ìThe Imposition of Strict Liability in Certain Criminal Offences is a Necessary Evil in the Fight to Protect the Public from Harmî

Written by Paul Powlesland

ìActus non facit reum nisi mens sit reaî[1]

This maxim, translated as ìAn act does not make a man guilty of a crime unless his mind also be guiltyî was quoted by Coke in his Institutes back in 1797. This shows that mens rea, as well as actus reas, being necessary in order to convict someone of a crime, has been a bastion of the English Legal System since its earliest days. However for a small, but increasingly growing, number of offences termed ëstrictly liableí, this maxim has been seemingly abandoned. This has, for obvious reasons, sparked much debate as to the moral and legal issues surrounding the imposition of strict liability and the question concerned in this essay is to discuss the arguments on both sides of the debate.

          The first thing that needs to be discussed however, is what exactly does strict liability in an offence actually mean? Contrary to popular belief, it does not mean that no mens rea is needed for that offence. Instead strict liability means that:

ìmens rea does not have to be proven with regard to one or more of the elements of the actus reusî[2].

Thus if the offence in question is one of strict liability, the defendant may be found guilty without any proof of fault on his part.

However, there are two types of strict liability and in order to define them properly it is necessary to have a definition of mens rea. One of the best definitions is that:

ìMens rea consists of two elements. It consists first of all of the intent to do an act, and secondly of a knowledge of the circumstances that make that act a criminal offenceî[3].

The first type of liability is that of absolute liability, in which no part of mens rea is needed. Thus the defendant need not intend to do an act nor need he have a knowledge of the circumstances that make that act a criminal offence. In addition there need not be a voluntary act, the defendant being guilty because a state of affairs exists. The most famous example of this is the case of R v Larsonneur (1933)[4], in which the defendant, who was a French citizen, was asked to leave the country and did so by travelling to Ireland. However, she was deported, against her will from Ireland back to Britain, where she was arrested and found ìGuilty through circumstances beyond her own controlî[5] of being in contravention of s18 of the Aliens Order (1920), despite the fact that she had no mens rea for the offence. Another example of absolute liability is the case of Winzar v Chief Constable of Kent (1983)[6], in which a drunken man was asked to leave a hospital and when he refused to do so, the police were called. The police took Winzar onto the road outside and then charged him with the offence of being drunk on the highway, contrary to s12 of the Licensing Act (1872).

The second, and more common type, of liability is that of strict liability. With strict liability it is at least necessary for the defendant to have intended to commit the act, but the fact that the offence is one of strict liability means that the defendant need have no knowledge of the circumstances that make his act a criminal offence. For example in R v Prince (1875)[7] the defendant was charged with the offence of taking a girl under the age of sixteen out of the possession of her father, contrary to s55 Offences Against the Person Act (1861). Prince intended to commit the act (as he knew the girl was in the custody of her father), but although he mistakenly believed the girl was eighteen, this belief about her age was irrelevant as the offence was held to be one of strict liability. A more modern day example is that of London Borough of Harrow v Shah & Shah (2000)[8], in which the defendants were convicted of selling a National Lottery ticket to someone under sixteen. Like in Prince, the defendants intended to commit the act (i.e. they intended to sell the ticket) and, as the offence (under s13 National Lottery Act (1993)) is one of strict liability, the defendantís claim that they thought the boy was older was irrelevant, as no knowledge of the circumstances that make the act a criminal offence is necessary.

          Having given an introduction as to what strict liability actually is and the two types of liability, I shall now address the question in this essay and describe arguments that are both for and against the imposition of strict liability.

Perhaps the most important argument against the statement in question is that, although many strict liability offences are of a regulatory nature (for example the strict liability offence of selling a lottery ticket to someone under the age of sixteen), some strict liability offences are criminal in nature. I believe that it can never be a so-called ënecessary evilí that someone can be given a criminal conviction, with the possible punishment, loss of liberty and all the social stigma inherent in such a thing, if they did not intend to commit an offence. This goes against Cokeís maxim[9] and the main principle of common law, which states that a person should only be found criminally liable if they have the necessary mens rea for the offence, or are at fault in some way.

