The Imposition of Strict Liability in Certain Criminal Offences is a Necessary Evil in the Fight to Protect the Public from Harm. By Sarah Neville Introduction
In Criminal Law, Third Edition, the authors Tony Storey and Alan Lidbury write that: ‘The actus reus (guilty act) and mens rea (guilty mind) elements must all be present. If any are missing, the defendant cannot be guilty of that crime. The actus reus and mens rea must coincide at the same point in time. time. If they do not, the the defendant cannot be found guilty of that offence.’ Therefore, if there is no actus reus, there is no crime, and if there is no mens rea, then there cannot be a conviction, as there needs to be mens rea and actus reus in order to be convicted of a crime. However, this is not completely true, the exception to this rule is strict liability. What is Strict Liability?
There are two different different types of liability. liability. These are strict liability liability and absolute liability. Absolute liability is where; even a lack of a voluntary act by the defendant will not allow them to avoid liability. liability. Absolute liability is is where the defendant is guilty guilty no matter what their defence is. Whereas strict liability is a little more lenient. If the defendant was to say that they had h ad a reflex action, therefore the refore the reason of his crime was one of automatism, then there is no actus a ctus reus and therefore cannot be held liable. It is often misquoted that strict liability means that ‘no mens rea’ is required. This, however, is not accurate. In Sandhu (1997), it was was held that mens rea not only need not, but must not, be proved. This usually relates to mens rea with respect respect to one or more elements of the offence. In Sandhu (1997), the defendant applied for, and was granted listed building consent. However, he was charged with various offences of causing works to be executed for the alteration of a listed building with out authorisation, contrary to section 9(1) of the Planning Act 1990. In this case, the prosecution showed evidence to prove that the appellant possessed the the mens rea. The defendant made a preliminary submission submission that the prosecution were proving mens rea where it wasn’t necessary. The judge rejected the submission, saying: ‘that although the prosecution was not req uired to prove the mens rea, the evidence was relevant as to how the actus reus had been caused…’ The defendant was consequently found guilty, but on appeal, his conviction was quashed. This was because of the statement statement the judge made in the rejection rejection of the submission. In the appeal, it was held that ‘an offence of strict liability was one which involved no proof of mens rea, it was complete when the specified elements of the
offence were established. To adduce evidence which went beyond proof of those elements was not an optional extra, it was to adduce inadmissible evidence and adduce inadmissible evidence, which was prejudicial to the interests of the accused was objectionable.’ Therefore, if a crime committed is one of strict liability, the mens rea must not be proved. Which Offences are ones of Strict Liability?
There is a problem in identifying offences of strict liability. This is mostly because Parliament is (or the parliamentary draftsmen are) unhelpful in that the use of a mens rea word (for example ‘knowingly’ or ‘permitting’) in one provision and its ab sence in another (or even in the same provision) appears to be haphazard. However, strict liability offences are typically the less serious, regulatory offences involving road safety, pollution, food hygiene, dangerous/unsafe buildings, and possession. Other strict liability offences include public nuisance, blasphemous libel, and criminal contempt. There can even be liability for just being found in a particular situation, without committing an act. In Prince (1875), the defendant was charged under s.55 of the Offences Against the Person Act 1861 (now in s.20 of the Sexual Offences Act 1956). Prince took an unmarried girl under the age of 16 out of the possession of her father against his will. The girl was in fact 13, but because she looked much older, Prince said that he had a reasonable belief that she was 18. Prince was convicted because the court held that this case was one of strict liability with respect to the ag e of the girl. This long established precedent, though not sp ecifically overruled, has now been seriously weakened by the case of B (a minor) v DPP (2000). In this case, a boy of 15 was charged with inciting a girl under 14 years of age, to perform an act of gross indecency with him. It was questioned whether the boy would have a defence if he genuinely believed that the girl was over 14. However, the relevant section in the Indecency with Children Act 1960 made no mention of this. The Divisional Court decided that this case was one of strict liability. On appeal in the House of Lords, a different approach was taken. Since there was no mention of mens rea in the Indecency with Children Act 1960, it was seen that for the case to be one of strict liability, Parliament had to have stated so in the Act. Therefore, it was decided that this case was not one of strict liability; because where the statute makes no mention of mens rea there is a presumption that it is required and this presumption is particularly strong if the offence is serious. Is Strict Liability Necessary in Criminal Law?
