Most crimes require both AR and MR. However,strict liability offences only require AR to be proved in order to establish liability. There is no need to prove MR for at least one element of the AR and liability is imposed but without fault on the part of D.
As a result of this, some feel the concept of SL is unfair as it appears to contradict the basis of criminal law (Woolmington 1935). In SL there may be no blameworthiness. Guilt simply follows completion of the prohibited AR.
SL offences are generally accepted to allow society to run smoothly and cover regulatory areas such as food hygiene and health and safety. SL is to protect the public and originates from the 18th and 19th centuries because of the changes brought about the the industrial revolution. However many judges are often not happy with SL as even if you go out of your way to ensure safety, you can get trapped by SL offences.
D (pharmacist) was charged under s.58 Medicines Act 1986 for supplying drugs on a forged prescription, despite not being found to be acting dishonestly, improperly or negligently. His conviction was upheld.
For nearly all SL offences, it must be proved that D did the relevant AR voluntarily. However, there are a few rare cases where D has been found guilty even though they committed the AR involuntarily. These are known as crimes of absolute liability and mean that as well as requiring no MR, the AR of the crime is a "state of affairs" crime. D is liable because they have 'been found' in a certain situation. The follwing condition must apply:
- The offence does not require any MR
- There is no need to prove that the defendant's AR was voluntary.
Larsonneur 1933 D was an 'alien' ordered to leave the UK. She went to Ireland, but was deported back to the UK and taken into police custody. She did not want to return to the UK (no MR) and her act in returning was involuntary. She was still convicted.
Winzar 1983 D was found to be drunk by doctors. Police were called as he would not leave hospital, he was escorted to the roadway but police formed the opinion that he was too drunk so they took him to the station and charged him with being found drunk in a highway, contrary to s.12 Licensing Act 1872. Conviction upheld.
Sometimes, the AR of an offence will be made up of more than one part. MR might be required for one part, but not the other. This can be illustrated by Prince 1875 and Hibbert 1869. In both, the charge was taking an unmarried girl under the age of 16 out of the possession of her father, against his will, contrary to s.55 of OAPA 1861:
- Taking girl from father: Intention needed for this part of the AR.
- Girl under 16: No intention needed for this part of the AR (SL).
Prince 1875 D knew the girl was in possession of her father but believed, on reasonable grounds, that she was 18 and ran off with her. He was convicted as he had the intention to remove the girl from the possession of her father. MR was required for this part of the AR and he had the necessary intention. However, the court held that knowledge of her age was not required. On this aspect, there was SL.
Hibbert 1869 D met a 14 yr old ******* the street and took her away and had sex.He then took her back to where they met and she returned to her father. He was acquitted as it was not proved that he knew the girl was in custody of her father. Even though the age aspect of the offence was one of SL, MR was required for the removal aspect and in this case, the necessary intention was not proved and therefore no conviction.
Some statuts provide a due diligence defence which means D will not be guilty if he can show he did all that was within his power to no commit the offence. However, there is no sensible pattern for when Parliament includes this defence. Without this defence, Ds can nevertheless be convicted even they were totally blameless.
Callow v Tillstone 1900 A butcher asked a bet to examine a carcass to see if it was fit for human consumption. The vet assured him that it was OK to eat so the butcher offered it for sale. It was actually unfit for consumption and the butcher was convicted of "exposing unsound meat for sale." Even though the butcher had taken reasonable care to ensure he did not commit the offence he was still guilty. Shah and Shah 1999 Ds owned a newsagent and told stall not to tell lottery tickets to under 16s. They frequently reminded their staff that they should ask for proof and should refer to Ds if in doubt. One of their staff sold a ticket to a 13yrold boy. Both were convicted of selling a lottery ticket to an under 16(max 2 yr sentence.)The offence did not require any MR and the AR of selling to someone underage was enough to make them guilty even if they had done their best to prevent this happening.
For new offences due diligence is more often provided. However it is argued that it should be a general defence (suggested in the Draft Criminal Code 1989.)
Defence of mistake is not available in SL. If it were, D would be acquitted when he made an honest mistake. Cundy v Le Coq 1884 D was charged with selling alcohol to an already drunken person(contrary to s.13 Licensing Act 1872). D and his employees had not noticed the person was drunk. However, the offence was complete on proof that the sale had taken place (AR) and that the person served was drunk. Conviction was upheld.
