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

Written by Lisa Incledon

The Latin maxim åactus non facit reum nisi mens sit reaπ translates as an act is not criminal in the absence of a guilty mind; this is an important principle in English law, meaning someone cannot be convicted merely for committing the actus reus, they must also have the mens rea. However for offences of strict liability the requirement for mens rea is wavered. Strict liability offences may be specifically identified by Parliament in statutes; such as the Contempt of Court Act 1981, section 1 of which confirms the use of the åstrict liability ruleπ for the common law offence of contempt. However, when statutes do not specify whether mens rea is required, then the courts have to decide using statutory interpretation, whether or not the offence is one of strict liability. In general there is a presumption of mens rea, confirmed by the House of Lords in the case of Sweet v Parsley (1970), and in the case of Gammon (Hong Kong) Ltd and Others v. Attorney General of Hong Kong (1985) the Privy Council set out five points to be considered when deciding if an offence is one of strict liability.

Lord Scarman stated: ≥In their Lordships opinion, the law relevant to this appeal may be stated in the following propositions: (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is åtruly criminalπ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.≤

Although decisions by the Privy Council are only persuasive upon English courts, these five points were specifically referred to by the Court of Appeal in the case of Blake (1997) when determining whether the offence of using a radio station without a license in section 1 of the Wireless Telegraphy Act 1949 was one of strict liability.

Thus offences of strict liability are not usually those considered åtruly criminalπ and are generally issues of social concern and public safety. The use of strict liability does have some disadvantages, particularly in some situations, where it can be seen as unfair, but, as I will demonstrate, these have to be balanced against the importance of public safety.

Possibility of Injustice

The main criticism of strict liability is that it can be seen as unjust, since people can be convicted where in truth they may have taken all reasonable steps to avoid committing the offence, and are unaware that they were in fact committing such an offence. An example of this situation is the case of Larsonneur (1933); in this case the defendant had gone to Ireland after her permission to be in the UK had expired, however she was then deported from Ireland and thus brought back to the UK against her will and subsequently found guilty of åbeing an alien to whom leave to land in the United Kingdom has been refusedπ under the Aliens Order 1920, despite having no intention to return to the UK. This seems unfair, since the defendant had no choice and did not wish to return to the UK. Another example of this can be seen in the case of Callow v Tillstone (1900); in this case a butcher asked a vet to check a carcass was fit for human consumption. The vet advised him that it was and the butcher offered the meat for sale. However the vet had been negligent and as a result the butcher was convicted of exposing unsound meat for sale, despite exercising due care. This clearly seems unfair, since the defendant was completely unaware that he was committing the offence and had obtained expert advice in order to avoid doing so. The only real way the butcher could have avoided liability in the above situation was not offering the meat for sale. This demonstrates another possible disadvantage, since it is suggested that the imposition of strict liability may dissuade people from providing goods or services (such as meat in this case) altogether, due to the possibility of conviction even when doing everything possible to avoid a prohibited consequence.

Seriousness of Offence and Presumption of Mens Rea

In the case of Sherras v De Rutzen (1895) Wright J stated: there was ≥a presumption that mens rea or evil intention, or knowledge of the wrongfulness of the act is an essential ingredient of every offence.≤

