Strict Liability
21 No Fault and Strict Liability
After reading this chapter you should be able to:
Understand the concept of no fault and strict liability in criminal law.
Understand the tests the courts use to decide whether an offence is one of strict liability or not.
Understand the role of policy in the creation of strict liability offences.
21.1 The Concept of Strict Liability
Strict liability offences: Offences where mens rea (the mental state or intent) is not required in respect of at least one aspect of the actus reus (the physical act).
An illustrative case is Pharmaceutical Society of Great Britain v Storkwain Ltd (1986):
Facts: D was convicted under s 58(2) of the Medicines Act 1968 for supplying drugs without a genuine doctor's prescription, believing the prescriptions were valid.
Ruling: The House of Lords concluded that it was sufficient that the pharmacists supplied drugs without a genuine prescription, thus resulting in a conviction despite no fault being found with D's conduct.
21.1.1 Requirement of Actus Reus
The actus reus must be proved for nearly all strict liability offences. For instance, in Storkwain, it needed to be shown that the chemist supplied drugs without a genuine prescription.
The actus reus must also be voluntary; if compelled or coerced (e.g. under duress), it is not considered voluntary.
Absolute liability: In rare cases, individuals may be found guilty even if they did not perform the actus reus voluntarily.
21.2 Absolute Liability
Definition: Absolute liability offences do not require mens rea, nor does the actus reus need to be voluntary.
This usually involves 'status offences' where the mere occurrence of a state of affairs qualifies as an offence.
Key Cases:
R v Larsonneur (1933): D was found guilty for 'being an alien' in the UK despite being forcibly returned from Ireland without mens rea.
Winzar v Chief Constable of Kent (1983): D was taken from a hospital while drunken and charged with being drunk in a public place, even though he did not voluntarily place himself there.
21.3 Strict Liability
A presumption always starts with the need for mens rea; however, if the court finds it unnecessary for part of the actus reus, it may qualify as strict liability.
21.3.1 No Fault
Defendants can be held liable for a prohibited outcome even without having acted recklessly or intentionally, as illustrated by:
Callow v Tillstone (1900): A butcher was convicted for selling unsound meat despite having it checked by a vet, demonstrating the principle of strict liability.
21.3.2 No 'Due Diligence' Defence
Some statutes include a 'due diligence' defence, indicating that a defendant may not be liable if they took all reasonable steps to avoid the infraction.
Example: Harrow LBC v Shah and Shah (1999) where defendants had no mens rea, even though they provided training to staff against selling lottery tickets to minors.
21.3.3 No Defence of Mistake
Strict liability offences do not allow for a defence of mistake, as shown in:
Cundy v Le Cocq (1884): Liability existed despite the defendant's lack of awareness regarding the intoxication of a customer.
Sherras v De Rutzen (1895): A genuine mistake regarding the status of a police officer on duty provided a defense as the offence was not strict liability.
21.3.4 Summary of Strict Liability
For strict liability offences:
Actus reus must be established voluntarily.
Mens rea is not necessary for at least part of the actus reus.
No due diligence or mistake defence is available.
21.4 Strict Liability at Common Law
Strict liability cases in common law are exceedingly rare, with notable examples being:
Public nuisance
Criminal libel
Outraging public decency exemplified by Gibson and Sylveire (1991).
21.5 Strict Liability in Statute Law
Over 3,500 statutory offences are classified as strict liability. They primarily involve regulations concerning safety, public health, and similar areas of concern.
21.6 Interpretation by the Courts
Statutory interpretation plays a vital role in understanding whether an offence classifies as strict liability based on mens rea requirements.
21.6.1 Presumption of Mens Rea
Courts usually start with the assumption that mens rea is required, overturned only if explicitly stated in the statute.
21.6.2 Principle in Sweet v Parsley
The presumption requires mens rea unless specifically displaced; upheld in Sweet v Parsley (1969).
21.6.3 The Gammon Tests
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984) established principles for determining strict liability:
Mens rea is presumed.
Stronger presumption for truly criminal offences.
Issues regarding public concern increase likelihood of strict liability.
Promotes vigilance in observing prohibitions.
21.6.4 Looking at the Wording of an Act
Courts analyze other sections of the Act to ascertain legislative intent regarding mens rea.
21.6.5 Quasi-Criminal Offences
Regulatory or quasi-criminal offences may be interpreted as strict liability, focusing on public good.
21.6.6 Penalty of Imprisonment
Offences carrying imprisonment are less likely to be construed as strict liability.
21.6.7 Issues of Social Concern
Strict liability applies when they address serious social apprehensions, e.g., public health and safety issues.
21.7 Justification for Strict Liability
21.7.1 Policy Issues
Strict liability is positioned as a protective measure for the public over individual rights, especially concerning transportation and health regulations.
21.7.2 Social Utility
Benefits public welfare by promoting safety and compliance with regulations, raising industry standards, and protecting health.
21.7.3 Other Justifications
Other reasons for strict liability can include ease of enforcement and reduced court burdens.
21.8 Arguments Against Strict Liability
21.8.1 Liable Even Though Not Blameworthy
Critics argue it punishes those without fault, demonstrated in Harrow LBC v Shah and Shah and Callow v Tillstone.
21.8.2 Guilty Even Though Unaware of Risk
Liability may arise without the defendant's knowledge of potential harm, shown in Environment Agency v Empress Car Co (Abertillery) Ltd.
21.8.3 Not Improving Standards
Lack of evidence supporting the efficacy of strict liability in heightening safety standards.
21.8.4 Contrary to Human Rights
Suggests a conflict with human rights principles, as reflected in R v G (2008), exposing strict liability's severe social stigma.
21.9 Proposals for Reform of Strict Liability
Recommendations for reform include clearer statutory language stating mens rea requirements, consistent applications of 'due diligence' defences, and exclusion of imprisonment from strict liability offences.
21.10 Summary
Strict liability: No mens rea required for at least one part of the actus reus.
Absolute liability: No mens rea and no voluntary act requirement required (rare).
Strict liability advantages include public protection, enforcement facilitation, time-saving, and consideration of defendant's blameworthiness at sentencing.
Opponent arguments cite issues of fairness, accountability, and human rights compliance.