The imposition of strict liability in certain criminal offences is a necessary evil in the fight to protect the public from harm.

 Written by Jonathan Wight

Introduction

            In this essay I will be discussing the imposition of strict liability in criminal law. I will do this by analysing the issues surrounding strict liability offences using case law, and discussing the pros and cons of having strict liability in law.

What is strict liability?

            Strict liability has been a part of the English legal system for many years. Strict liability offences are those that it has been decided that mens rea is not required and that if someone has fulfilled the actus reus of the crime, whether they intended to or not, then this will be enough to convict (although there is a presumption of law that mens rea is required before a person can be found guilty of a criminal offence, this presumption can be displaced by strict liability offences Gammon (Hong Kong) (1985)).

Strict liability offences are nearly always offences that have been deemed strict liability by statute; there are very few offences of strict liability in common law. Statutory strict liability offences include offences relating to the preparation of food, possessing unlawful weapons and drugs, and driving offences such as drink driving and speeding. Examples of common law strict liability offences include public nuisance, blasphemous libel, outraging public decency and criminal defamatory libel. There is generally no defence against strict liability offences, although there are some exceptions to this rule, but usually only if specific defences have been expressly mentioned in the relevant statute. The decision on whether or not the liability of an offence is strict is also often dependant on the size of the penalty i.e. the larger the penalty, the less likely strict liability will be imposed.

What makes an offence one of strict liability?

With statutory strict liability the decision on whether or not the liability of the offence is strict depends on the wording of the act. There are several key words and phrases that the courts look at in the statute to decide whether or not an offence is strict liability. These include: ëpermitting or allowingí, ëcauseí, ëpossessioní, ëknowinglyí and ëwilfully and maliciouslyí. The interpretation of these words will be what decides whether or not a mens rea of intention, recklessness or negligence is required.

Is Strict Liability necessary in criminal law?

            Strict liability in criminal law is necessary in many offences. This is especially true with offences such as driving offences e.g. speeding or drink driving, as convictions would be very hard to obtain if the prosecution had to prove recklessness, negligence or intent in every case, and it would cost a lot of money to bring every single one of these cases to court.  

Strict liability is also fair, if a little controversial, in other types of cases. Examples of previous cases where this is true include Smedleys v Breed (1974) where Smedleys peas, a large scale manufacturer of tinned peas was convicted under the Food and Drugs Act (1955) for supplying a tin of peas containing a caterpillar (supplying food unfit for human consumption). The House of Lords held that this offence was one of strict liability and it was not sufficient to show that the company had taken all reasonable precautions to ensure that their products were not contaminated. I feel that strict liability should apply here as companies should not be allowed to supply food unfit for human consumption under any circumstances.

Another previous case where I feel that strict liability was correctly applied is Alphacell v Woodward (1972). The company in question was charged with causing pollution to enter the river after the mechanism that was being used to prevent this pollution became blocked with leaves, allowing the pollution to escape. The defendants claimed that they had no idea that the mechanism was blocked. The House of Lords held that the defendants had ëcausedí the pollution in the normal sense of the word, whether or not there was any evidence of negligence, and the conviction was upheld. This offence should be an offence of strict liability, as it is the defendantís responsibility, and no one elseís, to ensure that they are not causing pollution. Therefore they should have regularly checked there mechanisms to insure that there were no blockages of this type present.

Strict liability is also used with regard to offences of possession; this has led to some convictions that seem questionable such as R v Marriot (1971). In this case the defendant was convicted of possession of cannabis when he was found to be in possession of a knife with 0.03g stuck to the blade. His defense stated that the defendant had no idea what the substance was, but was convicted nonetheless. He appealed against the decision and the court of appeal upheld the conviction stating that the accused was guilty if he knew that there was a substance on his knife even if he didnít know what the substance was, as he was still in ëpossessioní of the substance. This seems unfair if the defendant truly did not know the nature of the substance, although this does sound like a particularly weak defence.

A different stance was taken in two other cases of possession: R v Hallam (1957) and Warner v MPC (1969), the later of which served to provide possible defenses against charges of possession. In R v Hallam (1957) the defendant was charged with knowingly possessing explosives. In his defense he said that he had believed the substance to be soap powder. The court decided that this was not a case of strict liability and the prosecution must prove that the defendant knew what the substance was. This seems unfair with in comparison with R v Marriot (1971) as both the defendants defenses were the same, yet the outcome of the cases was very different. However the charge in R v Hallam (1957) was of knowingly possessing explosives, which would imply that mens rea was necessary.

In the case of Warner v MPC (1969) the defendant was found in possession of two parcels. One of these two parcels contained drugs. Warner claimed that he had no knowledge of the drugs. The House of Lords held that possession is an offence of strict liability and the defendant being in possession of the parcels was sufficient. However the House of Lords did lay down possible defences against possession of this nature:

Said obiter dicta (per Lord Reid, Lord Pearce and Lord Willberforce) the strong inference that possession of a package by an accused was possession of its contents could be rebutted by raising real doubt either:

(a)    When the accused (if a servant or bailee) had both no right to open the package and no reason to suspect that the contents of the package were illicit,

Or:      (b) That (if the accused were the owner of the package) he had no knowledge of, or was genuinely mistaken as to, the actual contents or their illicit nature and received them innocently, and also that he had no reasonable opportunity since receiving the package to acquaint himself with its contents.

