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It is often said that no mens rea is needed for strict liability offences. This is probably an over simplification. A more complete answer would be that the prosecution does not have to prove the existence of mens rea for one or more of the elements of the actus reus of the offence.
Ordinarily the criminal law is concerned with blame worthiness. There are various levels of mens rea or blameworthiness. Some offences are more serious than others and, as a general rule, the more serious the offence the higher the level of mens rea required such as ‘intention’ or ‘recklessness’. This is related to the consequences of conviction and again, as a general rule, the more serious the offence – the greater the punishment.
In effect, it is possible to be convicted of a strict liability offence without any degree of fault. The defendant may not have acted deliberately or in any way to bring about the state of affairs. It may be enough that the situation has arisen.
The case of Prince 1875 is a good example of this and, whilst the legal principles behind the decision have now been criticised as a result of B v DPP (2000), it is often cited as an example of the no fault principle. In this case Prince was charged with an offence under S.55 of the Offences Against the Person Act 1861. He was charged with unlawfully taking an unmarried girl under the age of 16 out of the possession of her parents. He was convicted despite the fact that she looked much older than her actual 13 years and had led Prince to believe she was 18. The Act did not include the words ‘knowingly’ or ‘unknowingly’ and so the court held that liability arose when the necessary act was committed.
In most cases it is usually obvious as to whether the offence is a strict liability one or not. However, this is not always the case and the courts may have to make a ruling if it is not clearly stated to be a strict liability offence by Parliament. The House of Lords have made some important rulings in this area of the law. These rulings serve as a timely reminder that there is a common law presumption of the need for mens rea for criminal liability to be proved.
In Sweet v Parsley 1970, a teacher who leased a farmhouse near Oxford rented the accommodation to students. The students participated in the use of ‘soft’ drugs and the defendant was charged with and convicted of, being responsible for the management of premises which were being used in connection with the use of illegal substances under the Dangerous Drugs Act 1965. As one might expect, bearing in mind the nature of her job, she appealed against the conviction on the basis that the Act was silent on the matter of mens rea but that the prosecution had not done anything to override the common law presumption.
Her appeal failed in the Divisional Court and the case went to the House of Lords, where Lord Reid made his speech in which he was clearly able to distinguish between regulatory offences and ‘truly criminal acts’.
Lord Reid went on to explain that for regulatory offences he had no problem with the imposition of strict liability, but there was a strong presumption in law of mens rea for the truly criminal type of offence. The defendant’s conviction was therefore quashed. As a direct result of this ruling the Dangerous Drugs Act was replaced by the Misuse of Drugs Act 1971 . This latter Act now embraces the thrust of Lord Reid’s speech. The corresponding part of the Act, under which Sweet was originally charged, now contains the requirement of knowledge before liability can be imposed.
The House of Lords took the opportunity to follow and, in effect, reinforce the view of what the law should be in the case of B (a minor) v DPP 2000. The House of Lords clearly approved of the case of Sweet v Parsley 1970 and indicated that there was a clear general presumption of mens rea unless Parliament had provided otherwise. The late Sir John Smith was a clear supporter of this direction by the House of Lords. Again in Regina v. K (2001) the House of Lords took a similar view and arrived at a similar decision on the law.
In the main, strict liability offences are statutory by nature. In other words they have been specifically created by statute to deal with certain problems or situations. By way of exception there are a few common law offences such as public nuisance and criminal libel. Many strict liabilities are relatively modern in origin. There are many examples – The National Lottery Act 1993, The Wildlife and Countryside Act 1981 and The Firearms Acts are just a few.
There will be some strict liability offences which are more appropriately dealt with as serious offences. However the vast majority are properly considered to be minor or summary offences. As such, in many cases, it will be appropriate for the Magistrates Courts to deal with them by way of a summary trial.
Strict liability offences cover many aspects of day to day life and activities. As a result they are too numerous to list but extend to such activities as driving and road traffic offences, licensing (food premises, sale of alcohol and entertainment), food safety and pollution.
Strict liability offences have been with us for some time. As a result, there are a number of cases, which serve to illustrate the reasons for strict liability.