Following case s.16 Licensing Act 1872 was not SL and D was able to rely upon mistake.
Sherras v De Rutzen 1895 D was convicted for supplying "any liquor or refreshment" to a constable on duty. At the time local police on duty wore an armband but this police officer removed his before entering the pub. He was served by Ds daughter in the presence of D. D thought the constable was off duty but was convicted. Conviction quashed as offence was not SL and accordingly a genuine mistake provided D with a defence. The judge pointed out there was nothing D could do to prevent the crime.
It has been suggested that the difference between the cases is that being drunk is an observable fact whereas no amound of care of part of the D could save them from a dishonest policeman.
SL at common law
While nearly all SL offences are statutory, some have been developed by judges. Judges do generally oppose SL but 5 common law SL offences have been identified over the years; Public nuisance, Criminal libel, Outraging public decency Gibson 1991, Blasphemous libel, Criminal contempt of court (now a statutory offence.)
Whitehouse v Lemon and Gay News 1979
Dennis Lemon, editor of Gay News printed a poem about Jesus saying he had homosexual relations with his disciples. It was explicit, including illustrations. Whitehouse brought a private prosecution against the paper with both the editor and publisher being convicted of blasphemy. HL held it was not necessary to prove that Ds intended to blaspheme.
SL at statute law
Half of all statutory offenecs are SL. Most are regulatory. However, Parliament does not always make it clear whether or not MR is required as it cannot simply be assumed that an absence of MR words (eg. intentionally, knowingly) definitively equates to SL.
Parliament's silence as to SL is a major cause for criticism as if it were made clear when offences are to be SL, there would be no confusion. Such clarity is however exceptionally provided in the Contempt of Court Act 1981 in setting out a SL rule.
However, in the absence of such clear guidance, it is therefore for judges to decide when they interpreting and applying a stature. They will start with presuming that MR should apply (ie. that an offence is not SL) and then look at to see if they can rebut the presumption by considering 4 factors to either confirm or rebut this presumption as confirmed by Gammon (HK) 1984.
Presumption of MR in criminal law
Where an act is silent as to MR, courts will not automatically infer SL status. They will start by presuming that all criminal offence require MR. Judges are reluctant to classify an offence as SL as they are mindful by protection this presumption.
Sweet v Parsley 1970
D rented her farmhouse to students who smoked cannabis on the premises. She was unaware of this but when police raided the house and found drugs D was charged with being concerned in the management of premises used for the purposes of smoking cannabis. The lack of MR wording made it appear to be SL and she was convicted.
HL quashed her conviction as they presumed the offence required MR. This shows how precious they think having proof of fault is. They noted that any crime to which social stigma was attached should normally require MR. (Parliament later took note of this and added 'knowingly' into the Misuse of Drugs Act 1971).
After starting with this presumption, the courts will then consider a variety of points to decide whether the presumption should stand or be displaced and the offence one of SL.
Gammon criteria- Gammon 1984
Ds were involved in building works in Hong Kong. Part of a building they were constructing fell down due to a failure to follow the original plans exactly, Hong Kong building ordinances. These regulations prohibited deviating in any substantial way from such plans an offence punishable with a fine up to $250,000HK or 3 yrs imprisonment. It was necessary to decide whether it had to be proved that they knew that their deviation was substantial or whether the offence was SL meaning knowledge or otherwise was irrelevant. Privy council started with the presumption that MR is required but went on to give 4 other factors to be considered:
- Is the offence regulatory or a true crime?
- Did Pment intend to create an SL offence by using certain words in a statute?
- Does the offence relate to one of social concern and will the enforcement of this law encourage greater vigilance?
- What is the gravity of punishment attached to the crime?
Convictions were upheld.
Regulatory offence or true crime?
In Gammon 1984 the PC stated that the presumption of MR is particularly strong where the offence is truly criminal in nature ie. has serious social stigma attached resulting in being labelled as a criminal. Regulatory offences are not thought of as truly criminal, not such a moral issue at stake, and are therefore likely to be interpreted as SL.According to judges crimes such as theft, murder etc. are serious offences carrying social stigma and therefore require AR and MR, wheras speeding is not seen to be serious as it lacks a true social stigma and so requires proof of AR only.
