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Principles - strict liability

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No mens rea required

The distinguishing feature of crimes of strict liability (SL) is the absence of mens rea, the prosecution is not required to prove the defendant intended the consequences of his actions or even foresaw them.

For some offences they may be required to show that the defendant was "negligent".

 

Sherras v De Rutzen [1895] Wright J
 

The case of Sherras is usually cited for its reference to the presumption that mens rea is an essential ingredient in every other offence.

 

Sweet v Parsley (1970) HL

Sweet v Parsley is usually cited at the defining case on strict liability where the need for mens rea in most criminal cases was spelt out and where it was acceptable for the presumption for mens rea to be dispensed with.

"… there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever 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 require mens rea ... "

Evidence of mens rea inadmissible

Evidence which goes beyond establishing the specified elements of the offence for example intention, knowledge and so on is not relevant and therefore inadmissible especially where such evidence serves no purpose other than to incline the court to think badly of that defendant.

 

This type of offence typically found in legislation relating to

  • Currency offences

  • Road traffic offences

  • Health and safety

  • Pollution control

  • Possession (e.g. drugs and weapons)

SL offences are common

SL offences represent ½ of all cases brought before the courts.

Sale of tobacco to under aged persons not now SL

Selling tobacco to persons under 16 was a strict liability offence from 1933 until 1991 when the Children and Young Persons (Protection from Tobacco) Act 1991 added...

"It shall be a defence for a person charged with an offence under subsection (1) above to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence".

Many brought 'privately' i.e. by Trading Standards or for licensing offences

The most frequently encountered are motoring offences.

The public, and courts generally consider offences of Strict Liability not as 'criminal' as other crimes, and this is generally reflected in the punishment.

However, the highest fine ever imposed by an English Court for an offence of strict liability, a Health and Safety offence occurred when Mr Justice Mackay imposed a fine of £10 million on the rail maintenance company Balfour Beatty that was implicated in the Hatfield train crash.

Similarly, in Blake the penalty available to the court was imprisonment and not the usual fine found in strict liability offences.
 

Common law offences are rarely state of affairs or strict liability crimes

Possible exceptions:

There is a Common Law assumption that a criminal act has to be willed (there is usually a voluntary act) and accompanied by mens rea.

 

It was thought for a long time that Public Nuisance was a crime of strict liability, however, in R v Rimmington and R v Goldstein [2005] HL it was decided that mens rea was required for the common law offence of creating a public nuisance.

 

Contempt of court is not an offence of strict liability, see R v Yousaf (2006) CA.

 

R v Rimmington and R v Goldstein [2005] HL

In Goldstein the defendant put salt (as a joke to his friend) into an envelope, salt leaked and the sorting office was evacuated as it was feared it might be anthrax poison. Mr Goldstein did not foresee the leakage (nor desire it; there would have been no joke) and so had no mens rea and was not guilty.

 

No mens rea needed for negligence

Negligence can be proved if the conduct (actus reus) of the defendant falls below the standards to be expected of a reasonable person.

 

So gross negligence is actus reus and evidence of mens rea is not required.

This was confirmed in Attorney-General’s Reference (No. 2 of 1999) [2000] CA. Great Western Trains were prosecuted for gross negligence following the 1997 Southall rail crash.

 

The court was asked,

"Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant’s state of mind?"

The answer was "Yes", and they decided that gross negligence was not mens rea

 

Therefore, a defendant can be convicted of manslaughter by gross negligence without evidence of their state of mind.

 

If no mens rea is required for gross negligence manslaughter, it is an offence of strict liability.

 

To impose strict liability for a homicide offence, with a maximum sentence of life imprisonment, appears to breach the principles of a just criminal system.

 

So why are they there?

Defendants might raise mistake as a defence - "I didn't know..".

If there were any excuse, defence or exceptions to certain types of offences successful prosecutions would be so difficult as to render the relevant law unworkable.

An example is the offence of having a bald tyre on a motor vehicle. Any requirement for ‘knowingly’, ‘recklessly’ (etc) would give every motorist a ‘get out’, he/she could simply say, and "if I had known it was bald I would never have driven the car".

Some strict liability offences presuppose a business is carried on and so continuous attention to standards is important.

An additional explanation is that if the courts allowed the defence of "someone else did it", prosecutions would be unsatisfactory. This is a Policy issue.

Even recklessness, subjective or objective would not produce a satisfactory result in offences involving ‘selling’.
 

The five presumptions

The relevant propositions of strict liability were identified by Lord Scarman in Gammon (Hong Kong) LTD v A-G of Hong Kong [1985] PC

  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 in particularly strong where the offences is “truly criminal” 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, and public safety is such as 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.

