'The imposition of
strict liability in certain criminal offences is a necessary evil in the fight
to protect the public from harm.'
Written by Jason
Raeburn (Nov 2006)
The
majority of criminal offences are defined by statute. There are many known as
strict liability or absolute prohibition where it is commonly stated that no
'mens rea' need be proved. In the case of R v Sandu 1997 where it was
held that mens rea need not and must not be proved. This usually relates to one
or more elements of the offence, it does not mean that no mental element be
proved at all. Lord Edmund-Davies in Whtiehouse and Lemon 1979 cited the
statement in Smith and Hogan that 'an offence is regarded and properly
regarded as one of strict liability if no mens rea need be proved to a single
element in the actus reus.' This 'single element' is of a crucial importance so
that a person with no moral culpability may be convicted. reus.
An example of this is the case of Prince, in which D was convicted of an
offence under the Offences Against the Person Act 1861. Section 55 provided
that 'whosoever shall unlawfully take ... any unmarried girl, being under the
age of sixteen years, out of the possession and against the will of her father
or mother ... shall be guilty of a misdemeanor'. D did as stated above, he was
convicted notwithstanding that he reasonably believed the girls age was eighteen.
The prohibition was, in that respect, absolute. It is clear that the offence
involved mens rea regarding other elements of the actus reus. Had D thought
that the girl was in no-ones possession or that he was authorized by her father
to accompany her, D could not have been convicted.
However there is a distinction that can be drawn
between regulatory offences and serious 'stigmatic' crimes, on the basis of Sweet
v. Parsley [1970]
AC 132, 149 (Lord Reid), and Alphacell Ltd v. Woodward
[1972]. Not every offence in criminal law
involves the sort of public condemnation by labeling the defendant a
'criminal', the conviction asserts publicly that D is a wrongdoer that is
implicit in convictions for a serious crime. A parking offence, for example,
involves little stigma attached and is therefore not perceived as reprehensibly
wrong. It would be more accurate to describe such offences as 'quasi-criminal'
(Gunston & Tee Ltd v. Ward [1902])
because they fall within the forms of the criminal law, but they lack a key
feature that sets the criminal law apart from the civil: the declaration of
wrongdoing that is implicit in the verdict against and punishment of, the
accused. Hence it was apt in Wings Ltd v. Ellis
for Lord Scarman to say that the Trade Descriptions
Act 1968 'operates by prohibiting false descriptions under the pain of
penalties enforced through the criminal courts'. But it is not a truly criminal
statute. Its purpose is not the enforcement of the criminal law but the
maintenance of trading standards. Trading standards, and public protection not
criminal behavior, are its focus and concern.
Strict liablilty, necessary to protect the public?
Strict liability leads to conviction of persons who
are, morally speaking, innocent. Therefore convicting and punishing those who
do not deserve it perpetrates a serious wrong. Thus some argue that strict
liability is a misuse of the criminal law an institution which, should be
reserved only for the regulation of serious wrongs done by culpable wrongdoers.
It does not follow, however, that all types of strict liability offences are
wrong. In particular, there are reasons for thinking that strict liability may
be legitimate in non-stigmatic 'regulatory' offences, there are many reasons
that can be considered in this essay but the focus will be on public
protection.
From
a corporate perspective, both efficiency and accuracy are the focus for
corporate defendants. The proof of
mens rea presents especial difficulty in the context of corporate bodies, since
there may be no one person who can be located so as to measure the
blameworthiness when a corporation acts and with whom the corporate mind can be
identified. Strict liability, by contrast, is much more easily applied to
corporations since it can be administered without reference to the defendant's
mental state and therefore keeps corporations strict in their quality assurance
methods for example ensuring that their food is not unfit. Smedleys Ltd v.
Breed [1974]. This is now, a requirement of
Article 6 of the European Convention on Human Rights: International
Transport Roth GMBH& ors v. Secretary of State
for Home Department [2003]. Smedeleys, a pea manufacturer was
convicted fro selling peas which contained caterpillars; this example
illustrates strict liability standing as a protection from harm for the public.
If the burden of proof in such cases would be required only to the degree of a
balance of probabilities, the majority of cases of this case would be difficult
top prove,, to require the higher standard may result in worse rather than
better justice, since it is likely to lead to defendants consistently being
punished more than they deserve but nonetheless, it appears that the normal
burden of proof beyond reasonable doubt applies: R v.
Ahmed (1984). Commercial activity needs to be
regulated in a cost-efficient manner, especially where the offences involved
are minor and occur on a widespread basis and individually involve no serious
harm. Moreover, such offences may be individually minor but can protect against
a cumulative harm that may be very substantial.
From
another perspective the public gains greater protection from pollution.
Moreover, there are likely to be fewer instances of the actus Reus when doing so
is prohibited on a strict-liability basis, because the use of strict liability
tends to encourage a higher level of precautions by potential defendants.
As Lord Salmon stated :' strict
liability encourages riparian factory owners not only to take reasonable steps
to prevent pollution but to do everything possible to ensure that they do not
cause it Alphacell Ltd v.
Woodward [1972]. Another case that reinforces
this point is Donovan J, in St Margaret's Trust Ltd [1958].
'There would be little point in enacting that no one should breach the defenses
against a flood, and at the same time excusing any one who did it innocently.'
The proposition that strict liability increases deterrence is implicit in one
of the most common arguments given for abandoning a full mens rea requirement,
that protection of the public sometimes requires a high standard of care on the
part of those who undertake potential risk creating activities.
