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

by Charlotte Mitchell-Dunne

With a majority of offences there is a general presumption that in order for a person to be found guilty mens rea is required, and this was certainly a bastion of the English legal system during the earlier years however this presumption in recent years can be displaced by strict liability offences, thus leading to great debate over the issue. Offences of strict liability are those in which it has been decided that mens rea does not have to be proven with regard to one or more of the elements of the actus reus in order for a person to be convicted. Taking this into consideration it can be seen that only an element of actus reus of the crime is required, meaning that in many cases a person can be convicted of a crime whether they intended to commit it or not. At face value this could seem unfair as a person is able to be convicted without having the intention to commit a crime however on the other hand it could be argued that in order to protect society this is a necessary evil. Within this essay I will discuss the moral and legal issues surrounding the imposition of strict liability and in doing so I will highlighting particular case law relating to the relevant arguments I intent to present.

Definition of strict liability
As already explained within the introduction, in its most basic form strict liability offences are those in which the mens rea does not have to be proven in order for a person to be found guilty provided one or more elements of the actus reus are present . 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. Mens rea consists of two elements. It consists first of all of the intention to commit an act, and secondly of a knowledge of the circumstances that make that act a criminal offence.

The first type of strict 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. A strong example to demonstrate the type of strict liability lays in the case of R v Larsonneur (1933) within this case the defendant was from a foreign country and thus an alien in the term used at that time. He had been ordered to leave the UK. The defendant decided to go to Eire but the Irish police deported her and took her back to custody in the UK where she was put in a cell the defendant didn’t want to be in the UK and her act of returning was no voluntary, thus they had no mens rea however she was still found guilty due to circumstances out of her control under S18 of the Alien Order (1920) as this is an offence of strict liability. A different example of absolute liability is Winzar V Chief Constable of Kent (1983) within this case the defendant was taken to hospital on a stretcher and when examined it was found that he was not ill but drunk. The defendant was subsequently told to leave hospital but was later found slumped on a seat in the hospital. the police were called and the took the defendant to the roadway outside the hospital. They formed the opinion that he was drunk thus took him to the station and charged him with being found drunk in the highway contrary to S12 of the Licensing Act the defendant was found guilty and the divisional court upheld the conviction.

The second type of strict liability is a more common type.With the type of 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. An example which clarifies this is in the case of R V Prince (1875) within this case the defendant knew that the girl he took was in the possession of her father however he thought she was aged 18 and wasn’t aware she was only 16.He was convicted because he had the intention to remove the girl from her fathers possession whether he assumed her age was 18 or not . With this case it can be seen that the mens rea was required for part of the actus reus and he had the necessary intentions. However the court held that knowledge of her age was not required, as on this aspect of the offence there was strict liability. A similar case to this six years earlier is the case of R v Hibbert (1869) within this case the defendant met a 14year old girl on the street. He took her to another place and had sexual intercourse with her. However in this case the defendant was found not guilty because there was a question as to whether she was in the custody of her father. Even thought the age aspect was an offence of strict liability mens rea was required for the removal aspect and in this the necessary intention was not proven. A more modern example of this type of strict liability is London Borough of Harrow v Shah & Shah (2000) within this case the defendants were convicted of selling a National Lottery ticket to someone under he age of 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 defendants 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. Given the following case law presented it is important to analyse the argument which can stem from these.

Ideas supporting the idea that the imposition of strict liability in certain criminal offences is a necessary evil to protect the public

The main reason put forward to justify strict liability the protection of the public, by regulating activities ‘involving potential danger to the public health, safety or morals’. By making an offence one of strict liability it promotes greater care over these matters and ensures standards are higher in areas such a hygiene, food production or transport regulation to name but a few examples. It ensure businesses run properly and encourages caution in certain areas such as age restrictions this inevitable enables law enforcements to give a stronger reinforcement of the law. It also gives the impression that individual hardship in some cases is necessary to protect the public from a multitude of harms, some of which are detailed below. On this basis taking the example of London Borough of Harrow v Shah & Shah (2000) by making the offence under the National Lottery Act (1993) one of strictly liability it ensure all shop keeper take more care when selling lottery tickets thus ensuring they check the age of customers before selling them the ticket. This is ultimately because the implication which apply when they fail to do so are great. Taking this example into consideration it could be said that strict liability offences are a necessary evil to protect the public as within this example it leads to a more careful enforcement of the law in place. A similar example to this include the case of Smedleys v Breed (1974) within this case the defendant is a large scale manufacturer of tinned peas, producing over 3 million tins in a seven week season, who was convicted under the Food and Drugs Act (1955) (now Food and Safety Act 1990). When one tin was found to contain a small caterpillar. Within this case the House of Lords dismissed the company’s appeal explaining it was an offence of strict liability and was an example of one of the regulatory offences. Therefore in this case it was not sufficient to even show that the company had taken all reasonable care to avoid such an event happening. This precaution may seem harsh however it prevents manufactures claiming no responsibility and means that the consumer gets the safest goods or at worst is rewarded if those goods are not of a safe standard.