Cases

Winzar (1983) = drunkenness
Larsonneur (1933) = immigration
Woodrow = selling adulterated tobacco (tax and revenue case)
Prince(1875) = thought 13-yr-old girl was 18
Parker v Alder (1899) = food and drink, adulterated milk
James and Son v Smee [1954] QBD permitted vehicle use with defective brakes, (not guilty – not knowingly)
Sweet v Parsley (1970) = allowing premises to be used for smoking cannabis (not guilty).
Gammon (Hong Kong) LTD v A-G of Hong Kong [1985] PC = building regulations
Pharmaceutical Society v Storkwain (1986) = sold drugs on forged prescription
Callow v Tilstone (1900) = selling unfit meat (examined by negligent vet)
Cundy v Le Cocq (1884) = selling alcohol to drunken customer (guilty cf Sherras)
Sherras v De Rutzen (1895) = selling alcohol to PC (not guilty cf. Cundy)
Kirkland v Robinson [1987] QBD = possessed a bird (Goshawk)
R v Howells (1977) = possessed gun without a licence believing it to be an antique (which did not need a licence)
R v Blake (1997) = pirate radio station, no licence
Warner v MPC (1968) = possessed drugs thinking it was perfume.
Alphacell v Woodward (1972) HL = allowing pollution to enter river.
FJH Wrothwell v Yorkshire Water Co.(1984)  = director poured 12 gallons of herbicide into drains, unknown to him routed to rivers
B (a minor) v DPP [2000] = boy 15 incited girl under 14 to indecency
R v Brock and Wyner (2001) CA = permitted premises for drug use
R v K [2001] HL = indecent assault didn't know age of girl
Barnfather v Islington [2003] QBD = failed to ensure school attendance
Salabiaku v France (1988) ECHR = smuggling presumes guilt, not contrary to Art 6 (fair trial)

 

B (a minor) v DPP [2000] HL

[Strict Liability – clear implication of Parliament needed]
D incited a child under 14 to commit an act of gross indecency.

Held: D entitled to be acquitted if he held an honest belief that the child in question was 14 or over, and the prosecution had the burden of proving the absence of honest belief on the defendant's part.

Considerable doubt cast on the case of Prince.
In order to rebut the presumption that an offence required mens rea, "compellingly clear implication" that Parliament intended the offence to be one of strict liability is required.
The mens rea of the offence of gross indecency in section 1 of the Indecency with Children Act 1960 was found to be the absence of a genuine belief by the accused that the victim was fourteen years of age or above.

Not Guilty

Mistake need not be reasonable

When an offence is of strict liability, a defendant may claim he "didn't know" some fact that made his actions an offence, this is irrelevant, even if that mistake is reasonable.

Following the House of Lords judgement of B (a minor) v DPP [2000] the law will never require that the mistake have been reasonable, provided it was honestly held and Tolson is now bad law.
 

B (a minor) v DPP [2000]

This case is now a leading case on the issue of mistake which is central to strict liability offences; effectively it overruled Tolson and Prince, which are now considered bad law.

 

B v DPP will have exceptions

In R v G [2006] CA the defendant had sex with a girl aged 12 in his room he believed her to be 15. This is an offence of absolute liability.

Sex with a child under 13 irrespective of consent amounts to rape under the Sexual Offences Act 2003. It was held that the offence of sexual intercourse with a person under 13, whether the victim consented or not and whether or not the defendant reasonably believed that the child was 13 or over, was a crime of strict liability.

The Court of Appeal had no difficultly arguing that Parliament could enact and enforce a crime of strict liability, and that the Human Rights Act was not engaged.

 

Absolute liability

State of Affairs crimes and absolute liability

'State of affairs" offences are also offences of 'strict liability'. Not all lawyers are happy with these distinctions.

Absolute liability appears to exist where the defendant cannot escape liability because he did not know he was committing an offence - a mistake - as distinct from having no mens rea.

An example of absolute liability is R v G [2006] CA where D had sexual intercourse with a girl of 12 whom he thought was 15 and who consented, neither of these facts enabled him to escape liability, and such a crime was not in breach of the Human Rights Act.

Judges frequently use the terms "strict liability" and "absolute liability" as if they were the same thing. For example the Court of Appeal in R v Mautdi v The Crown [2003] CA refers to an earlier case which it says is an authority on "absolute liability" however, nowhere in the earlier case does the court use the phrase "'absolute liability", only "strict liability".

Lord Goddard thought that absolute liability meant that

"come what may ... an offence has been committed.”

