The imposition of strict liability in certain criminal offences is a necessary evil in the fight to protect the public from harm.
Written by Shazneen Munshi
Introduction
In this essay, I am going to discuss the imposition of strict liability in certain criminal offences by analysing the issues surrounding strict liability using case law and exploring the arguments on both side of the debate. Firstly, the Latin maxim, ‘actus non facit reum nisi mens sit rea’, translates to ‘an act is not criminal in the absence of a guilty mind’. This important principal has been a bastion of the English Legal System since quoted by Coke in 1797 and means that someone cannot be convicted merely for committing the actus reus, they must also possess the requisite mens rea. However, for offences of strict liability this maxim has been abandoned and the requirement for mens rea is wavered. Strict liability means that ‘mens rea does not have to be proved with regard to one or more of the elements of the actus reus’. Thus, offences of strict liability require proof that the defendant performed the prohibited conduct but there is no need to prove that defendant had a particular state of mind (i.e. was blameworthy). The vast majority of strictly liable offences are identified by Parliament in statutes such as the Contempt of Court Act 1981 which confirms the use of the strict liability principle for the common law offence of contempt of court. However, when statutes do not specify whether mens rea is required, the courts have to decide using statutory interpretation, whether or not the crime is one of strict liability. Generally there is a presumption of mens rea, confirmed in Sweet v Parsley (1970) by the House of Lords 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 that should be considered when deciding whether the offence is one of strict liability:
“(1) there is 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 ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this 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”.
In addition, although decisions of the Privy Council are only persuasive upon English Courts, in the case of Blake (1997), these five points were specifically referred to by the Court of Appeal, when deciding whether the offence of operating a radio station without a license was one of strict liability in section 1 of the Wireless Telegraphy Act 1949. Therefore, strict liability offences are not regarded as ‘truly criminal in nature and are generally issues of public safety and social concern. These ‘less serious offences play the role of regulating people’s behaviour so that society can work effectively, rather than indicating that the defendant has behaved in a morally reprehensible way. Furthermore, strict liability crimes can be regarded as male prohibita, where the activity is wrong only because it has been prohibited (e.g. driving on the left hand side of the road). These regulatory offences often do not require proof of mens rea, because they do not carry the weight of moral censure that the more serious crimes carry.
Possibility of Injustice
The main argument against the imposition of strict liability is that it can be seen as unjust since in many cases the defendants were completely unaware that they were committing an offence and they were convicted, where in truth they may have taken all reasonable steps to avoid committing the crime but unpredictably caused harm. This can be illustrated by the case of Pharmaceutical Society of Great Britain v Storkwain Ltd. (1986) in which a pharmacist’s conviction for supplying drugs without a valid prescription was upheld, even though he did not know that the signature on the prescription was forged. He was charged under Section 58 of the Medicines Act 1968, although he had not acted intentionally, recklessly or negligently. Another example of the unfairness of strict liability can be seen in the case of Callow v Tillstone (1900) in which a butcher asked a vet to check whether a carcass was fit for human consumption. The vet declared the meat to be safe and the butcher offered it 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 seems clearly unfair as the defendant had obtained expert advice in order to avoid a prohibited consequence and was unaware that he was committing an offence. Therefore, it is evident that strict liability causes individual hardship, which is often hard to justify as a ‘necessary evil’ to protect the public from harm. To convict such defendants weakens the stigma that attaches to a criminal conviction and thus, endangers the distinction between criminal and civil law. Moreover, such draconian criminal laws may also have the effect of discouraging people from engaging in socially beneficial commercial activities such as providing goods or services, due to the possibility of conviction, even when the necessary steps are taken to avoid a prohibited consequence. In addition, the imposition of strict liability goes against one of the main principles of criminal law, which states that ‘a person or company should only be liable if they are at fault in some way.