          One of the first cases in which strict liability was imposed for an offence of a criminal nature, was that of R v Prince (1875) In this case a man was charged with ìunlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father, mother or any other person having lawful charge of herî[10], despite the fact that Prince believed the girl to be eighteen. The case was heard on appeal by the Court for Crown Cases Reserved, who decided that, as there was no mention of the need for intent (i.e. there were no words to the effect of ìwillinglyî or ìknowinglyî used), parliament had designated the offence to be one of strict liability.  It is hard to decide what is worst about this case, the fact that someone who had no intent was convicted of a criminal offence, or that this case set precedent that was followed for a hundred years, which stated that, even if the offence was criminal in nature, if no mention of mens rea was found in a statute then the offence would be presumed to be strictly liable. Perhaps even worse than the fact that such ancient precedent has underpinned such a vital part of the English Legal System for so long, is the knowledge that the judgement in this case was based on an even older act. This is because, Blackburn J in his judgement infers parliamentís intention with regards to the intent needed for crimes under s55 Offences Against the Person Act (1861) from sections 50 and 51 of the Offences Against the Person Act (1828), which the 1861 act repealed. Thus precedent with regards to strict liability even up until the 1970ís was set from a judge in 1875 inferring parliamentís intention in an 1861 act, based on an act that was enacted in the Georgian period. This is why it could be said there is a great need to reform strict liability, as the precedent that states that some criminal offences can be strictly liable is so old and, many would say, outdated. Furthermore it is the use of strict liability in criminal offences that is the biggest argument against the statement in question, as it can never be a necessary evil to deprive someone of their liberty when they had no mens rea to commit an offence.

          Despite this, those in favour of the statement in question would argue that there has been much reform of the law with regards to strict liability and especially the law surrounding its use in criminal offences. The first case to curtail the use of strict liability was that of Sweet v Parsley (1969)[11], in which a teacher had rented out some rooms to students, who had then smoked cannabis there. Sweet was convicted by the Magistrates of being concerned in the management of premises which were used for the purpose of smoking cannabis, contrary to s5(b) of the Dangerous Drugs Act (1965) and her appeal to the Divisional Court was dismissed. However, on appeal, the House of Lords found in her favour, even going so far as to say:

ìHow has it come about that the Divisional Court has felt bound to reach such an obviously unjust result.î[12]

Furthermore, the House of Lords also decided that in future it would be presumed that men s rea is necessary for an offence, unless this presumption was rebutted in a statute. Thus if no mention of mens rea was made in a statute, then it would be presumed it was needed, rather than the offence being presumed to be strictly liable, which at least reversed one part of the unjust judgement in Prince and thus helps to support the statement in question, as people are more likely to accept a ënecessary evilí if it is seen to be more just.

          An even bigger move against strict liability came in the recent case of B (a minor) v DPP (2000)[13], in which a boy of fifteen tried to incite a girl under the age of fourteen (but whom he believed to be over the age of fourteen) to perform oral sex on him, contrary to the Indecency with Children Act (1960). The case went to the Divisional Court, who decided that the offence was one of strict liability, however, a further appeal was made to the House of Lords, where a ìmarkedly different approach was taken.î[14] The House of Lords decided that, as the relevant statute made no mention of mens rea, the common law presumption that it was required was not rebutted. Thus with regard to the Indecency with Children Act (1960), the prosecution needed to prove that:

ìthe offence had taken place and to do this [they] had to show an absence of genuine belief by the defendant that the girl was 14 or over.î[15]