            There have also been a number of cases where strict liability has been imposed where I feel that it was both unfair and unjust to do so. The most two most prominent of which are R vs Storkwain (1986) and R v Larsonneur (1933).

In R v Storckwain (1986) the defendant was a pharmacist who was convicted of supplying prescription drugs to someone who was not entitled to them. The defendant did this after being given a forged prescription that he had no reason to believe was not real. There was no evidence of negligence or wrong doing on the defendantís part. The House of Lords upheld this decision on appeal stating that this offence was strict liability as per the relevant statute and therefore mens rea was not necessary. This decision seems extremely unfair and I do not believe that this offence should have been one of strict liability, as the pharmacist had every reason to believe that he was acting lawfully, and the only person that I feel should be liable in this offence is the person who forged the prescription.  

In R v Larsonneur (1933) the defendant was a French national whose passport status prevented her from working in the UK. She was forced to leave England so she went to EIRE, where she was later deported back to England. On arrival back in England she was re-arrested, charged and found guilty of being in England, contrary to the Aliens Act 1920 (an offence deemed by statute to be one of strict liability). This decision also is extremely unfair as she was forced to return to England by the Irish police and therefore had no intention to be present in the UK. For this particular crime I feel that mens rea should have to be present.  

Both of these cases show that, when a statute has created an offence of strict liability, not all of the possibilities of circumstance have always been thought through properly. This has been shown however when some convictions where the offence has been deemed to be one of strict liability have been quashed at a later date by the House of Lords where they have realized that it would be unjust for these convictions to stand. These cases include and Sweet v Parsley (1969) and B (a minor) v DPP (2000).

In Sweet v Parsley (1969) a landlady was convicted of allowing cannabis to be smoked on her premises. However the landlady did not live on the premises and had no knowledge of what her lodgers were doing.  This conviction was quashed by the House of Lords who said that it was essential for the defendant to have knowledge of what her premises was being used for, and since she had no such knowledge her conviction could not stand, therefore declaring that this offence was not one of strict liability. This was the right decision for the House of Lords to make as it would be wholly unjust to punish the landlady for a crime that she had neither any part in or any knowledge of.

  In B (a minor) v DPP (2000) the defendant was a 15 year old boy who was convicted of inciting a girl under 14 years to perform an act of gross indecency, which was deemed to be a strict liability offence. The divisional court upheld this decision, but it was later overturned by the House of Lords who stated that where a statute makes no mention of mens rea the assumption is that it is required, especially in the case of serious offences. In this case the defendant stated that he believed that the girl was over the age of 14, and if this was an honest belief then it would seem unfair to impose strict liability, especially in such a serious crime.   

Possible Reform

            There has been a move away from strict liability in more serious crimes and it is possible that issues surrounding strict liability in sexual offences cases may be changed after the cases of B (a minor) v DPP (2000) and K 2000 in which the House of Lords decided that mens rea was required. Changes may also come about with reference to strict liability in regulatory offences, as there is confusion with some of these offences.

            Reform is also possible if the draft criminal code is ever brought into practice will lay down the presumption that all offences will require mens rea of intention, recklessness, knowledge or negligence. Therefore if parliament wishes for an offence to be classed as strict liability then they would have to say so explicitly in the relevant provision.

Conclusion

            In conclusion I believe that strict liability is necessary in criminal law as it there are some offences for which there is no excuse and no reasonable defence, and strict liability allows the courts to save time and money. It also provides a strong deterrent for people against committing certain offences. Strict liability helps to ensure that:

bulletThe public is protected from unfit food.
bulletThe public and countryside is better protected against pollution.
bulletPeople are deterred from possessing unlawful weapons and drugs.
bulletThe public is protected against unsafe buildings.
bulletPeople strive to improve standards so as not to be liable for committing a criminal offence.

However I have also shown that in some cases the imposition of strict liability can be both unfair and unjust. There are many problems with the way that strict liability is currently imposed. Problems with strict liability include:

        It may not succeed in raising standards as people often do not realise that they are party to any wrongdoing.

        Decisions are often unjust and unfair.

        The courts often face difficulty identifying strict liability offences and are inconsistent with their attitude and decisions.

        There is often a marked lack of clarity in judgements.

        Decisions with regard to strict liability can sometimes lead to outcomes that are the opposite of what was intended by the law.

        A criminal conviction and the possibilities of massive penalties are imposed on the defendant for an offence that he/she may not have foreseen/intended or been able to prevent.

Overall I feel that strict liability is necessary, but that it should be used wisely and that statutes should be extremely carefully worded. The government is slowly moving away from creating new offences of strict liability and phasing out some of the older ones, or at least revising the statute and adding possible defences. Strict liability offences are a long way from being extinct and I see no way of effectively eradicating them from criminal law without a damaging affect to the English legal system.

Jonathan Wight                                                                                                    October 2003.