Strict liability
How do courts interpret whether an offence is one of strict liability?
- Courts interpret offence as one of SL if Parliament has expressly or by implication indicated this in the relevant statute. - Words such as 'knowingly', 'intentionally', 'maliciously', or 'permitting' indicate the need for Mens Rea. - BUT parliament is often silent about the need for Mens Rea. - Court then has to decide whether it is a SL offence, or whether they should read into the act a requirement for mens rea. - The courts will therefore assume both the actus reus and mens rea are needed. The mens rea needs to be displaced/rebutted by parliament with in the act. - Courts will always start with this presumption, but if they decide that the offence doesn't require mens rea for at least one part of the actus reus, then the offence is one of SL.
Summary of Strict Liability?
- D must be proved to have done the Actus Reus - Actus Reus must be voluntary - No need to prove Mens Rea for at least part of the Actus Reus - No due diligence defence - No defence of mistake - Problem lies in deciding which offences are ones of strict liability.
Proposals for Reform of Strict liability?
- Draft criminal code has suggested that every offence should require a mens rea of recklessness unless otherwise stipulated by parliament within an act. - Each strict liability offence should have the defence of due diligence available to avoid injustices. - No offence that could attract imprisonment should be one for strict liability. - All regulatory offences such as selling lottery tickets to underage customers could be removed from the criminal system and made into administration offences. How are these offences in the same category as some sexual offences. - Parliament should always expressly state whether it is an offence of strict liability or not.
What are the arguments against strict liability offences?
- It imposes guilt on people that are not to blame - There is no evidence that shows that strict liability offences improve health and safety standards - It can even be counterproductive as if people feel that they could be prosecuted even when they have taken every care to avoid the offence they may not bother to improve their standards - It is contrary to human rights to make an offence one of strict liability when the offence could carry a prison sentence
Which 3 common law offences have been held to be ones of strict liability?
- Public nuisance - Criminal libel - Criminal contempt of court
What are the justifications for strict liability offences?
- These offences protect society - The offences are much easier to prove as no mens rea is required - It saves court time as more people are likely to plead guilty. - Parliament can provide a due diligence defence - The lack of blame/fault can be taken into consideration when sentencing
B v DPP 2000?
B was 15yr old, repeatedly asked girl on bus to perform oral sex on him. Girl refused. Charged with inciting child under 14 to commit acts of gross indecency contrary to Section 1(1) of Indecency with Children Act 1960. He thought the 13yr old was in fact over 14 so he hadn't formed mens rea. Court said his liability was strict and found him guilty. HOL reaffirmed common law presumption that mens rea would be required to be proved unless Parliament has indicated otherwise. It is less likely to be interpreted as an offence of strict liability if the offence carries a penalty of imprisonment.
Courts will read mens rea into a statute unless?
1. There is a clear wording in the statute indicating that the offence is to be one of strict liability 2. There is a compellingly clear inference that the offence is to be one of strict liability
Callow v Tillstone 1900?
A butcher asked vet to examine carcass to see if fit for human consumption. Vet assured him it was fine and butcher sold it. It was in fact unfit and butcher convicted of offence of exposing unfit meat for sale. Because it was a strict liability offence, butcher was guilty even though he had taken reasonable care not to commit the offence.
Bromley LC v C 2006?
A mother was found guilty of failing to secure school attendance for her child.
What is a Quasi-criminal offence?
A non-criminal offence that carries a penalty similar to that of a criminal offence, but that is subject to less complex court procedures than are criminal offences. For example traffic and workplace safety offences.
What is the definition of strict liability?
A person is guilty of a strict liability offence if by a voluntary act they cause the prohibited result or state of affairs. There is no need to prove that D had a particular state of mind.
What is absolute liability?
Absolute liability means that no mens rea is required for the offence. Involve 'status offences' where D is liable because he's been found in a certain situation. The actus reus does not need to be voluntary either.
Tesco Ltd v Nattrass 1972?
Accused of giving indication goods were on sale at lower price that they were in fact on sale for. Defence was that it was store managers fault for not checking shelves properly and that was why a product had been advertised at the wrong price. HOL allowed the company to rely on the defence.
Alphacell v Woodward 1972?
Alphacell were convicted of causing a river to be polluted despite having pumps and employing someone to ensure the river was not polluted.
What are the Gammon Tests?
Although the court start with the presumption that mens rea is required, they look at various aspects of the case to decide if the presumption should stand or whether the offence should become one of strict liability.
Pharmaceutical Society of GB v Storkwain Ltd 1986?
D charged under S58(2) of the Medicines Act 1968, no one shall supply certain drugs without doctor's prescription. D supplied drugs on forged prescriptions. No finding that D had acted dishonestly, improperly or even negligently. Forgery was sufficient to deceive pharmacists. HOL convicted D. Pharmacists had supplied the drugs without genuine prescription and this was enough to make them guilty.
R v Hibbert 1869?