There are many arguments for and against strict liability, that it would be impossible just to answer this question ‘yes’ or ‘no’. There are some cases where I find it is a good idea to impose strict liability, but there are other cases where I feel the verdict has been unjust. If there were any excuses, defences or exceptions to certain types of offences, successful prosecutions would be so difficult as to render the relevant law unworkable. If the courts allowed the defence of ‘someone else did it’, prosecutions would be unsatisfactory. Strict liability offences are in place also because if every person who was caught speeding, for example, then the courts would be full to the brim, of cases that weren’t as important as murder cases etc. But sometimes, I feel that strict liability can lead to a wrong de cision, and people who are found guilty under strict liability could actually be inno cent and completely blameless. Road Safety
If we look at strict liability in the aspect of road safety, we can see that there can be just and unjust decisions. For example, if a person was speeding down the dual carriageway, and the police were to pull him/her over. It would be right to convict them as they are driving dangerously and knowingly putting others lives at risk. Now let’s imagine that this persons drink has been spiked without him knowing it, and he is not in a fit state to be driving, even though he thinks he’s only had half a pint. Should this man still be found guilty? Under strict liability, he would be, even though he hadn’t knowingly done anything wrong. Pollution
In the case of Alphacell Ltd v Woodward (1972), the defendants caused large quantities of polluted effluent to flow into a settling tank on the bank of the River Irwell. If the defendants didn’t install two pumps to keep the level of the water in the tanks low, the tank would overflow, allowing the effluent to enter the river. However, on 25th November 1969, a large quantity of brambles, leaves and other vegetable matter had wound round the impellers, causing the pumps to fail, causing an overflow. It was never discovered how the leaves etc got into the impellers. In this case, the defendants were found guilty and their appeal was dismissed. I think that it was right to convict the appellants for this crime. They were negligent and they allowed waste to enter the river. Because the mens rea would have been very difficult to prove, it shows that strict liability in these offences is a good idea. It also deters others from making the same mistake. Food hygiene
If we now look at food hygiene, there are cases where I feel the decision has been just, but there are cases where I feel that the decision has been unjust. In Callow v Tillstone (1900), the defendant, a butcher, asked a vet to examine a carcass to check that it was satisfactory for human consumption. After the vet told the butcher that the meat was fine to sell and to eat, the butcher offered it for sale. But the vet had been negligent and not done his job properly, the meat was not fit for human consumption. The butcher was convicted of exposing unsound meat for sale, even though he had exercised due care and taken reasonable steps to avoid committing the offence. I think that this decision is unjust because it was the vet who did not do their job properly. The butcher did everything right, and he was the one that got penalised. I think that in this case, the use of strict liability was wrong, the v et should have been convicted. In the case of Smedleys Ltd v Breed (1974), a housewife bought a tin of peas from the supermarket. When the woman opened the tin, she found a dead Hawk Moth caterpillar inside. A prosecution was brought against Smedleys under s.2 of the Food and Drugs Act 1955. The magistrates found that Smedleys were guilty, even though they had exercised all reasonable care. It was a case of strict liability and appeals to the Divisional Court and the House of Lords were unsuccessful. I agree with the verdict on this case because this will deter any other companies from making the same mistake. It will also mean better quality food for the consumers because the companies will make sure that all their food is fit for consumption. Possession
In R v Hallam (1957), the defendant was charged with knowingly possessing explosives. In his defence, Hallam said that he thought the substance was 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 shows that mens rea is necessary. In the case of Warner v Metropolitan Police Commissioner (1968), the defendant was stopped by the police when found with 2 boxes. One of the boxes contained scent, and the other contained 20,000 tablets containing amphetamine sulphate, a prohibited drug under the Drugs (Prevention of Misuse) Act 1964. The defendant thought that both boxes contained scent. Warner was found guilty, and was sentenced to two years’ imprisonment. I agree with the use of strict liability in this case because had the police not convicted him, then Warner could have sold those drugs on to others, causing injury and maybe death by using the drugs. A similar defence as in R v Hallam (1957) was shown in R v Marriot (1971), the defendant was convicted of possession of cannabis when he was found to be in possession of a knife. He claimed that he had no idea what the substance was, but he was