The House of Lords went even further than this and decided, on the basis of persuasive precedent from DPP v Morgan (1976)[16], that this belief about the age did not have to be reasonably held, so long as it was genuine. Although the decision in B (a minor) v DPP (2000), does not expressly overrule the decision in Prince, Prince is now ìSeverely shaken as authorityî[17] and other commentators have noted that Prince ìis a relic from an age dead and gone.î[18] Although B (a minor) v DPP (2000) seemingly undermines strict liability as it significantly reduces its scope, I believe the case is actually beneficial to those in favour of strict liability and the statement in question. This is because it goes a long way to abolishing strict liability for criminal offences, thus making the law more just, which in turn should inspire more respect in the law, which should mean that more people are willing to accept strict liability as a necessary evil. However, the spectre of strict liability in criminal cases has not yet ended, as seen in the case of K (2001). In this case the defendant was charged with indecent assault on a girl under the age of sixteen (but whom he believed to be sixteen) contrary to s14 Sexual Offences Act (1956). The Court of Appeal inferred from the drafting of the act that parliament had intended the offence to be one of strict liability and thus they were able to distinguish the case from B (a minor) v DPP (2000). They further went on to say that:

ìIn our judgement, the prosecution do not have to prove that the defendant at the time of the incident did not honestly believe that the complainant was sixteen years or over.î[19]

The fact that strict liability still prevails in some ëtruly criminalí cases is a fact that can only go against strict liability. Thus it is actually in the interests of those in favour of strict liability and of the statement in question in this essay to campaign for the ending of it in ëtruly criminalí cases, as the unjustness of it can only lead to more detractors of strict liability and less people who consider it to be a ënecessary evilí.

          However, ëtruly criminalí offences aside, many of those against strict liability and the statement in question believe it is also wrong to impose it even in those offences of a more ëregulatory natureí. This is because the imposition of strict liability goes against one of the main principles of common law, which states that:

ìa person or company should only be liable if they are at fault in some way.î[20]

This is especially so given that in many cases the defendant was completely unaware that an offence was being committed. For example in the case of Pharmaceutical Society of Great Britain v Storkwain (1986)[21], a pharmacistís conviction for supplying drugs without a valid prescription was upheld, despite the fact that he did not know the signature on the prescription was forged. Thus strict liability causes individual hardship, which is often hard to justify as a ënecessary evilí to protect the public from harm. This is especially so given that, even for offences of a regulatory nature, the penalties for an offence can be quite severe, for example in the Privy Council case of Gammon (Hong Kong) Ltd Attorney General for Hong Kong (1985)[22], the maximum penalty for the strict liability offence committed by the company was a $250,000 fine and/or three years imprisonment. Similarly in the already mentioned case of London Borough of Harrow v Shah & Shah (2000), the maximum sentence (on indictment) was two years imprisonment. Thus even though an offence may be regulatory in nature, the penalty for it can still be quite severe. This causes problems as, as already stated, the more serious the crimes classified as, and the harsher the sentences that can be imposed for, strict liability offences, the less likely people are to see strict liability as a ënecessary evilí.

          However, this statement would be strongly contested by those in favour of strict liability. They would argue that individual hardship in some cases is necessary to protect the public from a multitude of harms, some of which are detailed below.              

          One of the biggest harms that strict liability protects against is that of dangerous drugs, which it does by ensuring that offenders cannot escape liability by arguing that they did not know the drugs were in their possession. For instance in Warner v Metropolitan Police Commissioner (1969)[23], the defendantís conviction for being in possession of a prohibited drug (contrary to s1 of the Drugs (Prevention of Misuse) Act (1964)) was upheld by the House of Lords, despite the defendantís protestations that he did not realise what the substance he was in possession of was. Similarly strict liability also protects the public from unlawful weapons, by ensuring that people cannot say they did not realise they had a weapon (Bradish (1990)[24]), or that they did not realise the weapon was illegal (Howells (1977)[25]).