In the case of Sweet v Parsley (1970) Sweet rented out rooms to students and kept one room for her own occasional use when she visited the property to collect rent. However the rest of the time the students had the property to themselves and unbeknownst to Sweet were taking drugs. However Sweet was convicted of being concerned in the management of premises, which were used for the purpose of smoking cannabis, contrary to section 5 of the Dangerous Drugs Act 1965. The House of Lords quashed her conviction and confirmed the presumption of mens rea, as well as indicating that when deciding whether an offence is one of strict liability a distinction should be made between true crimes and regulatory offences. Thus, when considering the potential injustice caused by strict liability, it is also important to take into account the seriousness of the offences. In general strict liability offences are those of a less serious nature, such as regulatory offences relating to public safety. This is re-affirmed by point (2) of the guidelines set out by the Privy Council in the case of Gammon (Hong Kong) Ltd and Others v. Attorney General of Hong Kong (1985) which states: ≥the presumption [of mens rea] is particularly strong where the offence is åtruly criminalπ in character≤. Truly criminal offences are generally those which are considered immoral and to which some sort of social stigma may be attached. In contrast strict liability offences are likely to have no social stigma and often do not result in loss of liberty. This point was emphasised by the House of Lords in the case of B (a minor) v DPP (2000), in which the House of Lords restricted the use of strict liability. In this case B, a 15 year old boy, was convicted of inciting a child under the age of 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, after it was decided that liability was strict in relation to the childπs age and as such the fact that B honestly believed she was older was not a defence. However the House of Lords decided that the offence was not one of strict liability, and Lord Nicholls stated: ≥The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction.≤ Thus it is clear that for more serious criminal offences the presumption of mens rea is particularly strong and not easily displaced. However, some serious offences are strict liability offences, those contained within sections 5, 6 and 7 of the Sexual Offences Act 2003 ; rape of a child under 13, assault of a child under 13 by penetration and sexual assault of a child under 13 are all strict liability with regard to the age of the child. This is made clear by the Act itself, and thus Parliament has specifically decided to make these offences strict liability despite their seriousness and truly criminal nature; however it can easily be justified by the need to protect children from harm.

Protection of the Public

Point 4 of the guidelines given by Lord Scarman in Gammon (Hong Kong) Ltd and Others v. Attorney General of Hong Kong (1985) states: åthe only situation in which the presumption [of mens rea] can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issueπ, thus strict liability is only imposed where the issue is one of social concern, and therefore, in the majority of cases, is used for protection of the public. This is clearly very important and is likely to be Parliamentπs main aim behind making an offence one of strict liability, as well as an important issue for the courts to consider when deciding whether an offence is one of strict liability. Indeed, strict liability promotes high standards of care thus protecting the public from dangerous practices, and as such can be seen as a valuable deterrent, particularly in issues of social concern such as food hygiene and environmental pollution. It protects the public by compelling firms or individuals to do everything they can to avoid the prohibited consequence, rather than simply all that is necessary to avoid liability. In the case of Alphacell Ltd. v Woodward (1972) the appellants had been convicted under section 2(1) of the Rivers (Prevention of Pollution) Act 1951 which made it an offence if anyone åcauses or knowingly permits to enter a stream any poisonous, noxious or polluting matter.π The point to be decided by the House of Lords was whether the offence could be committed by a person who had no knowledge of the fact that polluting matter was entering the stream and had not been negligent in any relevant respect. The House of Lords decided that the offence was one of strict liability since if it were not many could avoid liability for causing pollution and Lord Salmon stated: ≥As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate. Hence, section 2(1)(a) which 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.≤

Thus it is clear that the House of Lords in this case considered strict liability a valuable tool for the protection of the public, and a useful and effective deterrent for offences of social concern, such as pollution.

It has been suggested that strict liability cannot be an effective deterrent, since if a firm or individual has already taken all reasonable steps to prevent a prohibited consequence then it is unlikely that strict liability will encourage them to do more. In the case of City of Saulte Ste Marie (1978) the Supreme Court of Canada expressed this view, stating: ≥If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes, it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others?≤

However I consider that strict liability can be a worthwhile and effective deterrent. This is because firms or individuals are aware that merely the actus reus of the offence is sufficient for a conviction and as such will focus not upon taking reasonable steps necessary to have a valid defence, but upon actually preventing the prohibited consequence from occurring.

A final point here, is that although strict liability may function as a deterrent; often Parliament does not specifically state whether an offence is one of strict liability and it can be difficult to recognise strict liability offences before they are brought before the courts meaning people may not be deterred, because they are not aware of which offences are strict liability.

Difficulty in Proving Mens Rea

For some offences the prosecution would have considerable difficulty in proving the defendant had the necessary mens rea, if the offence was not one of strict liability, and as a result many guilty defendants may escape conviction. If defendants were required to have committed the offence with some form of mens rea, such as åknowinglyπ or årecklesslyπ, then it would make some convictions very difficult. For example, if a person could only be convicted of speeding if the prosecution could prove beyond all reasonable doubt that the defendant was aware he was speeding, then it would be almost impossible to convict. However, enforcing speed limits, as with many other strict liability offences, is done in the interest of public safety and as such can be seen as important to protect the public from harm.

