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Absolute Liability
This is very rare, offences of absolute liability require no mens rea and the defendant's actions (the actus reus) need not be voluntary.
Winzar (1983)
The defendant was taken to hospital on a stretcher, but when he was examined by the doctors they found that he was not ill but was merely drunk. The defendant was told to leave the hospital but was later found slumped on a seat in the corridor. The police were called and they took the defendant outside onto the main road. They decided he was drunk so took him to the police station the patrol car. They then charged him with being found drunk on a public highway contrary to s12 of the Licensing Act 1872. The Divisional Court upheld his conviction.
Larsonneur (1933)
The defendant was from a foreign country and was termed an 'alien'. She had been ordered to leave the country and decided to go to the Republic of Ireland (which is not part of the UK). The Irish police deported her back to the UK, leaving her in a police cell in Holyhead. She had no wish to return to the UK, i.e. she had no mens rea. The actus reus, returning to the UK, was not voluntary. Despite this she was found guilty under the Aliens Order 1920 of being 'an alien to whom leave to land in the UK has been refused ... found in the UK'.
Strict Liability - Definition and Key Points
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No mens rea is required in respect of one or more elements of the actus reus
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The actus reus must be proved
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The defence of mistake is not available
The Concept of Strict Liability
The concept of strict liability (and how unfair it can sometimes be) is illustrated by the following case;
Pharmaceutical Society of Great Britain v Storkwain (1986)
The defendant was charged under s58(2) of the Medicines Act 1968 which states that no one shall supply certain drugs without a prescription. The defendant had supplied drugs on prescription, but the prescriptions were later found to be forged. It was held that the defendant had not acted dishonestly, improperly or even negligently as the forgery was sufficient to deceive the pharmacist. Despite this the House of Lords decided that the defendant's conviction should stand. The pharmacist had supplied the drugs without a genuine prescription and this was enough to make them guilty of the offence.
Commentary on Storkwain
The mere fact that it was proved that Storkwain had supplied the drugs (the actus reus of the offence) and the actus reus was voluntary was enough for him to be convicted of this strict liability offence. If Storkwain had been forced at gun-point to supply the drugs then the actus reus of the offence would not have been voluntary and he could not have been convicted of the offence.
General Points About Strict Liability Offences
For all criminal offences there is a presumption that mens rea is required. If the judge decides that the offence in question does not require mens rea for at least part of the actus reus then the offence will be deemed to be one of strict liability.
Not requiring mens rea for part of the actus reus of an offence is illustrated by the following two cases where the defendants were both charged with taking an unmarried girl under the age of 16 out of the possession of her father, against his will, contrary to the Offences Against the Persons Act 1861, s55.
Prince (1875)
Prince knew that the girl he took was in the possession of her father but believed, on reasonable grounds, that she was 18. He was convicted of the offence as he had the intention to remove the girl from the possession of her father. Mens rea was required for this part of the actus reus and this was established as he had the necessary intention to remove her. However, the court held that knowledge of her age was not required as for this part of the actus reus there was strict liability.
Hibbert (1869)
The defendant met a girl aged 14 in the street. He took her to another place where they had sexual intercourse. He was acquitted of the offence as it was not proved that he knew the girl was in the possession of her father. Even though the age aspect of the offence was one of strict liability, mens rea was required for the removal aspect, and in this case the necessary intention (mens rea) was not proved.
Strict liability even where there is 'No Fault'
A defendant can be convicted if their voluntary act unintentionally causes a prohibited consequence. This is the case even where the defendant is completely blameless.
Callow v Tillstone (1900)
A butcher asked a vet to examine a carcass to see if it was fit to be eaten. The vet confirmed that it was ok to eat and so the butcher offered it for sale in his shop. In fact the carcass was unfit for human consumption and the butcher was convicted of 'exposing unsound meat for sale'. This was a strict liability offence and the butcher was guilty even though he had taken reasonable care not to commit the offence by having the carcass inspected by a vet. The butcher was found guilty even though he was not at fault in any way.
No defence of 'due diligence'
For some offence the statute which created the offence provides a defence of 'due diligence'. In other words, the defendant will not be liable if they can show that they did all that was within their power not to commit the offence. If this defence was available in the above case then the butcher would not have been found guilty. The problem is that Parliament does not always include a defence of due diligence when creating strict liability offences. Another example of where the defendants were guilty even though they had taken all reasonable steps to prevent the offence is seen in the following case.
Harrow LBC v Shah and Shah (1999)
The defendants owned a newsagents where they sold lottery tickets. They had warned their staff not to sell lottery tickets to anyone under the age of 16, they also told their staff that if they were in any doubt as to a customer's age then they should ask for ID. A member of staff sold a lottery ticket to a 13 year old boy without asking for proof of age believing the boy to be over 16. The defendant's were charged with selling a lottery ticket to a person under the age of 16 contrary to s 13(1)(c) of the National Lottery Act 1993. The Divisional Court held that the offence was one of strict liability and did not require mens rea. The act of selling the ticket to someone under the age of 16 was enough to make them guilty of the offence even though they had done everything possible to prevent this from happening in their shop.
No defence of mistake
The defence of mistake is not available for strict liability offences. Two cases concerned with the Licensing Act 1872 illustrate this point.
Cundy v Le Cocq (1884)
The defendant was charged with selling intoxicating liquor to a drunken person. The court believed that the defendant and his staff had not realised that the customer was drunk. However the court held that the offence had been committed when it was proved that a sale has taken place and that the person served was drunk.
Sherras v De Rutzen (1895)
The defendant was convicted of supplying alcohol to a constable on duty. The police in that area always wore an armband on their uniform when on duty. On this occasion an on-duty police officer removed their armband before entering the defendant's pub. The officer was served by the defendant's daughter in the presence of the defendant. The defendant had his convicted quashed by the Divisional Court which held that the offence was not one of strict liability and as such a genuine mistake provided the defendant with a defence.