convicted all the same. He appealed, but it was held that it was seen as a case of strict liability and therefore, he did not have to know what the substance was, the fact that he was in possession of it was enough to convict him of it. In the case of R v McNamara (1988), the defendant was found with 20kg of cannabis resin. He claimed that he was delivering the package to a friend and he was not aware of what was inside. He was charged under s.5(3) of the Misuse of Drugs Act 1971, with having a controlled drug in his possession with intent to supply it to another. McNamara was convicted. I think that this decision was also correct, because, as in Warner, if he had not been convicted, then he would have supplied the drugs to another person. It doesn’t seem fair that two cases of roughly the same defences, had completely different outcomes. It seems strange that Hallam was considered to not be a case of strict liability, where Marriot was strict liability. This shows that there is confusion as to what circumstances are strict liability and which aren’t. Blasphemous libel
In the case of Lemon and Gay News Ltd (1979), one issue of the Gay News newspaper contained an illustrated poem, which described, in detail, acts of sodomy and fellatio on Christ’s body immediately after the crucifixion. They were convicted and appealed on the basis that a subjective intent to shock and arose resentment among Christians had to be proved. However, the House of Lords held that an intention to publish the words would be adequate. This was a case of strict liability. I agree with the use of strict liability in this case because it means that papers and magazines will always be careful about what the y write in the future, they will make sure that they do not offend any of the readers, as they do not wish to have the negative publicity. Safe buildings
In the case of Gammon v AG for Hong Kong (1984), the defendants were found liable when part of the building they were helping to construct collapsed, even though the company was unaware that the plans were not being followed. On their appeal, the defendants argued that they were not liable because they did not realise that such extensive changes had been made. However, the court held that it was a case of strict liability and the convictions were upheld. I think that this is a good example of strict liability because it protects the public from harm and it ensures that companies will cut fewer corners in the future, therefore making the public feel better protected. Liquor
In Cundy v Le Cocq (1884), the defendant was the keeper of certain licensed premises, and on the 14th January 1884, had unlawfully sold intoxicating liquor to a drunken person. The Licensing Act 1872 s.13, enacts: ‘If any licensed person permits drunkenness or any violent quarrelsome, or riotous cond uct to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty not exceeding for the first offence, 10l, and not exceeding for the second and any subsequent offence, 20l. Any conviction for any offence under this section shall be recorded on the license of the person convicted, unless the convicting magistrate or justices shall otherwise direct.’ In this case, the defendant was convicted. I agree with the decision made in this case because it is clear that the defendant did not follow the law, as laid down in the Licensing Act 1872. This therefore, shows that strict liability is a good thing because it will deter o thers from selling liquor to those already intoxicated, and the landlords will check be fore they sell the liquor. In the case of Sherras v De Rutzen (1895), the defendant was the licensee of a publichouse, and was convicted before a metropolitan police magistrate under s.16(2), of the Licensing Act 1872, for ‘having unlawfully supplied liquor to a police constable on duty without having the authority of a superior officer of such constable for so doing’. Although this was true, the constable that was on duty, was not wearing his armband, which was a signal to people that they were on duty. Therefore, the defendant thought that the constable was off duty and just wanted a drink. Because the constable did not have his armband on, the conviction was quashed. Although I think that the correct decision was made in the end, I don’t even think that the decision should have been brought before the court, as the constable was a friend of the defendant. I also think that the fact that this case was one of strict liability, the conviction should not have been quashed. I think that this is where confusion arises. People think that strict liability means that the defendant only needs to commit the actus reus but in this case, the actus reus h as been committed, and yet, the conviction still got quashed. No act
On 14th March 1933, the defendant in Larsonneur (1933) came to England with a French passport which was endorsed. She was not allowed any employment while in the UK. She was asked to leave the UK by 22nd March, but on this day, she went to the Republic of Ireland, and this did not count as a departure from the UK. On the 22nd April she was charged before a police magistrate. At the trial, on a charge under art 18(1)(b) of the Aliens Order 1920, the jury returned with the verdict of ‘guilty beyond her own control’. Her appeal was dismissed. I think that this case was unjust because she h ad no wish to return to this country and she was still found guilty of ‘being an alien to whom leave to land in the United Kingdom has been refused’.