Regulatory offences are sometimes referred to as quasi crimes. They are concerned more with maintaining/regulatory/prohibiting than they are with punishing criminals eg. selling food Callow v Tillstone 1900 and regulations preventing pollution:
A company was charged with causing polluted matter to enter a river when pumps which it had installed failed. There was no evidence that the company knew of the pollution or that it had been negligent. (The employee who was meant to inspect the tanks had failed to do his job properly.)
Looking at the wording of the Act:
There are some words that Pment use when drafting statutes that point to MR being required e.g. Theft Act 1968 "dishonestly appropriates property with the intention of permanently depriving..." Though there is no official list of words that point towards a crime being one of SL, there are some that have generally been interpreted by judges as pointing towards no MR being required, including cause.
Courts are prepared to accept SL status if Pment has expressly indicated as such, or if Pment has implied that it should be SL. If a particular section they are looking at is silent as to AR, courts will look at other sections in the Act as if they expressly contain MR words then it is likely that Pment left out MR words on purpose, intending it to be SL.
Some sections allow for due diligence but some do not, then this is another possible indicator from within the statute that the offence is meant to be SL. However, the absence of such indicators does not automatically mean SL. Judges will treat each case individually and decide whether the offence should require MR or not seen in Sweet v Parsley 1970
Issues of social concern
In Gammon 1984 the PC ruled that the only situation in which the presumption of MR can be safely displaced is where the statute is concerned with an issue of social concern. Therefore having regard to matters of social concern allows SL to be justified in a wide range of changing situations, providing it involves a "potential danger to public health, safety or morals." Including transmitting an unlicensed broadcast (pirate radio) seen in: Blake 1997 - D was a DJ convicted of using a station for wireless telegraphy without a license. His defence was that he believed he was making a demonstration tape and did not know he was transmitting. Court deemed the offence to be SL and his conviction was upheld. By imposing SL for crimes that relate to issues of social concern, it is felt that this will promote greater vigilance and high standards of care. However if the imposition of SL will not make the law more effective, there is little reason to make the offence SL.
Smedley v Breed 1974 Breed purchased a tin of peas and found a curled up is a caterpillar inside that had escaped the pea detectors. The odds of this happening were 1 tin in 3.5 mill. Guilty under Food and Drugs Act 1955.
Howells 1977 D was convicted of failing to obtain a firearm certificate, even though he believed the gun was an antique and did not require one.
Issues of social concern
Lim Chin Aik 1963
D was charged with remaining in Singapore despite a prohibition order against him prohibiting his entry into the country. D was not aware of this order. When deciding whether this was a SL offence, the court held that it was important to consider whether imposing SL would help enforce the regulations and said that it could only do this if there were some precautions the potential offender could take to prevent committing this offence. Here, the precaution would have been to find out whether there was a prohibition order against him.
Lord Evershed stated that D would only be expected to take sensible and reasonable precautions- he would not be expected to constantly check whether there was an order against him. Therefore, if D is unaware that he has been made the subject of an order prohibiting him from entering a country, the imposition of strict liability should he trangress the order would not in any way promote its observance.
Gravity of punishment
The more serious the criminal offence(true crime) and punishment that can be attached to it, the less likely it is to be considered one of SL
B v DPP 2000
B(15) was charged with the commission of gross indecency with or towards a child under 14. If guilty would have resulted in a maximum two year prison sentence and being placed on the sex offenders register. Therefore, the courts ruled that as this was a serious offence the presumption of MR could not be rebutted which continues to show courts reluctance towards SL. Despite this, some offences carrying imprisonment have been deemed SL: Storkwain 1986 (max 2 yr) Gammon 1984 (max 3 yr).
Just because the penalty may not appear grave does not mean it cannot have devastating consequences. Callow v Tillstone 1900- D was only fined but damage to reputation.
Gravity of punishment
R v K 2001
D was a 26 yr old who had taken part in consensual sexual activity with a 14yr old, honestly believing her to be 16 or over. HL concluded that the presumption in favour of MR could only be excluded by express words or by necessary implication.
