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Principles of Criminal Law:

Strict Liability

By the end of this unit, you will be able to:

Define what is meant by a ‘strict liability’ offence Understand the statutory basis of these offences, and illustrate with examples Explain how the courts have interpreted SL offences Understand why strict liability offences exist.

You will also be able to evaluate:

Whether SL offences should exist and if they truly are ‘quasi-criminal’ How SL offences may be reformed in future, including the development of a general ‘due

diligence’ defence.

Homework During this unit, you will be set the following. This is essential to show understanding.

Homework sheet 3 The following is your summer holiday homework, which will be due in on the first lesson back after the holidays. Answer essay question15 from the guide to A2 Complete your case cards on the essential areas of strict liability.

Revise for a DRAG test on the elements of criminal liability (everything we have covered this term.

End of Unit Assessment:

In SEPTEMBER, you will be given a DRAG test on the principles of criminal liability. [This will include actus reus, mens rea and strict liability].

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Absolute Liability Offences.

Before we look at SL in a little more detail, we just need to revise these. These require no MR on behalf of D, nor do they require a voluntary action. They arise from a set of circumstances, and are controversial because D has no fault or action. This means that they should be very clearly defined.

Case Facts Ratio R v Larsonneur (1933)

Winzar v Chief Constable of Kent (1983)

AO2 Development: Should these be criminal offences? Why? Answer the questions below, using one of the cases to illustrate:

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Strict Liability

Remember: most crimes require both a mens rea and an actus reus.

Why?

Definition: Strict Liability offences are those which do not require any mens rea on the part of D to one or more elements of the AR and is complete when D performs the action. All that is required is that the voluntary action was done on the part of D. There is no ‘fault’ element and is complete once the action (or AR) is done. It does not even matter if D had taken all reasonable steps to avoid the criminal action!

TASK: Read the following case and explain on what grounds you think D was convicted – what were the courts trying to do? What might be the purpose of a strict liability offence?

Callow v Tillstone Facts: Ratio

This raises one important question: How can you sentence someone for a criminal offence, without a fault element?

Why have strict liability offences? Well, they were introduced during the Victorian era in an effort to raise standards (public health, food safety etc.) and have remained. The reasoning behind them is that by imposing a SL offence, it encourages higher standards of care, and are strictly forbidden because of the harm they may cause to others.

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The kind of thing that is covered includes:

1. Lutplooni = 2. Ofdo gieyhn = 3. Odra seytsf =

With all of these, it is the carrying out of the action which is prohibited and thus a mens rea, or fault element, is immaterial.

Origins and Development of Strict Liability The very first SL case was Woodrow (1845)…. The next two cases are two which are very well known, and illustrate the main development of the law… Cundy v Le Cocq (1884)

Sherras v De Rutzen (1895).

AO2 Thoughts: Why do you think that there were different decisions in these cases?

How does the DC distinguish between them?

Facts: This is said to be the first instance of a SL case. D was charged & convicted of possessing unadulterated tobacco, although he didn’t know it

was adulterated.

Law:

Facts: Law:

The DC held that s.13 Licensing Act 1872 was one of strict liability, as it lacked any reference to mens rea, or ‘knowingly’, whereas the rest of the act did.

The owner’s reasonable belief that the customer wasn’t drunk was not relevant.

Harm Protected From?

Harm protected from?

Facts: Law:

Harm protected from?

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Strict Liability Offences The majority of these are based in , with approximately 3,500 of around 7,000 statutes imposing strict liability. They are hugely relevant to everyday life and cover a wide range of areas including food, transport and road traffic offences. e.g. s.5 Road Traffic Act 1988 The majority of these offences are regulatory or what is known as ‘quasi-criminal’. They aren’t really criminal offences, and the moral stigma attached to them is negligible. – they are just trying to impose higher standards of care… or at least that is the justification for some of these…

Are there any common law SL offences then? Really, there are very few common law SL crimes… and cases based on them are even rarer… they are a creature of Parliament’s making.

Public nuisance Criminal libel Blasphemous libel Criminal contempt of court [This is now statutory, but is still a SL offence under the

Criminal Contempt Act 1981]

Whitehouse v Gay News (1979) HL The courts are not huge fans of SL – remember: it is usually the MR which turns ‘innocent’ actions in to criminal ones. They do not really approve of this area of the law, and have done their best to limit it – especially where Parliament has ‘forgotten’ to include any reference to any form on mens rea in the statute.

Remember: The courts cannot over rule Parliament on SL… why? The courts are very wary of extending it, especially into those offences which they consider “truly criminal” in character. One of their main assumptions is that there is MR for every offence, unless Parliament explicitly excludes it. (we’ll return to it later!)

Facts:

Law:

The intention to publish was enough. They did not need to have intent to blaspheme or even appreciate that there might be some offence caused. All that needed to be proved was that offence was caused.

Only one element of the offence required MR, and one element did not...