Lord Parker said that

"..before one comes to a consideration of a necessity for mens rea or, as it is sometimes said, a consideration of whether the regulation imposed an absolute liability..."

A defendant can be guilty of a crime he does not intend to commit. This is known as a "state of affairs" crime.

There is no need to prove any actus reus by the defendant or any mens rea.

Section 4 Road Traffic Act 1988 provides that a person who, when in charge of a motor vehicle on a road or other public place, is unfit to drive through drink or drugs, is guilty of an offence.

It is not the taking charge of the vehicle or becoming unfit which constitutes the offence, just the state of being unfit whilst in charge of the motor vehicle.

A crime may not require any willed action at all, if the specified 'state of affairs' exist, the defendant is guilty.
 

The difference between strict liability and absolute liability

The issue of causation

The distinction between strict and absolute liability can be seen by examining the issue of causation.

 

For strict liability offences no evidence of intent or any other mens rea is required.  It is however normal for the prosecution to be required to prove causation. For example, in speeding it is necessary to prove the defendant was "driving", but not that he intended to drive faster than permitted, or even that he knew he was doing so.

 

Just like strict liability, absolute liability offences do not require evidence of intent or mens rea.  As for causation, the prosecution only has to prove that the proscribed event occurred or situation existed, then the defendant will be liable because of his status.

 

So, in the Empress Car Case the company were liable for the pollution of the river even though the diesel tap was turned on by an unknown stranger. 
 

Some causation must exist

It is important to recognise that there must be some causal connection between the crime and the defendant or logically an unconnected passer-by could be convicted of an offence for which he has no connection whatsoever. There must always be some causal connection between the defendant and the act.

 

It may be better to view the distinction between strict and absolute liability as a continuum and not an arbitrary division.

 

Other jurisdictions

In some jurisdictions, for example Australia strict liability and absolute liability are distinguished only if the defence of mistake of fact is available, if it is relevant.  Mistake of fact can be available in the UK as a defence to strict liability offences, but is not the distinguishing feature.

 

Lord Hoffman's distinction in Empress Car

 

Whole case here

The distinction between absolute and strict liability is recognised by Lord Hoffman in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] HL:

‘While liability [for water pollution] is strict and therefore includes liability for certain deliberate acts of third parties … it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendant’s land, irrespective of how this happened. It must still be possible to say that the defendant caused the pollution”. 

In the Empress Car case the defendant caused the pollution of the river even though a tap on a diesel tank was opened by person or persons unknown and the entire contents of the tank overflowed a spillage tank down the drain into the river.  There was no adequate security for example a lock.

 

So, even if the act is caused by a third party there can be liability. The third party in Empress Car was the major cause, but the company's insecure storage of diesel was also a cause.  Whilst vandalism does not break the chain of causation a terrorist attack may.

 

There is no requirement to do a positive act, provided the defendant had done something earlier that could be said to have caused the pollution.

 

Liability (fault based, strict or absolute) is a matter or law and as Lord Hoffman pointed out this is a policy matter that varies from case to case.

 

 

Proof of causation

Fault

Absolute liability

Strict liability

Fault based liability

Inconsistent authority

Previous authority has not been easy to reconcile; Wychavon District Council v National Rivers Authority [1993] QBD where a blocked drain cause an overflow into the river (not guilty), Price v Cromack [1975] QBD, where pollution by effluent was caused by gravity (not guilty), and the well known case of Alphacell Ltd v Woodward [1972] HL, pollution entered a river because the filters blocked and pumps failed (guilty) all similar on the facts but producing different outcomes.

 

The courts are consistent in requiring cause to be given its ordinary meaning.

 

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.

 

Lord Parker in R v Winson [1968] QBD

“When an absolute offence has been created by Parliament, then the person on whom a duty is thrown is responsible, whether he has delegated or whether he has acted through a servant; he is absolutely liable regardless of any intent or knowledge or mens rea..."

"...The principle of delegation comes into play, and only comes into play, in cases where, although the statute uses words which import knowledge or intent such as in this case "knowingly" or in some other cases "permitting" or "suffering" and the like,..."

"... cases to which knowledge is inherent, nevertheless it has been held that a man cannot get out of the responsibilities which have been put on him by delegating those responsibilities to another.”

Strict liability is not intended where D could not observe the law, even for a grave social evil

R v Lim Chin Aik [1963] PC is an example of an attempt to impose absolute liability, where D did not know he was the subject of a banning order preventing him entering Singapore.

 

The Privy Council said that even when mens rea words were absent there need not be a presumption of absolute liability.