Severe penalties
Furthermore, even though strict liability offences are often of a regulatory nature, the penalties for such infringements can be very severe. For example in the case of Gammon (Hong Kong) Ltd. and Others v Attorney General of Hong Kong (1985), 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 case of London Borough of Harrow v Shah & Shah 2000, the defendant’s were charged with selling a national lottery ticket to a boy under the age of 16, despite the fact that they had not been present when the transaction took place and had taken due care to avoid committing the crime through warning employees not to sell tickets to underage buyers. However, the maximum sentence (on indictment) was two years imprisonment. Thus, this causes problems as the harsher the sentences imposed for strict liability, the less likely people are to see strict liability as a ‘necessary evil’. 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.
Protection of the Public
In Gammon (Hong Kong) Ltd. and Others v. Attorney General of Hong Kong (1985), point four of the guidelines given by Lord Scarman states:
‘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’. Thus, strict liability is imposed in areas of life which pose a risk to others and so, is generally used for protection of the public. Therefore, this is likely to be Parliament’s main aim behind making an offence one of strict liability, as well an important issue for the courts to consider when deciding strict liability offences. Unquestionably, strict liability promotes high standards of care which protects the public from harmful practices, as highlighted by the Privy Council in the above case,
‘strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act’. Consequently, it can be seen as a valuable deterrent, particular in issues of social concern such as food hygiene and environment pollution and protects the public by obliging companies or individuals, not just to take ‘reasonable steps’, but to do everything they can to avoid the prohibited consequence. Thus, manufacturers, builders and providers of food all know that they must keep their operations to the highest standards or face prosecution. In the case of Alphacell Ltd. v Woodward (1972), the defendants had a factory on the bank of a river, however, unbeknownst to them the pumps in their settling tank became blocked, causing a large amount of effluent to enter the river. The defendants were convicted under section 2(1) of the Rivers (Prevention of Pollution) Act 1951 which made it an offence if anyone ‘causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter’. The point of law 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. On appeal, the House of Lords decided that the offence was one of strict liability since if it was not then many people in the future could avoid liability for causing pollution and Lord Salmon stated: ‘As a result many rivers which are not filthy would become filthier still and many rivers which are now clean would lose their cleanliness. 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.’ Therefore, it can be seen the imposition of strict liability was a necessary evil in this case, not to protect the public, but the environment from harm. It is also clear that the House of Lords in this case considered strict liability a valuable and effective deterrent for offences of social concern, such as pollution. Another harm that strictly liability protects against is that of dangerous drugs, which it does by ensuring that offenders cannot evade liability by arguing that they did not know the drugs were in their possession. For example, in Warner v MPC 1969, the defendant had taken possession of some boxes, left for him at café. He sold perfume as a sideline and argued that he thought that this was what the boxes contained. However, his conviction for being in possession of a prohibited drug (contrary to Section 1 of the Drugs (Prevention of misuse) Act (1964), was upheld by the House of Lords, despite the defendant’s protestations. Thus, I consider that strict liability to be a worthwhile deterrent as firms or individuals are aware that merely committing the actus reus of an offence is sufficient for conviction and so they will focus upon actually preventing the prohibited consequence from occurring, rather than just taking the reasonable steps necessary to have a valid defence. However, although strict liability may serve as a deterrent, often it is not specifically stated in statues whether an offence is one of strict liability offences. Consequently, it can be difficult to identify strict liability offences before they are brought before the courts and so people may not be deterred as they are unaware about which offences are strict liability.
Inconsistency
The courts have been inconsistent in their attitude towards strict liability offences which has undermined the public’s confidence in strict liability and therefore, would make them less inclined to agree with the statement in question. This inconsistency is illustrated by the case of Sweet v Parsley 1970, in which a teacher rented out a room to students and retained one for her occasional use when she visited the property. However, these students indulged in the use of recreational drugs unbeknownst to Sweet. This resulted in Sweet being convicted of being concerned in the management of premises which were being used for the purpose of smoking cannabis, contrary to section 55 of the Dangerous Drugs Act 1965. However, the same court quashed a similar conviction and stated that were a section in an act is silent on the matter of mens rea, it should be presumed. The latter approach has been supported more recently by the Law Lords in the cases of B(a minor) v DPP 2000 and K 2001, therefore, such a view will hopefully now prevail in ‘truly criminal’ cases.