This approach was followed in: Kumar 2004
D, aged 34 had picked up V at gay club which had a policy of only admitting 18+. V looked about 17 and willingly went to Ds flat where consensua activity took place. V was only 14. CA following B 2000, held that s.12 Sexual Offences Act 1956 was not one of SL. Ds honest belief as to the age of V should be allowed as a defence.
Doubt has been case over these cases by the recent judgment of the HL in R v G 2008
15yr old had consensual sex with a girl he thought was 15. She was only 12 but she told him she was 15. D was charged under s.5 Sexual Offences Act 2003 for the **** of a child under 13 and was convicted as the offence was SL and may be committed irrespective of consent, reasonable belief in consent or as to age. HL upheld conviction.
SL and HR
Where a person is at risk of imprisonment following a conviction for a SL offence, HR issues are engaged. (Art 5 & 6)
As Article 5 focuses on the procedure being 'prescribed by law' and thus provided the procedure is lawful and carried out by a competent court then there is no breach of the Convention. With Article 6 the focus is on a fair trial, although Article 6 maintains the need for the prosecution to prove guilt. However, guilt can be proved by proving that D did the prohibited act (AR).
The decision of the ECtHR in Hansen v Denmark 1995 suggests that SL offences may breach Article 6 because once the prohibited act is proven, the D is presumed to be liable.
Barnfather 2003"Art6 does not entitle the courts to question the justification for SL offences." This has all been interpreted by the English courts as allowing SL offences:
R v G 2008 15yr old had consensual sex with a girl he thought was 15. She was 12 but she told him she was 15. D was convicted of **** of a child under 13 HL upheld CA decision that s.5 Sexual Offences Act 2003 was SL did not breach HR (Art 6.)
Agreements for SL
- Policy issues. As many SL offences are aimed at preventing danger to the public, the risks of such danger are thought to outweigh Ds individual rights. It is more important to protect public, even if harsh to the individual.
- Social utility. Usefulness to the public is the main justification as SL helps protect society by regulating activities that could cause harm. SL offences promote higher standards and greater care.
- Easier to enforce as there is no need to prove MR.
- Saves court time as people are more likely to plead guilty.
- Parliament can provide a 'due diligence' defence where thought to be appropriate.
- Lack of blameworthiness can be taken into account when sentencing.
Arguments against SL
- Imposes guilt on people who are not blameworthy. Even those who have taken all possible precautions and care have been found guilty. There are such things as accidents.
- Inconsistent use of due diligence. If the inclusion of due diligence was carried out in a more consistent way, the intention of Pment would be clearer and it would allow the clearly blameless to escape criminal liability.
- There is little evidence that SL actually promotes or improves standards. Opponents of SL argue that there is little or no evidence that SL leads to business taking a higher standard of care. It could even be counterproductive. If people realise they could be prosecuted even though they have taken every possible care, they may not be tempted to take any precautions at all. Additionally the fine/penalty is often much less than the initial costs would be to incorporate contingency measures. There is little incentive to protect against a problem when it is cheaper just to pay a fine if/when something goes wrong.
- Some SL offences carry a social stigma.
- Breach of HR?
- Limiting the role of a jury. Takes away crucial questions of fact away from the jury.
Proposals for reforms
- Parliament to make it clear. In the absence of MR words, there is no definite way of knowing whether this was done deliberately to make the offence SL, or whether Parliament did not realise that there would be effect of hwo the statute/section was worded. The surest way to be certain is for Pment to always expressly state whether or not it is SL.
- Law Commission: base the offences on negligence. (The Mental Element in Crime 1978) suggested that all strict liability offences should be treated as crimes of negligence. Therefore, any defendant who had taken all possible care and had not been negligent would not be guilty avoiding convictions for the morally blameless. This move of making strict liability offences ones of negligence would be for Parliament to include due diligence defences when drafting new offences and this can be seen in the Food Act 1984.
- Some suggest that no offence carrying imprisonment should be strict liability
- Take regulatory offences out of the criminal justice system and deal with them through the civil justice system instead which has started to happen in Part 3 of the Regulatory, Enforcement and Sanctions Act 2008 which provides several civil sanctions that can be imposed.