“The imposition of strict liability in certain offences is a necessary evil in the fight to protect the public from harm.”
Written by Emma Storey (Oct 2005)
When considering this question, the first thing that must be discussed is what exactly does strict liability in an offence actually mean? It does not mean, contrary to popular belief that no mens rea is needed, instead, strict liability means that mens rea ‘does not have to be proven with regard to one or more of the elements of the actus reas’. Therefore, if the offence in question is one of strict liability, the defendant may be found guilty without any proof of fault on their part.
There are two types of liability and in order to define them properly, it is necessary to have a definition of mens rea. One definition could be said to be, ‘mens 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 offence’.
The first type of liability is absolute liability, in which no part of the mens rea need be proved. Thus, the defendant need not have intended to commit an act nor need he have a knowledge of the circumstances that made that act a criminal offence. In addition, there need not be a voluntary act, the defendant being guilty purely because a state of affairs exists. This can be seen in the case of R v Larsonneur. In this case, 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 England where she was arrested and found guilty through circumstances beyond her control. Another example is the case of Winzer V Chief Constable of Kent (1983). In this case a drunken man was asked to leave a hospital, which he did not, so the police were called. When the police arrived, they removed him outside and then arrested him and charged him with the offence of being drunk on the highway, contrary to Section 2 of the Licensing Act 1872.
The second and more common type of liability is strict liability. With this type of liability is it at least necessary to have intended to have committed the specified offence, but the fact that the offence is one of strict liability means that the defendant need not have any knowledge of the circumstances that make this a criminal offence. An example of this is R v Prince (1875). The defendant was charged with the offence of taking a girl under the age of 16 out of the possession of her father, mother or any other person in lawful charge of her, contrary to Section 55 of the Offences Against the Persons Act 1861. This happened despite the fact he believed the girl to be 18 years of age, however she was in fact only 13 years of age. On appeal, the court stressed the relevant section of the statute did not contain the words ‘knowingly’ or ‘maliciously’, so liability arose when Prince merely committed the act. It was also noted that parliament had designed the offence to be one of strict liability.
There are two categories of strict liability offences; regulatory offences and truly criminal offences. There are perhaps several hundred regulatory offences and an example of this can be seen in the case of Shah and Shah (2000). The defendants were charged with selling a National Lottery ticket to a boy under the legal age limit of 16, despite the fact neither defendants were present when the transaction took place. They had also placed written warning to customers and staff and also verbally warned them. The employee who sold the ticket believed the boy was over the legal age limit but did not ask him for identification.
The precedent established in Prince (1875), though not specifically overruled, was seriously weakened by the case of B (a minor) v DPP (2002). In this case, a boy of 15 was charged with inciting a girl under 14 years of age to perform an act of groce indecency with him. It was the Youth Court who sought the advice of the Divisional court on a point of law as to whether the boy would have a defence if he genuinely believed the girl to be over 14 years of age. The relevant section of The Indecency With Children Act 1960 made no mention of this, therefore the appeal decided this matter was one of strict liability. However, on appeal to the House of Lords, a markedly different approach was taken. Their Lordships argued that there was no general consensus of opinion that strict liability was necessary to the law in sexual matters, so took the view that, if interpretation of the current offence was being gleamed from another statute (In this case the Sexual Offences Act 1956) that the other act had to ‘give compelling guidance on the matter’. Therefore, the defendants conviction in this case was quashed.
This case along with the case of Sweet v Parsley (1970) shows that the consequences concerning some offences labelled strict liability are not always clearly thought out. In this case, a school teacher was renting out a farm house to a group of students who used it to smoke cannabis. The teacher was charged with being concerned in the management of a building used for the purposes of smoking cannabis, contrary to the Section 5 of the Dangerous Drugs Act (1965). This section was silent on the matter of mens rea and both the court of first instance and the Divisional court decided she was strictly liable. Her case then reached the House of Lords where Lord Reid stated that strict liability may be appropriate for the former type of offence – regulatory offences - but felt there was a strong presumption that mens rea was needed for the latter type of crime of ‘truly criminal offences’. Sweet’s conviction was therefore quashed. Following this, the Dangerous Drugs Act was replaced by the Misuse of Drugs Act and the relevant sections corresponding to the one affecting Sweet now require knowledge before liability is imposed.
I will now go on to directly answer the question asked in this essay – is strict liability a necessary evil to protect the public or not?
Strict liability is necessary in many aspects of criminal law and this is especially true of such offences and drink driving as convictions would be very difficult if recklessness, negligence or intent had to be proved every time.
Strict liability is also necessary in other cases. For example, to protect the public against unfit food. In the case of Smedleys v Breed (1974), four tins of peas were found to contain caterpillars. 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 is necessary here, as companies should not be allowed to supply food unfit for human consumption under any circumstances.
Another necessary reason for strict liability is to protect the public against pollution. In Alphacell v Woodward (1972) the defendants conviction for causing polluted matter to enter a river was upheld despite the claims that the company was unaware of any obstruction to it’s pumps. Lord Salmon stated that if the offence was not one of strict liability then a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result many rivers which are filthy now would become filthier still and those that are now clean would lose their cleanliness. The fact that this offence is a strict liability one has it’s obvious advantages.