One complex area strict liability covers is the 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 defence 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 didn’t know what the substance was, as he was still in possession of the substance. This seems unfair if the defendant truly did not know the nature of the substance, however within the law it seems to be a poor 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 defences against charges of possession. In R v Hallam (1957) the defendant was charged with knowingly possessing explosives. In his defence 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 defences 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. Finally a similar outcome was decided upon in Warner v Metropolitan Police Commissioner (1969), the defendant was convicted for being in possession of a prohibited drug contrary to S1 of the Drugs (Prevention of Misuse) Act (1964)) The drugs were in one of two parcels that the Defendant said he believed contained perfume.

The House of Lords held that the offence was one of strict liability, thus mens rea was unnecessary. The fact that D was in possession of the contents of the parcel was sufficient. It was then said in the obiter dictar by Lord Reid, Lord Pearce and Lord Wilberforce that if there was a strong inference that possession of a package by an accused was possession of its contents could be rebutted by raising real doubt either (a) whether 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. Strict liability can also protects the public from unlawful weapons, by ensuring that people cannot say they did not realise they had a weapon in their possession or that they did not realise the weapon was illegal this was upheld in the case of R V Howells (1977). 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), 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. There was no evidence that the Defendant had been negligent, or even knew that the pollution was leaking out. However the House of Lords held that in the normal meaning of the word, the company had caused the pollution to enter the water and their conviction was upheld.

A similar approach was taken in the case of Kirkland v Robinson (1987), in which the defendant was convicted for possessing wild birds (contrary to the Wildlife and Countryside Act (1981)) her conviction was upheld on appeal by the Queens 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 outstanding social importance therefore they decided that strict liability should be imposed.

It can be seen from all the following cases that 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 poor operations. This advantage of strict liability was highlighted by the Privy Council in Gammon (Hong Kong) Ltd Attorney General for Hong Kong (1985), Within this case the Defendants were involved in building works in Hong Kong, when part of a building they were constructing fell down. It was found that the collapse had occurred because the builders had failed to follow the original plans exactly. Hong Kong building regulations prohibited diverting in any substantial way from the plans.
On appeal against conviction, the Defendants argued that they were not liable because they had not know that the changes they had made were substantial ones. However, the court held that the relevant regulations created the offences of strict liability and the convictions were upheld. It was confirmed that 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 could be displaced by strict liability offences. They also stated that strict liability was necessary to encourage greater vigilance to prevent the commission of the prohibited act. These points clearly point out that there is a need for strict liability as it raises standards and cause members of the public to be cautious of their action all these advantages thus it reinforces the law. However those opposing strict liability offences may argue that the law does not raise standards as in most cases the defendant has no idea that they are doing wrong the most prominent example of this being Pharmaceutical Society of Great Britain v Storkwain (1986) In this case the defendant was changed under S58(2)of the Medicine Act(1968) which says that no one shall prescribe certain drugs without a doctors prescription but in this case the prescriptions were later found to be forged. There was no finding that the defendant ant had acted dishonestly improperly or even negligently. The forge was sufficient to deceive a pharmacist . Despite this the House of Lords up held the conviction. Explaining that the pharmacist had supplied drugs because of a forged prescription and that was enough to secure a conviction.

