The gammon tests

The law doesn't always make it clear whether a mens rea is needed or not. The court then needs to decide and may use the gammon guidelines.

This test was laid down by the Privy Council in the case of Gammon (Hong Kong) Ltd v A-G of Hong Kong (1985). In the case a builder had deviated from a building plan which was an offence if the deviation was substantial. The builder claimed that the alteration was only minor and therefore not an offence unless it could be shown that the offence was one of strict liability. The builder was found guilty on the basis that it was a strict liability offence meaning that his views were immaterial. However the Privy Council took the opportunity to set out a test for future reference.

The test is used when considering whether a criminal offence is properly considered to be a strict liability offence. There are five factors to be taken into account when applying the test. Lord Scarman's views prevailed in what has now become known as 'the Gammon tests'. The factors are as follows:

  • The starting point is that mens rea is required before the person can be guilty of a criminal offence. The starting point takes effect as a presumption that mens rea is required;

  • Some offences are considered to be 'truly criminal' in nature and this makes the presumption stronger than if the offence were more of a regulatory nature;

  • The presumption is applied to statutory offences in particular. The presumption in favour of mens rea can be rebutted if it is found that Parliament has expressly or by necessary implication created a strict liability offence;

  • Even if it appears that the presumption is not appropriate, judges will only allow the presumption to be disregarded if the subject of the statute in question is concerned with a social issue including matters of public safety;

  • Finally, even if a statute is concerned with a social issue, the requirement of mens rea will still be needed unless the courts can be satisfied that the creation of a strict liability offence is required in order to emphasise the need for extra vigilance to protect the public from such offences in the future.

 

If it is clear that the offence is a strict liability offence then it is, if it is not clear there is a presumption that parliament had no intention of criminalising someone who was not blameworthy in their actions. This presumption can be overturned.

 

We are helped by Lord Nicholls words in B v DPP (2000), as to how the courts look for any necessary implication, when he said in effect that such implication may be found in 'the language used, the nature of the offence, the mischief sought to be prevented and other circumstances that might assist.' The case concerned a boy aged 14 charged with an offence of inciting a child under the age of 14 to commit an act of gross indecency (Section 1(1) of the Indecency with Children Act 1960). The issue arose as to whether the offence was one of strict liability in so far as the age of the victim was concerned. The accused believed the girl was over 14. The House of Lords quashed the boy's conviction.

 

Gammon (Hong Kong) Limited Yee Chin Teo Chak Shing Mak v The Attorney General (Hong Kong) [1984] UKPC 17 (8 May 1984)

B v DPP (2000) - British and Irish Legal Information Institute

AQA Criminal Law - Strict Liability flashcards | Quizlet

Strict liability



 

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