Commentary on Cundy & Sherras
The reason for the different decisions in Cundy v Le Cocq and Sherras v De Rutzen is that in Sherras there was nothing the landlord could do to prevent the offence being committed. Even if he had asked the officer if he was on duty the officer could have lied. In Cundy, the fact that someone is drunk is an observable fact so the landlord should have been on alert and should have been able to prevent the offence being committed.
Strict Liability & Statute Law
The vast majority of strict liability offences are created by statute. Most are regulatory in nature, i.e. involving matters such as regulating the sale of food and alcohol, the prevention of pollution and the safe use of vehicles.
In order to decide whether an offence is one of strict liability the courts always start by assuming that mens rea is required. The court will accept that an offence is one of strict liability if Parliament has expressly or by implication indicated that it is in the relevant statute which created the offence.
Where a statute does not include any words which indicate that mens rea is necessary for the offence to be committed the court will assume that mens rea is required for all criminal offences.
Sweet v Parsley (1969)
The defendant let out a farmhouse to a group of students. The police found cannabis at the farmhouse and charged the defendant with 'being concerned in the management of premises used for the purpose of smoking cannabis resin.' The defendant didn't know that cannabis was being smoked there. She was found not guilty of the offence because the court presumed that the offence required mens rea.
The courts start off by assuming a requirement of mens rea, however, they also look at a variety of points to decide whether the presumption should stand or can be replaced and the offence made one of strict liability.
The Gammon Tests
In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984) the Privy Council decided there were five factors which should be considered when deciding if an offence was one of strict liability.
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there is a presumption of mens rea with statutory criminal offences
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this presumption can only be displaced if this is expressly or by necessary implication the effect of the words of the statute
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the presumption is particularly strong where the offence is 'truly criminal' in nature
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the presumption can only be displaced if the statute is concerned with an issue of social concern such as public safety
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strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act
Looking at each of these in more detail;
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There is a presumption of mens rea with statutory criminal offences - Sweet v Parsley (1969) - see above
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The wording of the act - where words indicating the need for mens rea are used then the offence is not one of strict liability. If the particular section is silent on mens rea then the court will look at other sections of the Act. 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.
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Truly-Criminal Offence - Offences which are regulatory in nature are not thought of as being 'truly criminal' and are therefore more likely to be interpreted as being strict liability offences. Regulatory offences are also sometimes referred to as 'quasi-crimes'. They include offences such as breaches in regulations in a variety of areas such as selling food, selling of alcohol, building regulations, sales of lottery tickets and regulations against pollution.
Alphacell (1972)
The company was charged with causing pollution to enter a river contrary to s2(1)(a) of the Rivers (Prevention of Pollution) Act 1951, when pumps which it had installed failed and polluted effluent overflowed into a nearby river. There was no evidence that the company knew of the pollution or that it had been negligent. The House of Lords held that the offence was one of strict liability and the company was found guilty. The reason for the decision was that it was of the 'utmost public importance' that rivers should not be polluted.
Where a offence carries a penalty of imprisonment it is more likely to be considered truly criminal and so less likely to be interpreted as an offence of strict liability.
B v DPP (2000)
The defendant was a 15 year old boy. He asked a 13 year old girl to perform oral sex on him. He believed she was over the age of 14. He was charged with inciting a child under the age of 14 to commit an act of gross indecency under s1(1) of the Indecency with Children Act 1960. The House of Lords quashed his conviction stating that mens rea was required for this offence. It was pointed out that this offence carried a maximum sentence of two years imprisonment and the greater the punishment and the graver the stigma that was attached to a conviction the greater the presumption of mens rea should be.
NB Some criminal offences which carry a punishment of imprisonment have still been held to be ones of strict liability - see for example the earlier case of Storkwain.
The Privy Council held that the only situation in which the presumption of mens rea can be displaced is where the statute is concerned with an issue of social concern. This allows strict liability to be justified in a wide range of offences where it is thought there is a potential danger to the public health, safety or morals.
Blake (1997)
The defendant was a DJ who was convicted of using a station for wireless telegraphy without a licence, contrary to s1(1) of the Wireless Telegraphy Act 1949. His defence was that he believed he was making a demo tape and didn't know he was actually broadcasting. He was convicted on the basis that the offence was one of strict liability as it was a matter of social concern that individuals didn't interfere with radio signals which may be used by the emergency services.
If the imposition of strict liability will not make the law more effective then there is no reason to make the offence one of strict liability.
Lim Chin Aik v The Queen (1963)
The defendant had been convicted under the immigration laws of Singapore by remaining there (after entry) when he had been prohibited of entering. The aim of the law was to prevent illegal immigration. The defendant had no knowledge of the prohibition order and there was no evidence that the authorities had attempted to bring the prohibition order to his notice. Therefore the Privy Council ordered that the offence was not one of strict liability because it did nothing to promote enforcement of the law.
Arguments in Favour of Strict Liability
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It protects society by promoting greater care over maters of public safety and encouraging higher standards in such matters as food hygiene
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Its easier to enforce as there is no need to prove mens rea
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It saves court time as people are more likely to prove guilty when they realise there is no need for a guilty mind to be established by the prosecution
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Parliament can provide an appropriate defence where this is deemed to be necessary
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Lack of blame on the part of the defendant can be taken into consideration by the judge when sentencing
Arguments Against Strict Liability
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Liability should not be imposed on people who are not blameworthy
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Those that have taken all possible steps to prevent the offence being committed should not be prosecuted
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There is no evidence that it promotes higher standards
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The lack of a requirement for mens rea goes against the principles of human rights
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