Also, using strict liability, the countryside is better protected. In Kirkland v Robinson (1987), the Divisional Court of the QBD refused to accept the defendants claim that he was he was in possession of wild birds contrary to the Wildlife and Countryside Act (1981). This is necessary to protect the rapidly deteriorating countryside and wildlife that has fallen victim to a society where it is not properly defended.
Another necessary strict liability idea is that it will deter people from holding unlawful weapons. This can be seen in the case of Howells (1977). The defendant’s conviction for failing to obtains a firearms certificate was upheld, despite the fact the he believed his gun was an antique and he did not need one. Both parliament and the courts believe that the holding of weapons capable of causing harm should be strictly controlled even if this should result in the occasional injustice. I agree with this, due to the fact it will mean the wider public is protected and I believe this to be more important than occasional individual injustice.
Another necessary imposition of strict liability is the fact that there is a greater protection from illegal broadcasts. In the case of Blake 1997 a conviction under the Wireless Telegraphy Act 1949 was upheld, when a defendant operated a radio station without a license, despite his claim that he was just making tapes. The court decided that the act had been designed to deter such practices, which might otherwise interfere with emergency communications. Obviously this is clearly necessary.
Also, using strict liability, there is a more effective protection against dangerous drugs. It is imposed in some drug offences both to protect the public and to make it more difficult for offenders to evade liability by arguing that they did not know the drugs were in their possession. In Warner v MPC 1969) the defendant had taken possession of some boxes, left for him at a café. He sold perfume as a sideline and argued that he thought that this was what the boxes contained, when in fact they contained drugs. Despite this, the conviction was upheld. Obviously, this is necessary to protect the public from drugs and offenders being able to escape punishment.
There are also other arguments for strict liability and these include public protection from unsafe building, high standards being obtained, successful prosecution having a deterrent value and it allows a prosecution to be brought in difficult cases.
There are also many arguments against the imposition of strict liability. One arguments it that it can be unjust. This goes against one of the main principles in criminal law, that a person/s should only be liable if they are at fault in some way. In many cases described above, the defendants were completely unaware that an offence was being committed. Consider the case of Pharmaceutical society of Great Britain v Storkwain Ltd (1986). A pharmacists conviction for supplying drugs without a valid prescription was upheld, even though he did not know that the signature was forged. It could be argued that it would be fairer in such cases only to impose liability for negligent behaviour, giving the truly innocent a defence.
It could also be argued that it may not succeed in raising standards if the party is not aware they are doing any wrong doing and there is little concrete proof that strict liability works in other cases. It could instead create feelings of resentment and injustice, which might lead to a loss of respect for the law. Also, the courts often face difficulties in identifying strict liability offences. In many statutes, it is not always clear whether an offence of this nature has been committed. Some guidance in this problem was given in the case of Gammon v AG for Hong Kong (1984). The court of appeal reiterated the view expressed in Sweet v Parsley that crimes could be divided into ones which are ‘purely criminal’ into character and those that were merely regulatory. In truly criminal cases, a presumption clearly exists that mens rea is required before an individual or company can be convicted. With regulatory offences, there is also a presumption that mens rea is necessary, which normally would predominate, unless, however, an issue of social concern or public safety is involved. It may then be necessary to impose liability in order to encourage greater vigilance and higher standards.
We must also consider the argument that the courts have been inconsistent in their attitude towards strict liability. In some instances the take a very harsh view, whereas in similar cases considerable tolerance has been shown. This could be noted from the cases Warner and Sweet, mentioned earlier. It must also be considered that there is sometimes a lack of clarity in some judgements. Legal academics may also criticise the decisions of the judges, however I feel this has nothing to do with whether imposing strict liability is a necessary evil.
We must also consider the fact that when we convict someone of a strict liability offence – we are giving them a criminal conviction. While this may be of no concern to someone already with a long criminal record, imagine an elderly person who has never broken the law before. The stigma of a criminal conviction is one that is quite hard to shake off and sometime may be considered very harsh for someone who has not even realised they have broken the law. Also, the penalties for such infringements may also be very severe. Even though offences are often of a regulatory nature, with fairly minor fines, this is not always the case. The earlier mentioned case of Gammon carried a maximum penalty of $250,000 and imprisonment for three years, and also the offence committed in Shah carried a maximum of two years imprisonment. In truly criminal cases, even lengthier sentences are possible.
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. 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.
Overall, I feel personally that strict liability is a invaluable part of our criminal legal system and it should never be disregarded. However, I do feel there are certain exceptions where it can produce fairly unjust results and maybe these cases should be looked upon in a fairer light, such as the case of Shah and Shah. However, this then raises the question of where to draw the line. One benefit of strict liability is that it acts as a very strong deterrent, especially to crimes such as drink driving, and the view that the courts took on this crime also helped to changed how the crime was viewed by the public and helpfully gave it the reputation of being completely unacceptable. Strict liability should be taken into consideration when creating new statutes as they may be referred to in future case law to help judges make decisions and overall, I believe it should just be used wisely. There should be no hard, fast rules on how to use it and I believe a slightly more flexible approach would help to solve some of the problems strict liability causes. Above all these points though, it is clear to see, strict liability is a necessary evil, which protects the public from harm.