Detailed notes on this element of the criminal law. In-depth explanation of concepts and reference to cases throughout. Useful for coursework/assignments and revision for exams.
An element of the actus reus of an ofence is ‘strict liability’ if that element does not have any
mens rea. Strict liability ofences can therefore be distnnuished from crimes of absolute liability
which are ofences with no mens rea at all.
In a crime of strict liability or absolute liability, a person could be nuilty even if there was no
intenton to commit a crime. The difference between strict and absolute liability is whether the
defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a
defence.
For crimes of strict liability, the prosecuton does not have to prove intenton, recklessness, or
even nenlinence in relaton to the actus reus element. Fault is irrelevant to liability (Sandhu
[1997]) hence D can be convicted even thounh in moral terms he is not blameworthy.
Where a statute is silent as to mens rea, the judne must interpret the provision to decide if the
ofence has mens rea (the startnn point) or is one of strict liability.
There is a debate about whether the impositon of criminal liability in the absence of proof or
fault can be justied.
Exam tp* A study of strict liability can encompass issues surroundinn proof. Because the
prosecuton does not have to prove fault, and D cannot prove the absence of fault, is this fair?
One answer is to allow D to prove absence of fault, but that minht confict with the presumpton
of innocence.
Strict liability at common law
Strict liability at common law is increasinnly rare. The only remaininn common law ofences
where liability is strict are public nuisance, outraging public decency, and the publicaton of a
defamatory libel.
Strict liability by statute
There are hundreds of statutory strict liability crimes.
Where the statute is silent as to mens rea, then whether the crime is strict liability is a mater of
judicial reasoninn, and the reasoninn involves issues of precedent, and statutory interpretaton.
The leadinn case on judicial reasoninn in respect of strict liability is Gammon [1985] – The
appellant was a builder who had deviated from plans in the constructon of a buildinn. It was an
ofence to deviate from the plans in a substantal way. The appellant accepted he had deviated
from the plans but he believed that the deviaton was only minor rather than substantal. It was
held the offence aas one of strict liability and therefore his belief aas irrelevant and his
convicton upheld.
There is a presumpton of mens rea
1
, Criminal Law
This means the judnes’ task is to presume the ofence has a mens rea requirement and
therefore if the prosecuton cannot prove D had the mens rea, D is not nuilty. (Saeet v Parsley
1970]) – Landlord accused of mananinn property where cannabis was beinn used. She didn’t
know about this and the common law required knowledne of the actvites in order to impose
liability. Her charnes were dropped.
Displacinn the presumpton of mens rea can be done only if it is a necessary implicaton on the
wordinn of the provision (B v DPP [2000]) – D, a boy aned 15, repeatedly asked a 13 year old nirl
to perform oral sex durinn a bus journey. He was convicted of incitnn a nirl under the ane of 14
to commit an act of nross indecency. D said he honestly believed that the nirl was over 14. The
House of Lords held it was not necessary to displace the presumpton of mens rea, nor was it
‘compellinnly clear’ that Parliament intended liability to be strict. The mens rea was lack of an
honest belief that the complainant was aned 14 or over. Charnes were dropped.
The presumpton is partcularly stronn is the ofence is truly criminal
Crimes can be classiied as truly criminal, and conversely therefore not truly criminal. This
nenerally means;
Serious crimes, those with lonn sentences, and/or carryinn a stnma on convicton are
truly criminal and are more likely to have mens rea
Quasi-crimes, renulatory crimes, minor crimes, those carryinn a linhter sentence and/or
no stnma on convicton are more likely to be strict liability.
Issues concerninn public safety and vinilance
If the crime involves public safety, such as food safety, employee safety, drivinn and road safety,
access to the emernency services and so on and in the courts view makinn the crime one of
strict liability will ensure greater vigilance and act as a deterrent to others then even if the
crime is ‘truly’ criminal, it can be a strict liability ofence. (Blake [1997])
Exam tp* The Privy Council laid out the test for judges to use ahen determining ahether an
offence imposes strict liability (Gammon test, see case above) – First, there is a presumpton
of law that mens rea is required before a person can be held nuilty of a criminal ofence and that
presumpton is partcularly stronn where the ofence is ‘truly criminal’ in character. The
presumpton can be displaced only if this is clearly or by necessary implicaton the efect of the
statute and only where the ofence is concerned with an issue of social concern. However, even
where a statute is concerned with such an issue, the presumpton of mens rea stands unless it
can also be shown that the creaton of strict liability will be efectve to promote the object of
the statute by encouraninn nreater vinilance to prevent the commission of the prohibited act.
Can strict liability be justiede
NO:
2
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