Tuesday, 13 September 2011

Strict Liability

Strict Liability


Absolute liability

Absolute liability occurs when there is no actus reus or mens rea. These cases are rare but have been known to occur.

Winzar v Chief Constable of Kent (1983)
The defendant was removed from a hospital by police and was then arrested and found guilty of being drunk on the highway, even though the police officers had put him there.

Larsonneur (1933)
The defendant was convicted of being found in the UK, contrary to the Aliens Order of 1920, even thought she had been brought forcibly into the UK by the immigration authorities.


What is strict liability?

Strict liability is when the prosecution is relieved of the need to prove mens rea. In such circumstances, it will be sufficient to prove the actus reus only. An example of strict liability appears in the two examples below:

Woodrow (1846)

The defendant was accused of selling adulterated milk. At the time, the defendant had made a mistake and believed that he was selling pure milk. The court held that the mistake was irrelevant.

The problem with strict liability is that it is extremely harsh and therefore they must not be overused.

Can Strict Liability ever be justified?

There are many arguments that have been put forward to justify strict liability?

1)    Public Protection

There are certain circumstances when the needs of the general public need to be protected. These are:

a)    Pollution

The case of Alphacell V Woodward (1972)

The Rivers (Prevention of Pollution Act) 1951 made it an offence for anyone to pollute the river. They claimed that they should not be penalised as they were unaware of the pollution. The court held that knowledge was irrelevant. The fact that the actus reus was present was sufficient and the defendants were penalised.

Strict liability encourages Corporations to take greater care against pollution. Strict liability imposes a penalty regardless of fault and therefore increases the incentive to guard against undesirable activities. This point was emphasised by Lord Salmon who stated that strict liability:

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.’

This point was emphasised by Smith and Pearson who stated that:

‘Strict liability does induce organisations to aim at higher and higher standards.’

However, Brett argues that there is no evidence that a higher standard of care results from an imposition of strict liability. Brett argues that it may in fact as a disincentive. If Corporations can be prosecuted regardless of precautions, they may be tempted to take none whatsoever. He also points out that the fines often become a tax as it is cheaper to pay the fines rather than alter bad working practices. Additionally, enforcement agencies frequently lack the resources to monitor the huge numbers of potential offenders. For example there are only 900 inspectors who are responsible for reporting on over 600,000 different workplaces. Even when the offenders are caught, it appears that the usual response of the agency is a warning letter. Only a minority are prosecuted.

Strict liability is also unfair because it punishes the innocent.

b)    Promotion of  Health and Safety
Pharmaceutical Society of Great Britain V Storkwain (1986)
The Defendant was a pharmacist who unknowingly prescribed drugs on the basis of a forged prescription. He was convicted for the offence under the Medicines Act 1968

c)    The protection of Public morality

Strict liability has been imposed in the past on offences which have offended and threatened public morality. This is clearly illustrated by the case of:

R V Lemon (1979)
Gay news published a poem and some drawings depicted various acts of sodomy and fellatio on the crucified body of Christ. The defendant was charged with blasphemous liable. He argued that he did not intend for the material to be blasphemous. This was held to irrelevant and strict liability was imposed.

d)    The protection of social dangers such as drugs and unlawful weapons.

As drugs are socially damaging, the courts have adopted a harsh approach and have in the past been only too willing to impose strict liability.

Yeandel V Fisher (1966)

In this case the defendant was found guilty of ‘being concerned with the management of premises used for the purpose of smoking cannabis.’ The defendant had no way of knowing that this activity was taking place. Strict liability was nevertheless imposed.

Similarly, the courts adopted a harsh approach in:

Warner V MPC (1969)

The defendant sold perfume as a side line. He collected two boxes that had been left for him and one of the boxes contained controlled drugs. The court declared his lack of knowledge to be irrelevant and he was convicted on the basis of strict liability.

In Howells (1974)

The defendant’s conviction for not having a firearm certificate was upheld despite the fact that he thought the gun was an antique and did not need to have one.

In Bradish (1990)

The defendant argued that he was unaware that a canister in his possession contained CS gas and his conviction was upheld.