Another argument to support strict liability is that without strict liability, it would be difficult, if not impossible, in some cases to prove if somebody is guilt and therefore secure a conviction is almost impossible. Meaning too many people would escape conviction by simply saying I did not intend to do what ever they did, as the prosecution would not have the means to prove to the contrary. Furthermore, as already mentioned, most offences are classified as strict rather than absolute liability, which means that the defendant might be able to put forward a limited defence, which helps to lesson the unfairness of the rules. Although all of these points support the idea that strict liability is a necessary evil in order to protect the public, there are a number of criticisms of these views which I intend to outline.

Ideas against the idea that the imposition of strict liability in certain criminal offences is a necessary evil to protect the public

The most dominant argument against strict liability offences is that although many offences are involving regulations (for example the strict liability offence of selling a lottery ticket to someone under the age of sixteen), some strict liability offences are of a criminal. This means that the necessary evil said to be held in strict liability cases could lead to the possible punishment of the loss of a persons liberty, inevitably for something they didn’t intend to do. This goes against the original principles of law and leads to a lesser standard of proof having to be presented in order to secure a conviction opening up more room for doubt to be present in the minds of those convicting a defendant. One of the first criminal cases involving strict liability is R V Prince and the fact of this case have already been mentioned however analysing this cases with the view of those against strict liability it can be seen that a great injustice is present, as despite the fact that Prince believed the girl to be eighteen he was still convicted. Those against the imposition of strict liability would point out that strict liability is flawed as it allows someone who had no intent to commit a crime to be convicted of a criminal offence, it has also set a precedent that has been 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. Those against the imposition would point out that the fact that such ancient precedent has underpinned such a vital part of the English Legal System for so long is wrong and that the knowledge that the judgement in this case was based on is even older. This is because, Blackburn J in his judgement infers parliaments 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 1970s was set from a judge in 1875 inferring parliaments 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.

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), within this case the Defendant was a landlady who did not live on the premises and only visited occasionally. Her lodgers smoked cannabis and she was charged with being concerned in the management of the premises which were used for the purpose of smoking cannabis. It was not proved that she knew of the smoking.

The House of Lord quashed the conviction and said it was not an offence of strict liability because knowledge of the use of the premises was essential to the offence and since she had no such knowledge, she did not commit the offence. Another example where the House of Lord quashed a conviction lies in the case of B (a minor) v DPP (2000) within this case 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.

In both of these examples appeal of the first instance in the Divisional Court were dismissed. This gave great concern to the house of Lords who commented on How it come about that the Divisional Court has felt bound to reach such an obviously unjust result. This ultimately shows that higher courts such as the divisional court still feel bound by strict liability law which produces absurd results. There have been a number of case were the law on strict liability has produced absurd results for example the case of Pharmaceutical Society of Great Britain v Storkwain (1986) (or R V Storkwain(1986))The facts of this case have already been mentioned previously however from them it seems that the defendant was convicted of a crime that not he didn’t knowingly do but also that he could not prevent or take any further precautions to prevent. This example show a extremely unjust verdict and inevitably leave a person thinking whether all of the possibilities of circumstance have always been thought through properly by parliament. It can been seen from the following examples that crimes of strict liability can often lead to absurd and unjust results for the individual. There is also problems with the age and effectiveness of strict liability offences the law was made in the 1800’s yet it can be seen that it is still strictly followed y the divisional courts and although the house of Lords have attempted reform by overturning a number of conviction it must be suggested that this progress is slow and with may cases they will not reach the House of Lords thus they must stick with a unjust decision based upon a dated law which is religiously enforced by the divisional courts.

Conclusion
In conclusion I feel that strict liability law is necessary in criminal cases as there are a number of offences where the defence is either non plausible or unacceptable, it inevitably allows the burden of proof in complex cases such a possession to be lower thus causing more effective conviction rate. It allows courts to save time and money and stop ridiculous defences being brought forward. Strict liability offences also encourage caution in businesses and industry and reinforce the law in order to protect the majority. However often in doing so the law often unjustly punishes the minority or individual and in many ways this is unacceptable. Another argument against strict liability which must be considered is the fact that the courts often face difficulty identifying strict liability offences and are inconsistent with their attitude and decisions. With a number of instances where there is often a marked lack of clarity in judgements.
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. However they are a long way from being totally eradicated.

Bibliography
Criminal law for A2 - Jacqueline Martin
A2 Law for OCR - Jimmy O’Riordan
Criminal Law sixth ed-Elliot and Quinn
Case help sheet
Class materials