In the case of Winzar v Chief Constable of Kent (1983), the defendant had been taken to hospital, but once there it was discovered that he was not ill, merely drunk. He was therefore requested to leave the premises. He failed to comply with this order and was later found in a corridor of the hospital. The police were called and he was removed from the premises against his will and taken to a police car on the highway. He was then charged with being found drunk on the highway. I think that this decision is totally unjust because it wasn’t of his own accord that he even ended up on the highway. The police made him go there, and then they convicted him for something that they did. I don’t think that strict liability should have been used in this case because he was not responsible for where he was. Wrongs
In R v Storkwain (1986), Storkwain, a pharmacist, supplied drugs for which a prescription was required, after being handed a forged prescription. There was no evidence of any negligence or wrong doing on the part of the pharmacist. However, on appeal against conviction, the House of Lords held that the statute created an offence of strict liability. Therefore, no proof of mens rea was required. Although the statute used says that no mens rea is required, the pharmacist wasn’t even aware that he had committed the actus reus. He believed that the prescription was real; therefore, he really was not guilty of an ything. He probably wasn’t even aware that it was a strict liability offence. Therefore, by using strict liability, innocent people can be convicted because the mens rea does not have to be proven. In the case of Harrow London Borough Council v Shah and Shah (1999), the Shah’s owned a shop. They informed all of their employees about the regulations concerning the selling of lottery tickets, and there were signs up around the shop as well. But, despite all this, one of the employees sold a lottery ticket to a boy under 16. The Queen’s Bench Divisional Court said that this case was one of strict liability. Therefore, Shah and Shah were convicted. I think that this is unfair because it wasn’t the Shah’s’ fault. They had taken all the precautions necessary to avoid anything like this happening, a lot like the case of Callow v Tillstone (1900). Reform
Diana Roe states, in Criminal Law, 2nd Edition, ‘there has been a strong move away from the imposition of such offences for more serious crimes. Parliament now needs to address the anomalies in statutes relating to sexual offences. Reform of this area is indirectly incorporated into the Draft Criminal Code. The Code, would lay down a presumption that all offences require either intention, recklessness or knowledge and, if offences are felt to be necessary which create liability for negligence or seek to impose strict liability, then Parliament must clearly state this in the relevant provision.’
Whereas I prefer the idea of the ‘halfway-house’. This is because many common law countries have developed a so-called ‘halfway house’ between strict liability and a full mens rea requirement. It takes various forms but, in general, the effect is that the prosecution has to prove the commission of the actus reus but then the responsibility shifts to the defendant to prove, on the balance of probabilities, that he did not have the mens rea and was not negligent. Sometimes it does not go so far but imposes a merely evidential burden on the defendant. Conclusion
I think that, on the whole, strict liability is a good idea because of the simplicity of not having to take every case to court. This therefore saves time and money for the courts. The imposition of strict liability is necessary to protect the public, and therefore, the answer to the essay title is yes. Strict liability protects the public from dangerous driving, pollution, food unfit for human consumption, possession of an y illegal substances, blasphemous libel, dangerous buildings, any drinking o ffences, and it is a very effective deterrent for others. However, I do still believe that strict liability has its downfalls. Such as, innocent people being convicted, it does not always succeed in raising standards for others, decisions can sometimes lead to outcomes that are the opposite of what was intended by the law, the courts face difficulties in identifying certain types of strict liability, and people can be found guilty of a strict liability offence, even if they have not got the actus reus. Overall, I feel that the imposition of strict liability in certain criminal offences is a necessary evil in the fight to protect the public from harm. But I do think that it would be sensible to introduce reform to the matter.