Strict
liability – Adverse consequences
There
is however a dark side to the concept of strict liability. One of the main
principles of criminal law is that a person should only be liable if they are
at fault in some way, nevertheless imposition of strict liability contravenes
this principle as people can be guilty of a criminal act whilst having no real
fault. A case that illustrates this well is Pharmaceutical Society of Great
Britain v Storkwain Ltd 1986. Here a pharmacist's conviction was upheld for
supplying drugs without a valid prescription, even though he did not know the
signature was forged. Strict liability then can be argued as an unjust method
of enforcement for certain crimes, resulting in the innocent being labeled as
the guilty.
Furthermore,
on a corporate perspective the need for effective regulation and prosecution
of corporate defendants could alternatively be met by a negligence-based
standard. Proof of negligence can be established without reference to the company's
mental state, because negligence is based on conduct. It is, true that
negligence necessitates that the prosecution establishes an actus reus by an employee
that can be attributed to the company but the same constraint applies to strict
liability, in finding who was strictly liable.
Another problem associated with strict liability is
the unclear line that identifies an offence as a strictly liable one. In many
statutes it is not clearly defined as to whether an offence is one of strict
liability. In the case of Gammon v AC for Hong Kong 1984 Lord Scarman
attempts to give guidance on the matter. He said that the presumption that
favours mens rea is particularly strong when the offence is 'truly criminal'.
The presumption can only be displaced where the statute is concerned with an
issue of social concern. Even here the presumption of mens rea remains unless
it can be shown that the creation of strict liability will be effective to
promote the objects of the statute by creating greater vigilance.
From a personal consideration, I believe the crux of
the matter relating to strict liability and its necessity to protect the public
from harm lies in what is defined as the purpose of aim of the criminal law. If
the primary function of the courts is to prevent forbidden acts then surely
strict liability serves this purpose well and truly. If this is the objective
of the criminal courts then surely mens rea is a separate issue that is of
little significance, if a man kills another from malice aforethought, or if he
kills another through dangerous driving have they not committed the same equal
act of ending an individual's life? Insofar as the guilty mind is concerned,
the traditional definition of a crime has it as an integral part, no guilty
intention, no crime. From another point of view then one may say that the
criminal law's focus and principle aim is to prevent wickedness, where there is
no guilty intention there is no wickedness. But again reverting to the first
argument, simply because a person meant no harm does not make an act innocuous.
If then the law is concerned with preventing damaging social actions, then
there should be a combination of the two above arguments.
Reforms
In
order to avoid under deterrence, one way of manipulating the incentives created
by strict liability would be by introducing a finer-tuned, more finely graded,
structure of sanctions. That would give greater control and flexibility in
certain strict liability crimes. However, that approach may be expected to
sacrifice any advantages in efficiency that strict liability might alternatively
offer. The sanctions could simply be increased to the point where no rational
actor would contemplate taking fewer than reasonable precautions. Yet that, too,
seems undesirable, since it runs the risk of deterring the activity altogether
and on a financial basis the relative deterrent factor would vary according to
wealth.
An
example of altering the burden of proof in strict liability cases as used in
some Commonwealth jurisdictions, such as in the case of R v. City
of Sault Ste Marie (1978) and Millar v. MOT [1986]
1 NZ. Where strict liability offences require the prosecution to prove only the
actus reus beyond reasonable doubt whereby the defendant may exculpate himself
by proving absence of fault, a
'no-negligence defence' to the balance of probabilities, also known as a 'due
diligence' defence which are commonly found in consumer protection statutes.
Another possible reform to strict liability
is that proposed by the Law Commissions draft Criminal Liability (Mental
Element) Bill of 1977 that requires Parliament to specifically state whether
an offence is one of strict liability and for all other offences the court
would presume mens rea. This would aid in lessening the confusion surrounding
strict liability and the unclear line between strict liability offences.
Furthermore in the case of R v
Sault Ste Marie (1978) J Dickson whilst delivering his judgement expressed
the possibility of the categorisation of three rather than of the present two.
The first category being offences which required mens rea, the second which did
not require the prosecution to prove the existence of mens rea, the doing of
the act prima facie imports the offence leaving it to the accused to avoid
liability by proving he took all reasonable care, an objective test that would
put a reasonable man in the same circumstances. These would be properly called
'strict liability' as Mr Jutice Estey also mentioned in Hickey's case.
The third category would be of 'absolute liability' where it is not up to the
accused to exculpate himself thorough lack of guilt.
Conclusion
It is
arguable that there are instrumental benefits to be gained from the device of
strict liability, although the extent of those benefits is uncertain. The
question to be considered next is
whether
those benefits are sufficient to overcome the intrinsic moral objections to
strict liability in criminal offences in order to protect the public from harm.
The injustices of strict liability can be illustrated in such cases as Storkwain
but I believe that the intrinsic benefits of strict liability conversely outweigh
the disadvantages of its existence, it is therefore a 'necessary evil' that has
bad qualities on the one hand, that is necessary to protect the 'public from
harm'. The three way categorisation stated in stated in Sault Ste Marie, above
could be a possible way of lessening the 'evils' of strict liability by
providing a defence for innocent defendants.
Bibliography
Smith and Hogan –
'Criminal law cases and materials' 7th edition (1999) - Butterworth's
Diana Roe – 'Criminal
Law' 3rd edition (2005)
Storey T. and Lidbury
- 'Criminal law' (2004)