This case was applied in Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] PC.

 

Defences available for strict liability offences

Defences for strict liability are those that are relevant to actus reus.  Defences that are probably relevant to actus reus include automatism and duress. Foreseeability has relevance too. Defences which are relevant to mens rea have no place in cases of strict or absolute liability, since it does not have to be proved. 

 

The defence of honest mistake as to fact (in the sense of a belief in circumstances which, if true, would make the defendant's conduct innocent), will usually succeed in an allegation of strict liability.

 

So, in R v Kumar [2004] a doctor had consensual sex with a boy aged 14 believing him to be over 16, they had met in an over 18’s club, he was acquitted because his belief, although mistaken was honestly held. But, in R v G [2006] CA the defendant had sex with a girl aged 12 in his room he believed her to be 15, mistake is irrelevant because she was under 13, because of the Sexual Offences Act 2003.

 

 

Due diligence in strict liability

The defence of "due diligence" in strict liability consumer protection law is available, provided the accused took "all reasonable steps" and exercised "all due diligence" to avoid an offence being committed.  It is also available for Health and Safety offences.

 

Due diligence and mistake in absolute liability

 

Defences for absolute liability are less likely to succeed, because there is less need to prove causation or mens rea.

 

The defence of  honest mistake is not available, nor is the defence of due diligence.

 

Reverse burdens of proof

Reverse burdens do not conflict with Woolmington or Art 6 HRA

There are 219 statutory offences that require the defendant to disprove or prove something, in order to prove his innocence; this is called a reverse burden provision.

These include strict (or absolute) liability offences. This appears to be contrary to the rule in criminal law that the prosecution has the burden of proving the defendant’s guilt (Woolmington and Article 6 of the HRA), but are not.
 

That Article 6 does not engage was confirmed in Attorney General Reference No. 1 [2004] CA
 

Strict liability compatible with Human Rights Act

It was held in the R v Kearns [2002] CA that the strict liability offence by a bankrupt of failing to account for the loss of a substantial part of property when required to do so by the Official Receiver did not contravene Article 6.

 

The Legal Burden

This is a higher standard than the evidential burden. The defendant may, for example, wish to raise a defence that he did not know some particular fact, or that he was not going to drive whilst drunk, or that he was insane. D has the legal burden to prove the issue he raises.

Failure to convince the jury or the magistrates of a defence will mean the defendant will be found guilty. It is usually a “do or die” situation, because D will have probably admitted all the other ingredients of the offence, and be relying solely on the defence he raises, this is why it is described as a high standard

The standard the defendant has to reach is on the balance of probabilities.
 

The Evidential Burden

An evidential burden is a lower standard, and refers to the burden on a defendant to raise an issue, say provocation or self defence, having simply raised the question the burden then shifts back to the crown to disprove it.

The standard the defendant has to reach is on the balance of probabilities.
 

R (Sheldrake) [2004] HL

Held: Reinstated the justices' decision and answered the certified question by saying that the burden of proof provision in section 5(2) of the Road Traffic Act 1988 imposes a legal burden on an accused who is charged with an offence contrary to section 5(1)(b) of that Act. (Drink driving)

 

AG Ref (No 4 of 2002) [2004] HL

Held: I would answer the first part of the Attorney General's second question by ruling that section 11(2) of the Terrorism Act should be read and given effect as imposing on the defendant an evidential burden only.

 

Contrasting cases

R v Hussain [1972]

Hussain and Steele both concerned the possession of firearms without a certificate.  The court decided this is an absolute offence. Hussain was guilty because he knew he had the article even though he did not know it was a firearm. 

 

Steele was guilty because he knew he had a holdall but he did not know that it contained a firearm.

 

R v Steele [1993]

R v Buswell [1972]

Buswell concerned the possession of drugs. The drugs had been medically prescribed by his doctor. He thought his mother had destroyed them when washing his jeans. They were discovered in his room by the police.

 

Finding him not guilty, the Court of Appeal held that they continued to be in his lawful possession, even though he thought they had been destroyed.

 

R v Deyemi (2007) CA

The defendants were found in possession of an electrical stun-gun, which they believed to be a torch. It was held that the prosecution merely had to prove possession of the object in question, and the fact that the object was a firearm or other weapon prohibited by the Act.

 

It did not have to prove that the defendant had known or could have known that it was a prohibited weapon.

 

Checklist

 

General assumption that mens rea is required in all offences.

Displaced only if ‘clearly or by necessary implication the effect of statute’.

Then if statute only effective with Strict Liability.

Too strong for really criminal offences

Only when statute concerned with issue of social concern.
 

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