Difficulty in proving mens rea
Without strict liability for some offences, the prosecution would have considerable difficulty in proving that the defendant had the necessary mens rea and as a result many guilty defendants would escape conviction by merely stating, ‘ I did not intend to do X’. Therefore, strict liability offences are easier for the prosecution to prove because there is no need to prove the defendant’s state of mind. For example, a motorist could only be convicted of speeding if the prosecution could prove beyond all reasonable doubt that the defendant knew he was speeding. Thus, is would become almost impossible to then succeed in a prosecution. Making an offence one of strict liability promotes efficient law enforcement and administration of the judicial process. However, enforcing strict liability offences such as speeding, is done in the interest of public safety and so can be seen as vital to protect the public from harm. In addition, in the previously discussed case of Alphacell Ltd. v Woodward (1972), 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 suggested that the use of strict liability is particularly effective in areas of social concern, where it is a difficult or even impossible task in proving mens rea. Therefore, although it may be argued that strict liability results in injustice due to the fact that people can be convicted despite doing everything possible to avoid the prohibited act, if strict liability was not used many more guilty people could take advantage of the difficulty in proving mens rea to avoid conviction and subsequently, the public would not be sufficiently protected from harm. So, the imposition of strict liability can be regarded as a ‘necessary evil’. However, most offences are classified as strict rather than absolute liability which means that the defendant might be allowed to put forward a limited defence, such as the ‘due diligence’ defence noted in Tesco v Nattrass (1972), or where he is acting under duress. Therefore, this helps to lesson the unfairness of the strict liability rules.
Reforms
There have been many suggestions for reform to strict liability in order to prevent injustice, reduce confusion for the courts in recognising strict liability offences, whilst at the same time ensuring that the public is protected from harm. Firstly, the Law commission’s 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 that mens rea is necessary for all other offences. Subsequently, this would help to clarify which offences should be deemed as strictly liable and may help strict liability to become more of an effective deterrent as potential offenders would find it easier to determine which offences are strict liability. Furthermore, another reform is that there should be a due diligence defence available in all cases of strict liability, since in Australia, Canada and New Zealand this defence is present in many statutes. An example of a due diligence offence exists in section 24 of the Trade Descriptions Act 1968 which states it is a defence if the person charged proves ‘that 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 offence’. This defence was used in the case of Tesco v Nattrass (1972), in which the company was charged for indicating goods for sale at a lower price than they really were, under section 11 of the Trade Descriptions Act 1968. However, they used the due diligence defence claiming it was the fault of the store manager for not checking the shelves thoroughly. Finally, it can be seen that the use of due diligence defences in all strict liability offences would be more effective in preventing injustice. For example, had this defence been available in the case of Callow v Tillstone (1900), the butcher could have proved that he was relying upon information supplied by the vet and had taken all reasonable precautions to prevent the commission of the offence. Thus, the unfairness in this case would have been avoided.
Conclusion
In conclusion, in relation to the statement in question, ‘The imposition of strict liability in certain criminal offences is a necessary evil in the fight to protect the public from harm’, I would argue that although strict liability can be regarded as unfair, unjust and inconsistent in some cases, it serves a valuable purpose in protecting the public from a multitude of harms such as drugs, food unfit for human consumption and irrevocable damage to the environment. Therefore, I consider that individual hardship in some cases is necessary to protect the public from harm. In addition, strict liability acts as an effective deterrent as it encourages firms and individuals to maintain the highest standards and to do everything possible to avoid a prohibited consequence, otherwise they will face prosecution. Furthermore, without strict liability for some offences, the prosecution would have great difficulty in proving that the defendant possessed the necessary mens rea and as a result many guilty defendants would escape conviction. Therefore, strict liability is certainly a ‘necessary evil’ in order to protect the public from harm and plays the role of regulating people’s behaviour so that society can work effectively. Finally, the proposals for reform, such as allowing a general defence of due diligence to be available in all cases as well as the requirement for Parliament to specifically state if an offence is one of strict liability and for the courts to presume mens rea is necessary for all other offences, serves to prevent injustice and reduce the confusion surrounding which offences should be considered strict liability.
October 2005.