General Elements of Liability: Strict Liability

Strict Liability

• To be found guilty of a crime, the defendant must be shown to have committed to Actus Reus with the appropriate Mens Rea
• Strict liability is the exception to this rule
• For crimes of strict liability, it is not necessary to prove Mens Rea. The defendant will be found guilty if they have committed the Actus Reus
• Pharmaceutical Society of Great Britain v Storkwain Ltd (1986):
• a pharmacist was convicted of supplying drugs without a valid prescription under s58(2) Medicines Act 1968 which states that no one shall supply drugs without a doctor's prescription. 
• The signature on the prescriptions had been forged although the pharmacist had no knowledge of this. 
• Despite this, even on appeal to the House of Lords, the pharmacist was still found guilty
• The defendant must be proved to have committed the Actus Reus and in most cases this must be done voluntarily
• However, Larsonneur (1933):
• Defendant was a foreigner found in England
• She was deported to Ireland
• The Irish police deported her back to England
• She was immediately arrested when she landed back in England

Absolute Liability

• Winzar v Chief Constable of Kent (1983):
• Winzar taken to hospital - turns out he's drunk so gets asked to leave
• He's later found asleep in a corridor
• Police called and Winzar carried out and put on the pavement outside
• He was promptly arrested for being found drunk on the highway under the Licensing Act 1872
• He was convicted
• This is an example of absolute liability. No Mens Rea is required for such offences and the Actus Reus does not need to be voluntary

Back to Strict Liability

• The starting point for these offences is that there is a presumption that Mens Rea is always required
• This is for the courts to decide
• R v Prince (1875)
• Appellant charged with taking an unmarried girl under the age of 16 out of the possession of her father
• He knew that the girl was in the custody of her father, but he believed her to be 18
• His conviction was upheld
• The offence was one of strict liability as to age and therefore his not knowing her true age was no defence
• R v Hibbert (1869)
• Appellant was charged with taking an unmarried girl under the age of 16 out of the possession of her father
• This case differs from R v Prince, as Hibbert didn't know that the girl was in her father's custody, so the conviction could not be sustained

Due Diligence

• Callow v Tillstone (1900):
• Callow was a butcher who asked a vet to examine a carcass to see if it was fit for human consumption
• The vet said it was, so Callow offered it for sale
• PLOT TWIST - it wasn't
• Callow was convicted as he had sold meat that wasn't fit for human consumption
• It was in this case that the courts decided that a defendant can be convicted of an offence where he voluntarily commits the Actus Reus, which subsequently results in a prohibited consequence
• However, in some statutes there is a defence of 'due diligence' available for some offences - the defendant can argue that they took all reasonable care to prevent the consequences
• Poor Callow
• Harrow London Borough Council v Shah & Shah (1999)
• Owners of a shop were aware of the rules regarding the sale of lottery tickets
• They put up notices in their shop and told staff not to sell any tickets to anyone under the age of 16
• Nevertheless, a member of staff sold a ticket to an underage boy, even though he did seem older
• The owners of the shop were found guilty
• Liability was strict and no Mens Rea was needed for the age of the boy

The Defence of Mistake

• The defence of mistake is not available for strict liability offences
• Cundy v Le Cocq (1884)
•  A drunk person was served when they shouldn't have been
• Sherras v De Rutzen (1895)
• A constable who was on duty was served when he shouldn't have been
• Both involved honest mistakes and the serving of alcohol. In Cundy it was held to be an observable fact that the customer was drunk. In Sherras it was impossible to know whether the constable was on duty or not

What's the issue?