          Another harm which strict liability protects from, is that of harm to the environment. The most important case in this area is that of Alphacell v Woodward (1972)[26], in which (unbeknown to the defendants) the pumps in their settling tank on the banks of the river Irwell became blocked, causing a large amount of effluent to enter the river. The defendantís appeal was dismissed by the House of Lords, who decided that strict liability should apply as ìIt is of the utmost importance that rivers should not be polluted.î[27] A similar approach was taken in the case of Kirkland v Robinson (1987)[28], in which the defendantís conviction for possessing wild birds (contrary to the Wildlife and Countryside Act (1981)) was upheld by the Queenís Bench Divisional Court, despite his protestations that he was unaware he was in possession of these birds. In this case the court decided that the protection of the environment was of ìoutstanding social importanceî and thus they decided that strict liability should be imposed. In both of the above cases, I would agree that the imposition of strict liability was a necessary evil, not to protect the public, but the environment from harm. This is because I believe that the environment is of such importance and can so easily be harmed (e.g. a drum of chemicals could destroy an entire river), that individual hardship in some cases is a ënecessary evilí in order to protect it. Furthermore the imposition of strict liability, particularly in environmental cases, but also in other cases as well encourages higher standards. For instance what would have happened if in Alphacell (who cut corners and expense on their pumping system), strict liability had not been imposed and the defendants had been acquitted. This would have sent a message to others that it would be economically wise to take the cheapest route and if there were to be an accident just say you did not intend to do it. Thus strict liability ensures that manufacturers, industry, builders and providers of food know to keep their operations to the highest standards or face prosecution, which is a strong deterrent against ëshoddyí operations. This advantage of strict liability was highlighted by the Privy Council in Gammon (Hong Kong) Ltd Attorney General for Hong Kong (1985), who stated that strict liability was necessary to ìencourage greater vigilance to prevent the commission of the prohibited act.î

          However this would be disputed by those opposed to strict liability who would instead argue that strict liability could not succeed in raising standards, as often the defendant has no idea they are doing wrong, an example being in the already-mentioned case of Pharmaceutical Society of Great Britain v Storkwain (1986). Furthermore the courts have ìbeen inconsistent in their attitude towards strict liability offencesî[29], which has undermined the publicís confidence in strict liability and thus would make them less inclined to agree with the statement in question. Examples of this inconsistency include the cases of Cundy v Le Coq (1884)[30] and Sheras v De Rutzen (1895)[31], both of which were licensing offences. However, in Cundy it was decided that the offence of selling intoxicating liquor to someone who is already drunk (contrary to s13 Licensing Act (1872)) was strictly liable, whereas in Sheras it was decided that serving alcohol to a police officer on duty, contrary to the same act (s16 Licensing Act 1872)) was not a strict liability offence. Similarly in Warner v Metropolitan Police Commissioner (1969) the House of Lords upheld a conviction based on strict liability for being in possession of drugs. However in Sweet v Parsley (1969) they quashed a similar conviction and restricted the circumstances in which strict liability could be used.

          Despite this, those in favour of strict liability and the statement in question argue that problems with regards to inconsistency and even individual hardship pale in insignificance when challenged by their final, and most important argument. This argument is, that without strict liability, it would be difficult, if not impossible, in some cases to prove somebodyís guilt and therefore secure a conviction. This, they argue would allow too many people to escape conviction by simply saying ìI did not intend to do Xî, as the prosecution would not have the means to prove to the contrary. Furthermore, as already mentioned, most offences are classified as ìstrictî rather than ìabsoluteî liability, which means that the defendant might be able to put forward a limited defence, which helps to lesson the unfairness of the rules.

          Additionally, one of the biggest supporters of strict liability, Barbara Wootton has commented that:

ìTraditionally, the requirement of the guilty mind is written into the actual definition of a crime. No guilty intention, no crime, is the rule. Obviously this makes sense if the lawís concern is with wickedness: where there is no guilty intention, there can be no wickedness. But it is equally obvious, on the other hand, that an action does not become innocuous merely because whoever performed it meant no harm. If the object of the criminal law is to prevent the occurrence of socially damaging actions, it would be absurd to turn a blind eye to those which were due to carelessness, negligence or even accident. The question of motivation is in the first instance irrelevant.î[32]

In this quotation, she is saying that strict liability is not even a ënecessary evilí to protect the public, instead it is something that is desirable in order to prevent the occurrence of ìsocially damaging actions.î However although she states that motive is irrelevant in the first instance, she does later concede that it is relevant with regards to sentencing, by saying that:

ìAt a later stageÖ the presence or absence of guilty intention is all-important for its effect on the appropriate measures to be taken to prevent a recurrence of the forbidden act.î

Thus in essence Woottonís argument is that strict liability is a necessary evil and that just because someone did not intend to do an act, does not mean that they should not be prosecuted. Instead she argues that in cases where this would be unjust, the lack of a guilty mind should be taken into account with regards to sentencing.