In the case of Alphacell Ltd. v Woodward (1972), previously discussed, Lord Salmon stated: ≥If this appeal succeeded and it were held to be the law that no conviction could be obtained under the Act of 1951 unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners.≤ Thus he indicated that the use of strict liability is particularly effective in issues of social concern where proving mens rea could be a difficult or even impossible task, allowing the guilty to avoid conviction. Thus, although it may be argued that strict liability results in injustice with people being convicted despite doing everything possible to avoid the prohibited consequence, if strict liability were not used many more guilty people could use the difficulty in proving mens rea to avoid conviction and therefore the public would not be sufficiently protected from harm.

Possible Reforms

There are many suggestions for reforms to strict liability, the Law Commissionπs draft Criminal Liability (Mental Element) Bill of 1977 requires Parliament to specifically state whether an offence is one of strict liability, and the courts to presume mens rea is required for all other offences. This would help to reduce confusion surrounding which offences should be deemed strict liability, and may help strict liability to become a more effective deterrent, since potential offenders would easily be able to determine which offences were of strict liability.

Also, a defence of due diligence could be made available in all cases of strict liability, as in Australia, Canada and New Zealand. Currently due diligence defences are contained within many statutes; an example of a due diligence offence is in section 24 of the Trade Descriptions Act 1968 which states it is a defence if the person charged proves åthat the commission of the offence was due to a mistake or to reliance on information supplied to them or the act or default of another person, an accident or some other cause beyond their control; and that they took all reasonable precautions and exercised all due diligence to avoid commission of such an offenceπ. This was used in the case of Tesco Ltd v Nattrass (1972) in which the company was charged with indicating goods were on sale at a lower price than they really were, which is contained in section 11 of the Trade Descriptions Act 1968, and used the due diligence defence to blame the manager of the store where the incorrect price was displayed for not checking shelves thoroughly.

It can be seen that a due diligence defence could prevent injustice in some cases where the offence is one of strict liability, for example in the case of Callow v Tillstone (1900) had a due diligence defence been available, the butcher could have proved that he was relying upon information supplied by the vet and that he had taken all reasonable precautions to prevent the commission of the offence and thus the injustice in this case would have been prevented. Although due diligence defences can be found in many statutes they are not available for all strict liability offences, which would be much more effective in preventing injustice.

Conclusion

In conclusion I would argue that strict liability, although it can be seen as unfair and unjust in some cases, serves a valuable purpose in protecting the public. Strict liability should perhaps be reformed in some way, such as allowing a general defence of due diligence to be available in all cases, which may prevent the injustice which is the basis for most criticisms.

However in allowing conviction where proving mens rea would be near impossible, and, most importantly, providing a strong deterrent, which encourages firms and individuals to do everything possible to avoid a prohibited consequence, strict liability is very effective, and certainly a ånecessary evilπ in order to protect the public from harm.

Bibliography

Storey T. and Lidbury A. åCriminal Lawπ – Willan Publishing (2004)

Roe D. åCriminal Lawπ – Hodder and Stoughton (1999)

Elliot C. and Quinn F. åCriminal Lawπ – Pearson (2004)

Herring J. åCriminal Law Text, Cases and Materialsπ – Oxford University Press (2004)

Allen M. åElliott and Woodπs Cases and Materials on Criminal Lawπ – Sweet and Maxwell (2001)

Sweet v Parsley (1970)

Gammon (Hong Kong) Ltd and Others v. Attorney General of Hong Kong (1985)

Blake (1997)

Larsonneur (1933)

Callow v Tillstone (1900)

Sherras v De Rutzen (1895)

B (a minor) v DPP (2000)

Alphacell Ltd. v Woodward (1972)

City of Saulte Ste Marie (1978)

Tesco Ltd v Nattrass (1972)