusing to attach any fault element.
However in Sweet v. Parsley, Lord Reid made the important point that it “is not itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence”. In Sherras v. De Rutzen, where the defendant licensee served alcohol to a police constable believing that he was off-duty contrary to s.16(2) of the Licensing Act 1872. The court was not prepared to infer strict liability merely because s.16(2) did not use the word “knowingly” whilst s.16(1) did. This clearly outlines that judges can just term mens rea to be a requirement or rebutted due to the absence of express words.
It is evidently illustrated that Cundy and Sherras are conflicting authorities, the judges in Cundy inferring strict liability due to the word ‘knowingly’ being contained in other words of the statute except one section, but in same situation the judges in Sherras refuse to impose strict liability. This is perhaps the best example of judges generally attaching any fault element that they please, or refusing to attach any fault element due to the absence of express words.
Further evidence in example of this argument are illustrated in Pharmaceutical Society of Great Britain v. Storkwain Ltd, where the House of Lords held that the offence the defendants were charged with under the Medicines Act 1968 s.58(2)(a) was a strict liability offence. In various other sections, the Act expressly provided for mens rea and so it was inferred that the omission to do so was deliberate. However in case of Pharmaceutical Society v. Harwood, a charge brought under s.58(2)(a) of the Medicines Act 1968 failed because the court held this section required proof of mens rea. The very different outcome in both cases clearly illustrates the conflicting authorities on strict liability that may obfuscate the principles, rendering them incoherent.
However it would be wrong to assume that the words of the statute are conclusive in determining whether the presumption of mens rea is displaced; extrinsic factors such as the purpose the legislation was designed to serve. An important question for the court is whether the offence is a ‘real’ or ‘quasi’ crime. A ‘quasi’ crime is one that carries a minimum amount, if any, stigma as is not ‘criminal in any real sense’ . If the offence is regarded as a ‘quasi-crime’ then strict liability is much more likely to be imposed as it is not contrary to justice that moral guilt is not central to the offence (Smith and Hogan 2005:148).
Smith and Hogan (2005:148-149) give the example of the deliberate selling of lottery to underage participants but rightly identifies that very few people would consider “that the actor ought to be locked up”. Evidently offences of strict liability do not consider the degree of fault; the same stigma is attached to those who commit the offence intentionally or innocently. Perhaps this greater possibility of strict liability being imposed shows that there is some coherent principle. It suggests that judges are not completely free to do as ‘they please’ in the absence of expressed words; whether the crime is deemed to be ‘real’ or ‘quasi’ plays a major role in the inference of strict liability.
Another influential factor may be whether the provision is of general application to the public at large, or whether it is of limited application only to a specific trade or special activity. In cases where the provision tends to apply only to a specific trade, courts are more likely to infer strict liability. This point is illustrated in Sweet v. Parsley, when Lord Diplock said that the courts may feel obliged to infer an intention of Parliament to impose a higher duty of care on those who freely choose to participant in the particular act and are obliged to take “whatever measures may be necessary to prevent the prohibited act”. As an evident principle of strict liability, this clear disputes the claims that the conflicting authorities obfuscate the coherent principle of this type of liability. Again it illustrates that fault elements can not merely be attached or removed by the whim of the judge, the principles outlined clearly limit the judges’ ability to do as they please.
A further influential principle is the degree of social danger; the greater the degree of social danger the greater the chance of the provision being inferred to be one of strict liability. This evidently illustrated in Yeandel v. Fisher, where judicial notice of the great danger drugs pose to society was taken by Lord Parker. This is clear in the case of Lockyer v. Gibb, where it was held s1(1) of the Drugs (Prevention of Misuse) Act 1964 was an offence of strict liability, despite the fact that D might not know or have an reason to know the thing under his control was dangerous or a drug. The inference of strict liability in matters termed to be of danger to society clearly shows another principle of this liability, which curtails judges’ ability to attach or remove a fault element from an offence.
The severity of the punishment is arguably an indicator whether an offence is one of strict liability; a severe maximum punishment indicating that parliament could not have intended an offence of this liability. In R v. Muhammed, the court held that the more serious the offence the greater presumption of mens rea. However a number of cases bearing heavy maximum sentences have imposed strict liability. The House of Lords considered inferring strict liability in the case of B and K, the offence of sexual intercourse with a girl under 13, carrying sentence of life imprisonment. This outlines a conflict between an influential principle of strict liability and the case law. This is an indication that judges attach or refuse to attach any fault element that they please, undisputedly going against a persuasive principle of strict liability.
Ultimately there are some elements of truth to Glanville Williams’ statement; however this is only at a very basic level. The presumption of mens rea and the inconsistent interpretation of express terms used in statute provisions evidently outline that there is a flawed framework of principles to infer strict liability. The absence of express terms in statutory provision outlines further implications in the framework of strict liability; further conflicting authority evident in the inconsistent presumption or rebuttal of mens rea when other sections of an act contain a mens rea word, except the section concerned. It is simple to merely agree with Glanville Williams’ statement on English criminal law of strict liability, however, as has been illustrated in the present critical analysis, a number of coherent factors extrinsic to statutes play a major role in whether strict liability will be imposed. Whether the offence is termed to be a ‘real’ or ‘quasi’ crime, if the statute provision is of general or special application, degree of social danger of the offence and the severity of the punishment all play influential roles in whether mens rea is to be presumed or if the offence is to be classed as one of strict liability. Therefore fault elements can not merely be attached or removed to an offence by the whim of the judge as he pleases. In the absence of expressed words, the judge is clearly limited to some extend by these extrinsic factors.
Table of Cases
B (A Minor) v. DPP [2000] 2 AC 428
Cundy v. Le Cocq (1884) 13 QBD 207
James & Son Ltd v. Smee [1955] 1 QB 78
Lockyer v. Gibb [1967] 2 QB 243
Pharmaceutical Society v. Harwood [1981] WL 187891
Pharmaceutical Society v. Storkwain Ltd [1986]1 W.L.R. 903
R v. K [2001] 3 All ER 897
R v. Muhammed [2003] 2 WLR 105
R v. Sheppard [1981] AC 394, HL
Roper v. Taylor’s Central Garage (Exeter) Ltd [1951] 2 TLR 284 at 288
Sherras v. De Rutzen [1895] 1 QB 918
Sweet v. Parsley [1970] AC 132 at 163
Yeandel v. Fisher [1966] 1QB 400 at 466
Table of Statutes
Children and Young Persons Act 1933
s.1
Drugs (Prevention of Misuse) Act 1964
s.1(1)
Licensing Act 1872
s.13
s.16(1)
s.16(2)
Medicines Act 1968
s.58(2)(a)
Bibliography
Smith and Hogan (2005), Criminal Law, Eleventh Edition, New York: Oxford University Press
Smith and Hogan (2006), Criminal Law Cases and Materials, Ninth Edition, New York: Oxford University Press
Per Wright J in Sherras v. De Rutzen