• The main problem with this area of law is in deciding which offences should be labelled as strict liability
• Remember that the presumption is that Mens Rea is always required and this is the starting point
• Most strict liability crimes are found in statutes but there are four that are found in common law

Strict Liability in Common Law

• There are only 4 common law offences which the Courts have decided are strict liability:
• Public nuisance
• Criminal libel
• Blasphemous libel
• Criminal contempt of court
• Lemon & Whitehouse v Gay News (1979)
• Appellants convicted of blasphemous libel
• They challenged the conviction, as blasphemy was not intended
• The conviction held - Mens Rea was not necessary

Regulatory Offences

• A large amount of offences created by statutes are designated as strict liability offences by the courts
• Many of these are classed as regulatory offences because they 'regulate' various types of behaviour, e.g speeding and traffic offences regulate the flow of traffic on the roads; food and hygiene regulations regulate the sale of food

REMEMBER

• The courts start with the presumption that Mens Rea is required
• B v DPP (2000)
• 14 year old boy charged with an offence of inciting a child under the age of 14 to commit an act of gross indecency (he asked a girl on the bus for a blowjob and she turned out to be 13) - he was unaware of her age
• It was ruled that the offence was one of strict liability
• Conviction quashed on appeal
• Sweet v Parsley (1969)
• School teacher let her house out to students
• They smoked cannabis in the house without her knowledge
• She was charged under the Dangerous Drugs Act 1965
• The statute did not state any requirement of Mens Rea of the offence
• The House of Lords looked at the common law before the statute was made
• Common law required knowledge of the activities in order to impose liability
• No conviction, as it was decided to be a true crime, and so Mens Rea was required
• The courts then look at the wording that Parliament has used in a particular statute to decide whether it should be interpreted as a strict liability offence

Problem?

• The problem with this area of law is that it is largely based on the judge's interpretation of the wording. Parliament rarely gives any strong indication that an offence should be one of strict liability and mostly the statutes are silent on the issue

The Gammon Case

• Gammon (Hong Kong) Ltd v Attorney General of Hong Kong (1984)
• The defendants had built a building in Hong Kong, part of which had collapsed. 
• The collapse was found to be a direct result of the builders having deviated from the original plans, which was forbidden in Hong Kong law.
• Strict liability
• Privy council decision
• They were convicted
• The penalty was a fine up to $250,000 or 3 years imprisonment
• On appeal their conviction was upheld

What did it do?

• As a result of the Gammon case, the Privy Council restated the fact that the courts should always start with the presumption that Mens Rea was always required and then move on to four tests:
1. To see if the wording of the statute indicates strict liability
2. To decide if the offence is of a regulatory nature or a 'true crime'
3. To see whether the issue involved is an area of social/public concern
4. To see whether enforcing strict liability will promote greater vigilance

1) The Wording of the Statute

• If the statute uses the words 'knowingly' or 'intentionally', then the offence requires Mens Rea
• Alphacell v Woodward (1972)
• Appellant factory owner convicted of causing polluted matter to enter a river
• Appellant unaware of pollution and no negligence alleged
• As a matter of public policy, the offence was one of strict liability
• This involved the word 'cause'. The factory 'caused' pollution to enter the river - no Mens Rea was required

2) Regulatory Offences v True Crime

• What is the difference between the two?
• Generally true crimes are those to which a stigma can be attached, e.g murder. Regulatory offences, such as speeding, have very little, if any, social stigma attached to them
• Sweet v Parsley (1969)

3) An Issue of Social/Public Concern

• This involves the courts looking at the statute involved to decide whether it involves an issue of social concern
• This can result in strict liability being imposed in a wide variety of situations where there may be dangers to public health, safety or morals
• Blake (1997)
• Appellant accidentally transmitted an unlicensed radio station broadcast ' he thought he was making demonstration tapes
• Strict liability offence ' the presumption that Mens Rea was required could be rebutted where the offence concerned an issue of public safety

4) Promoting Greater Vigilance

• The courts need to ask whether imposing strict liability will make the law more effective in promoting its objectives
• Lim Chin Aik v The Queen (1963)
• Defendant convicted of contravening an order prohibiting his entry into Singapore
• He had no idea the order existed
• The imposition of strict liability could only really be justified where it would succeed in placing the onus to comply with the law on the defendant
• Strict liability should only apply if it will help enforce the law by encouraging greater vigilance to prevent the commission of the prohibited act
• Smedleys v Breed (1974)
• Smedley´s made tinned peas
• 4 tins contained caterpillars
• Found guilty of strict liability offence because of the statute of health and safety