However, imposition of strict liability on offences that may result in a loss of liberty cannot be justified. Such an action leads to the punishment of the innocent. This injustice was recognised by the courts in:

Sweet V Parsley (1970)

The defendant sublet her house and only visited it occasionally to collect letters and rent. After being provided with information, the police searched the house and found LSD and Cannabis, Miss Sweet was initially found guilty of managing premises which were used for the consumption of drugs contrary to the Dangerous Drugs Act 1965. On appeal to the House of Lords, her conviction was quashed. The harshness of the QBD prompted Lord Reid to ask.

‘How has it come about that the divisional court has felt bound to reach such an obviously unjust result.

It has been argued by defence lawyers in both G (2008) and Deyemi (2007) that strict liability is a breach of Article 6 Human Rights Act 1998 presumed innocent until proven guilty. The case of G concerned a 15 year old boy who had consensual sex with a 12 year old girl. He was charged with rape of a girl under 13. He argued that he believed her to be 15. This belief was irrelevant as the case was one of strict liability as declared by the Sexual Offences Act 2003. Her consent was deemed irrelevant as was his belief as to her age.

Deyemi was in possession of a stun gun a prohibited weapon. He believed it to be a torch. This was irrelevant as s5 of the The Firearms Act 1968 was held to be one of strict liability. The House of Lords in both cases held that there was no breach of article 6.


2)   Expediency

Because of the sheer volume of criminal offences, it is argued that it is too time consuming to require the prosecution to prove mens rea for every single criminal offence. The judicial system would collapse. Therefore it is necessary to make certain offences strict liability in nature. Traffic offences are examples of this.

3)   Strict Liability is imposed on quasi crimes.

A quasi crime is a trivial offence which carries little or no stigma. These are otherwise known as regulatory offences. The Road Traffic Act 1984 is an example of this. E.G. illegal parking and driving whilst disqualified. It is easy to justify strict liability in these circumstances as they regulate such areas without being harmful to the individual.

However, Clarkson and Keating (1994) point out that the recognition of quasi crimes trivialises the offences further and many people do not view serious inconveniences such as illegal parking as criminal.

Additionally, the courts have proven to be erratic in their approach and serious offences have been declared to be strict liability. (see earlier).

4)    They can be justified as the courts can take into account the lack of blame when sentencing.


How do the Courts determine whether the offence is one of Strict Liability?

1)   They look to the wording of the statute.

The courts look to see whether the statute contains words such as ‘knowingly’, ‘intentionally’ or ‘recklessly’. These words make it clear that parliament intends mens rea to be proven. According to James and Smee (1955) other words such as ‘using, causing or permitting.’ Indicate that a state of mind is required.

2)   Where the courts do not mention the above words and do not indicate whether the offence is one of strict liability, the courts must presume the requirement of mens rea. This was stated in:

Sweet V Parsley (1970)

Within this case, Lord Reid stated that where there is no indication within the statute as to whether the offence is one of strict liability, the courts must presume that the mens rea is intended.

‘where ever a section is silent as to mens rea there is a presumption that in order to give effect to the will of parliament, we must read in words appropriate to the mens rea.’

3)   When the court may rebut the presumption is laid down by

Gammon Ltd V A.G of Hong Kong (1985)

a)   There is a presumption that the mens rea is required before a person can be guilty of an offence.
b)   The presumption is particularly strong where the offence is truly criminal in character.
c)   The only situation where the presumption can be displaced, is where the statute is concerned with a social concern or public safety issue.
d)   Even where a statute is concerned with such an issue, the presumption of mens rea still stands unless it can 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 a prohibited act.
e)   The courts are more likely to impose strict liability in relation to regulatory offences.


Due Diligence Defence

A Due Diligence defence may be available in certain situations. It may be pleaded where the defendant has taken care and no negligence is apparent. The burden of proof lies on the defendant. Sometimes, the defendant will be required to prove that the offence is due to the fault of a third party.

Tesco LTD V Nattrass (1972)

Radaint washing powder had been advertised on being on sale at a cheaper price than it actually was. This was due to the negligence of a store manager who had not checked the shelves properly. Due Diligence was allowed as a defence.

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