          However, this is disputed by those against strict liability, who  instead would argue that even if no, or a very light sentence is imposed on someone, this does not compensate for an unjust conviction, which would still bring social shame and other difficulties. They would argue further that strict liability could also go against the burden of proof required in criminal cases, i.e. ìBeyond all reasonable doubtî[33]. Additionally strict liability goes against all the ancient principles of the law (as shown in Cokeís maxim) and as such it may be seen as unfair and lead to less respect for the law among ordinary citizens. Perhaps this is best summed up by Dr J Edwards, a leading critic of strict liability and thus the statement t in question, who wrote that:

ìThe widespread practice of imposing criminal liability independent of any moral fault will result in  the criminal law being regarded with contempt.. and lead to a weakening of respect for the law.î

This statement effectively sums up the principle arguments and concerns of those against the imposition of strict liability.

Conclusion

In conclusion there are many arguments both for and against the imposition of strict liability and therefore the statement in question in this essay. Those against strict liability argue that the conviction of someone with no intent, or even negligence, through the use of strict liability can never be called a ënecessary evilí, no matter how important the protection of the public. Those opposing of strict liability are even more staunch in their opposition to it in offences that are ëtruly criminalí in nature, arguing that it is even more wrong to impose a criminal conviction, and possible prison sentence, if the defendant had no intent. They further add that strict liability goes against the ancient common  law principle that mens rea is necessary for the commission of an offence and they conclude by saying that strict liability leads to unjustness and thus lead to a weakening of respect for the justice system.

          Those in favour of strict liability, however, argue that it is a ënecessary evilí to protect the public from a multitude of harms, such as drugs, weapons and food unfit for human consumption. They would argue that strict liability is even more of a ënecessary evilí with regards to offences against the environment, as it is such an important thing to protect from harm. They would conclude by saying that strict liability is necessary to protect the public from harm and that it doe not have to be a necessary evil, as a lack of intent can be taken into account with regards to sentencing.

          However, as much as I sympathise with those against strict liability, I personally believe that the imposition of strict liability IS a ënecessary evilí in the fight to protect the public from harm and I believe it is even more important with regards to environmental cases, due to the irrevocable damage to it that can be caused. Despite this I do agree in some respects with those who are against the imposition of strict liability, insofar as I believe it should never be used for offences which are ëtruly criminalí in nature, due to the consequences such a conviction would entail.

          Finally, however, I believe there are reforms that could be enacted in this area to satisfy both parties in this dispute, thus ensuring that the protection strict liability offers exists, whilst at the same time ensuring it does not create harsh or unjust decisions. Firstly the decision in B (a minor) v DPP (2000) should be followed through, with strict liability being abolished in all ëtruly criminalí cases. Secondly however, there should be a ëdue diligenceí defence available, through which a defendant would be not guilty if it was found that he had taken all reasonable steps to avoid committing the offence.

If enacted, these reforms would hopefully satisfy those on both sides of the argument. This is because they should satisfy those in favour of strict liability by ensuring that the public is ëprotected from harmí, whilst at the same time ensuring that there are fewer unjust cases. This would mean that strict liability would be less of a ënecessary evilí and thereby some of the fears of those against strict liability would be allayed. However, whilst the ending of strict liability in ëtruly criminalí cases is slowly being done, as yet there are no firm proposals to enact a ëdue diligenceí clause, meaning strict liability will continue to have as many detractors as supporters for the foreseeable future.