D charged with taking unmarried girl under 16 out of possession of father against his will, contrary to S55 of OAPA 1861. D met 14yr old on street. Acquitted of the offence as it wasn't proved he knew the girl was in custody of her father. Even though the age aspect was one of strict liability, mens rea required for removal aspect, in this case, necessary intention wasn't proved.
R v Prince 1875?
D charged with taking unmarried girl under 16 out of possession of father against will, contrary to S.55 OAPA 1861. D knew the girl was in possession of her father but thought she was 18. D convicted, had intention to remove girl from possession of her father. Mens rea required for this part of actus reus. Knowledge of age not required. On this aspect there was strict liability.
R v Woodrow 1845?
D convicted of having altered tobacco in his possession even though he didn't know it was altered. Ruled that he was guilty even if it needed a 'chemical analysis' to discover that the tobacco was altered.
R v Larsonneur 1993?
D from foreign country ordered to leave. Went to Ireland. Irish police deported her to UK, went into custody. Didn't voluntarily return to UK. Found guilty under Aliens Order 1920 of being 'an alien to whom leave to land in the UK has been refused and was found in the UK.'
Harrow v Shah and Shah 1999?
D owned newsagents. Told staff not to sell lottery tickets to under 16s. One member of staff sold ticket to 13 year old boy without asking for ID. D's charged with selling lottery ticket to a person under 16, contrary to S.13 of the National Lottery Act 1993. D's guilty because offence was of strict liability. Mens rea not necessary. Actus Reus satisfied.
Sweet v Parsley 1969?
D rented farmhouse and let out to students. Police found cannabis at farmhouse, D charged with 'being concerned in management of premises used for purpose of smoking cannabis resin.' D didn't know cannabis was being smoked there. Held she wasn't guilty as the court presumed that the offence required mens rea. "Parliament didn't intend to make criminals of persons who were in no way blameworthy in what they did" If the offence says nothing about mens rea, presume it is needed.
Winzar v CC of Kent 1983?
D taken to hospital on a stretcher. Drunk not ill. D told to leave hospital, later slumped in corridor. Police called and took the D to road outside. Arrested him with being drunk found in a highway, contrary to S.12 of the Licensing Act 1872. D's conviction was upheld even though he hadn't acted voluntarily, he had been taken to highway by police.
G 2006?
D was 15yr old who had consensual sex with 12yr old, he genuinely believed she was 15. Found guilty of rape and conviction upheld.
Cundy v Le Cocq 1884?
D was charged with selling intoxicating liquor to a drunken person. D and employees made honest mistake by not realising that the person was drunk. D convicted. Offence was complete on proof that a sale had taken place and the person served was drunk.
Sherras v De Rutzen 1895?
D was charged with serving an on duty officer with liquor. Officer had removed his armband (which they wear when on duty). D not guilty. Offence not one of strict liability, according to a genuine mistake provided the defendant with a defence.
Empress Car v National River Authority 1998?
Empress were guilty of allowing oil to escape into a river despite the fact that it happened due to vandalism.
What is a 'due diligence' defence?
For some offences the statute provides a defence of due diligence - meaning the D will not be liable if he can show he did all within his power not to commit the offence. But doesn't seem to be any sensible pattern for when Parliament decides to include a due diligence defence. If other sections within an act allow for a defence of due diligence but another section does not, then it may be an indicator that the offence is meant to be one of strict liability.
R v K 2001?
K aged 26 charged with indecently assaulting 14yr old girl, contrary to S14 of Sexual Offences Act 1956. Claimed she had told him she was 16 and had consented. HOL followed B v DPP 2000, stating presumption applies unless there is express language to the contrary or it is ruled out by necessary implication which is compellingly clear.
What are offences of strict liability?
Offences of strict liability are where mens rea is not required in respect of at least one aspect of the actus reus.
Gammon Ltd v AG of Hong Kong 1984?
Privy Council started with the presumption that Mens Rea is required before a person can be held guilty of a criminal offence, but went on to give 4 other factors to be considered: 1. The presumption in favour of Mens Rea applies to statutory offences. 2. The presumption can only be displaced if this is clearly or by necessary implication the effect of the words of the statute. 3. The presumption is particularly strong where the offence is truly criminal in character. 4. The presumption can only be displaced if the statute is concerned with an issue of social concern such as public safety (covering health/safety matters in relation to food) 5. Strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act. APPLIED IN BLAKE 1997.
What is the main requirement for strict liability offences?
Requirement of Actus Reus, and that the actus reus was voluntary (only for strict liability not absolute liability).
Shephard and Shephard 1980?
The word 'wilfully' indicates the need for a Mens Rea.
What do strict liability offences aim to protect?
Strict liability offences aim to protect the public from danger to their 'health, safety or morals'.
Storkwain 1986?
Where the particular offence has no words of intention, but other sections in the Act do, then it is likely that this offence is a strict liability offence.
James v Smee 1955?
Where words indicating Mens Rea are used, the offence is not one of strict liability.