Criminal Law - Strict Liability

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  • Created by: Holly
  • Created on: 09-06-14 20:57

Absolute Liability

  • No mens rea is required.
  • 'status' offences, or 'state of affairs'.
  • There is no need to prove the actus reus was voluntary.
  • Larsonneur
  • Winzar v Chief Constable of Police
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Strict Liability

  • If the courts decide that the offence does not require mens rea for at least one part of the actus reus of the offence, then it is one of strict liability. This is illustrated by the cases of Prince and Hibbert.
  • The conduct must be voluntary, however, if the voluntary act caused a prohibited consequence they can still be liable, even if the defendant was totally blameless. This was seen in the case of Callow v Tilstone
  • There does not seem to be a pattern for when Parliment decides to include a 'due diligence' offence and when it does not. Other cases where there was no due diligence offence was the case of Shah and Shah.
  • The defence of mistake is not available. This was demonstrated in the case of Cundy v le Cocq although it was allowed in Sherras v De Rutzen.
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Strict Liability in Common Law

  • Strict Liability is ususally created under statute, common law strict liability offences are very rare.
  • Three such offences are
  • Public nuisance
  • Criminal Libel
  • Outraging public decency. This was seen in Gibson and Sylverire.
  • Blasphemous Libel no longer exists as an offence, but was seen in the case of Lemon Whitehouse v Gay News
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Strict Liability in Statute

  • Almost half of all statutory offences are one of strict liability and are regulatory in nature.
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Interpretation by the Courts

  • Courts will use statutory interpretation to determine whether an offence is one of strict liability.

Presumption of mens rea

  • The courts start by assuming that mens rea is required, but are prepared to interpret the offence as one of strict liability
  • Where an act of parliment includes words indicating mens rea (Knowingly/intentionally/maliciously), the offence requires mens rea.
  • In many instances, the court will be silent as to whether they intended the offence to be one of strict liability or not.

Principle in Sweet v Parsley

  • Under Sweet v Parsley, the judge will start by presuming that all criminal offences require mens rea. 
  • However, they still look at a variety of points to decide whether the presumption should stand or be displaced.
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Interpretation by the Courts 2

Gammon Tests

  • From the case of Gammon, they began with the presumption of mens rea.
  • The presumption can only be displaced if this is clearly/by necessary implication of the words of the statute and if the statute is around an issue of social concern.
  • The presumption is particularly strong where the offence is 'truly criminal' in character.
  • Strict liability should only apply if it will help enforce the law by encouraging greater vigilence to prevent the commission of the prohibited act.

Wording of the Act

  • Courts may look at other sections in the act. If other sections in the act refer to mens rea they may infer that that section also requires mens rea. This occured in the case of Storkwain.
  • Where other sections allow for a defence of due diligence this may also infer that mens rea is required.
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Interpretation by the Courts 3

Quasi-Criminal Offences

  • Offences that are regulatory in nature are not thought of as being 'truly criminal' and so they are more likely to be interpretted as one of strict liability. They are often referred to as 'quasi crimes'
  • This can include selling food, selling alcohol, building regulations, sale of lottery tickets and regulations preventing pollution.
  • One example of this is Alphacell.

Penalty of imprisionment

  • Where an offence carries a penalty of imprisionment, it is more likely to be considered 'truly criminal', and so less likely to be interpretted as one of strict liability. This happened in the case of B v DPP, although this is not always the case

Issues of Social Concern

  • The only time that the presumption of mens rea can be displaced is where the statute is concerned with social issues. Regulations covering health and saftey are issues of social concern, but others are regarded as a matter of public saftey. Blake.
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Interpretation by the Courts 4

Promoting Enforcement of the Law

  • If the imposition of strict liability will not make the law more effective then there is no reason to.
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Justification for strict liability

  • Many statutory offences are aimed at preventing danger, the risks of which outweigh the defendants individual rights.
  • It is more important to protect the public than to ensure the d's rights, even when the d has done everything they can..
  • Strict Liability offences help protect society by regulation.
  • Making an offence one of strict liability promotes greater care.
  • No evidence that strict liability leads to higher standards of care, and may eve be counter productive.
  • It is easier to prosecute
  • Saves court time and money
  • Parliment can provide a 'due diligence' defence where it is appropriate - although it seems haphazard
  • Blameworthiness can be taken into account in sentancing
  • More straightforward
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Arguments against strict liability

  • Imposes liability on those who are not blameworthy, even if they have taken all possible care.
  • Those who are unaware of the risks may be guilty. This was seen in Environment agency v Brook.
  • Doesn't improve standards
  • Contrary to human rights where an offence is punishable by imprisionment, this was raised in R v G.
  • Strict Liability can be imposed even where there is serious social stigma
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proposals for reform

  • Parliment should always expressly state where an offence is one of strict liability, then there would be no need for the complicated rules of statutory interpretation. It could be done by reforming the Draft Criminal Code
  • Every offence could have a defence of due diligence, as in Australia  or Canada.
  • No offence carrying the penalty of imprisionment could be an offence of strict liability.
  • Remove regulatory offences from the criminal system, they could be treated as administration issues, although this could not be applied to sexual offences.
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