Absolute and Strict liability.

Absolute liability

• There is no requirement for the actus reus to have been voluntarily.

• This means that, unlike all other forms of crime, the defendant need not voluntarily commit the actus reus or have ant mens rea.

• See: R V Larsonneur

• However, these are very rare (rare to get a question on in exam).

Strict liability

• The actus reus must be voluntarily - the defendant must voluntarily conduct the action.

• There is however, no requirement for the prosecution to prove any mens rea existed.

• This means, unlike with other types of offences, there is no requirement for fault (Pharmaceutical Society of GB V Storkwain)

Gammon (Hong Kong) Ltd V AG for Hong Kong (the Gammon test):

Sets out clear presumption the courts use to determine with an Act creates a strict liability offence:

• 1) There is a general common law presumption that all criminal offences require mens rea;

  • This was seen in the case of Sweet V Parsley where the court held that drug-based offences relating to the production of cannabis required a mens rea.

• 2) The presumption can only be displaced if it is clearly necessary by implication or effect of the words of the statute;

  • As a matter of statutory interpretation, because Parliamentary Counsel know of these presumptions, strict liability offences do not use mens rea based words such as; knowingly, intentionally, dishonesty etc.

• 3) The presumption is particularly strong where the offence is “truely criminal” in character;

  • Harrow LBC V Shah and Shah where the underage selling of lottery tickets was deemed to be strict liability.

• 4) The presumption can only be displaced if the statute is concerned with an issue of social concern (societal issues) such as public safety, health and welfare, the environment etc;

  • Licencing abuse (Cundy V Le Coq)

  • Consumer Protections and public health (Callow V Tillstone)

• 5) Strict liability should only apply where its application encourages greater vigilance to protect the prohibited act;

  • Lim Chin Aik V The Queen - a person was not convicted of an order they did not know about because the court felt - given the order was not effectively communicated - it would therefore not encourage greater obedience to the law.

• As strict liability does not require fault:

  • Due diligence (doing everything to try and prevent something from happening) is not automatically a defence (Harrow LBC V Shah and Shah)

  • Mistake is also not an offence (Cundy V Le Cocq)

The ratio from R V Lane and Letts

• The presumption to require mens rea can only be applied so far as the statute allow is; this presumption is rebutted (removed) if the words are completely clear.