One reason for having strict liability is arguably for public protection and so that someone can be convicted if their actions unintentionally cause a prohibited consequence. In some cases the defendant is blameless. In Callow v Tillstone 1900 the issue was the protection of the public against the selling of unfit food. A butcher was convicted of selling meat which was unfit for human consumption, even though the butcher had taken the advice of a vet who had declared the meat to be fit. Food safety remains a priority and the apparent harshness of this and other decisions is reflected in food safety legislation in operation today.
In Smedleys v Breed 1974, for example, the manufacturer was convicted of selling unfit food and the House of Lords confirmed this. The subject matter being four tins of peas which contained caterpillars. The fact that millions of tins will have been produced without contamination was considered irrelevant.
Lord Salmon had no doubts about the merits of strict liability in the river pollution case of Alphacell v Woodward (1972). The company’s plea of ignorance about the obstruction causing the pollution held no sway with Lord Salmon who spoke of the risk of pollution going unpunished and undeterred in the absence of strict liability.
The principle of public protection runs like a common thread through a range of topics from such things as the protection of the countryside, unlawful weapons through to dangerous drugs. The argument that 'It is better to be safe than sorry' seems to be a strong one and has been adopted in numerous pieces of regulatory legislation supported by strict liability.
It can also be argued that strict liability is easier to prove than offences requiring the prosecution to establish mens rea. This may seem harsh to individuals but it could be said to be justifiable in many cases on the basis of the greater good i.e. the protection of the public at large. Strict liability saves valuable court time as well as the costs of representation as generally speaking cases are dealt with in a shorter space of time.
There are some strict liability offences which are said to give rise to ‘absolute’ liability. In these situations it is enough that the individual finds themselves in the situation that they are in, in other words they are ‘in the wrong place at the wrong time’. The case of Larsonneur 1933 is a good example of this ‘absolute’ liability or ‘state of affairs’ form of offence. In this case the defendant was being deported from Ireland back to the UK from where she had been deported as her permission to be in the UK had expired. She was escorted back to this country by officials who then promptly arrested her on arriving back in the UK because she was there without consent, she was charged with the offence of 'being' an illegal alien. Her argument that she did not want to be in the UK did not assist her. The unfortunate Ms Larsonneur was convicted.
Similarly in Winzar v Chief Constable of Kent 1983 the defendant, who was drunk, was removed from hospital premises against his will and placed in a police car on the public highway. He was then arrested for being found drunk on the highway. However such cases are rare. As can be seen below in many cases a defendant may be able to raise a due diligence defence.
The law recognises that in some circumstances it is only fair to accept that the individual has done all that they can to avoid the problem or harm intended to be prevented, by the strict liability legislation. This would be the case for a manufacturer or producer who has followed good practice and used all reasonable care and skill to protect the public using known information about processes or materials and technical know how. In such situations Parliament will sometimes include what is known as a ‘due diligence’ or ‘no negligence’ defence, enabling the defendant to raise such a defence.
Whether a defence is afforded is not always clear. This is illustrated by the case of London Borough of Harrow v Shah and Shah 2000 where the defendants were charged with selling a lottery ticket to a boy under the age of 16. The defendants claimed that they had put up clear notices warning staff not to sell tickets to persons of a given age and that they had provided training. The Divisional Court held that the offence was a strict liability offence and that they could find nothing to indicate that Parliament had intended to provide a ‘reasonable diligence’ defence. The case was referred back to the Magistrates to deal with on this basis.
Finally, it can be argued that another reason for strict liability is that it facilitates higher standards because the legislation invariably provides a framework which allows public authorities to serve notices requiring matters to be rectified and that, in the absence of remedial action, a prosecution is a consequence. In this way the authorities are able to promote acceptable practice and standards objectively.
Responsible businesses and individuals will no doubt endeavour to respond accordingly as they will be keen to avoid adverse publicity in the event of a prosecution before the criminal courts, and the enforcement agencies will tell businesses that they risk prosecution if they do not comply. The legislation will therefore act as a deterrent to many responsible businesses in the way that Lord Salmon foresaw. There will always be the risk of 'cowboy' enterprises and such persons may not be interested in complying but at the end of the day there is the ability to prosecute to enforce standards.
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