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SSTTRRIICCTT LLIIAABBIILLIITTYY:: WWHHAATT KKIINNDD OOFF AARREEAASS DDOOEESS IITT CCOOVVEERR??

Remember that these are supposed to be regulatory or quasi criminal offences carry no stigma and small punishment…. Do they? For each section, you will need to think about why you think that area of the law creates strict liability.

11.. PPoolllluuttiioonn// EEnnvviirroonnmmeenntt.. Alphacell v Woodward (1972)

Kirkland v Robinson (1987) DC

22.. FFoooodd SSaaffeettyy Callow v Tillstone (1900) Smedleys v Breed (1974) HL

The answer to “why have you got a tin of peas on the shelf miss!?”

Law:

Salmon LJ said that if water pollution was not a SL offence “a great deal of pollution would go unpunished and undeterred to the relief of many factory owners. As a result, many rivers which are now filthy, would become filthier still and many rivers which are now clean, would lose their cleanliness.” Protection of the environment triumphs reasonability

is the fact that three million cans over a seven week period were safe relevant?

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33.. PPuubblliicc SSaaffeettyy Atkinson v McAlpine (1974) R v Blake (1997)

44.. CCoonnttrrooll ooff HHaarrmmffuull WWeeaappoonnss R v Howells (1977)

The irony of this case was…

55.. RRooaadd TTrraaffffiicc OOffffeenncceess R v Bosher (1973)

Facts: D was convicted of not stating that his workers were working with & exposed to blue asbestos, even though they didn’t know under

Asbestos Act 1969.

Law: D’s conviction under the Wireless Communication Act 1949, was upheld by the CA. They said that the broadcast had the potential to interfere with emergency services, and therefore he was liable.

Facts:

D bought an antique gun, and thought that he did not need a firearms certificate for it. Despite his belief, he was convicted.

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s. 5 Road Traffic Act 1988 = Before we look at the next section, consider the facts of the following case, and the impact of ‘strict liability’ on those involved. Blakely & Sutton v DPP 1991

66.. SSoocciiaall CCoonncceerrnn Harrow LBC v Shah & Shah 1999

Ratio: Facts:

Warner v Metropolitan Police Commissioner 1969 Facts: Ratio: s. 1 Drugs (Prevention of Misuse) Act 1964

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AAOO22:: AARREE TTHHEESSEE AARREEAASS JJUUSSTTIIFFIIEEDD??

RREEMMEEMMBBEERR:: one of the main arguments behind allowing strict liability in the first place, is that it work to raise standards, and only really covers ‘quasi-criminal’ situations

AREA WHY IS IT AN SL OFFENCE? SHOULD IT BE? WHY/WHY NOT?

Pollution

Social concern

Food Safety

Public Safety

Driving Offences

Harmful weapons

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TTHHAATT’’SS WWHHAATT TTHHEEYY CCOOVVEERR BBUUTT......

HHOOWW DDOO II TTEELLLL IIFF IITT’’SS AA SSTTRRIICCTT LLIIAABBIILLIITTYY OOFFFFEENNCCEE OORR NNOOTT FFRROOMM TTHHEE AACCTT??

There are a few things to help you – but really it’s a little bit guess work and a lot of interpretation! The courts have laid out the four main assumptions in the following *key* case. Although it is a Privy Council Case, Lord Scarman’s rules have been adopted by the English Courts Gammon v Attorney General of Hong-Kong (1985) PC. Facts: Ratio: The following rules were laid down:

1. There will always be a presumption of MR in criminal offences.

2. Then presumption will be particularly strong iv the offence is ‘truly criminal’.

3. This will only be displaced if the statute clearly says so, or it’s clear through it’s implication of evvect.

4. Even then, it will only be displaced iv it is a matter of social concern; and

5. Even then, only iv they can show that by making it a SL offence it will lead to greater vigilance, to prevent the commission of the prohibited outcome.

So… whaddya think? Are there likely to be many offences that the courts will imply are SL?

““TTYYPPIICCAALL EEXXAAMMPPLLEE OOFF AA SSTTRRIICCTT LLIIAABBIILLIITTYY OOFFFFEENNCCEE”” Apply the Gammon rules to the following case:

Pharmaceutical Society v Storkwain (1986) HL Was the HL right? Why/why not?

Facts:

s.58(2) Medicines Act 1968. Maximum penalty: 2

years imprisonment.

Law:

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OOTTHHEERR RRUULLEESS??

1. Words…

Some words, when they appear in a statute will be taken to imply a mens rea… What type of words? Well, in this word search there are seven words: five of which the courts have decided mean that there is a MR, and two of which imply no MR. Which are which?

YES: MR NO: MR

Y C X J L A L I C G Y W

L R L P A E K U N D L B

G F G D S P E I X I S B

N S K U M L T Z J S U Q

I H A W R T E N X H O U

W C P F I B T O D O I L

O J M M I E L U F N C M

N I R B O A Z O G E I T

K E R E C K L E S S L Y

P R Z S Q R L Z T T A P

Y Y W J O T Y E L Y M K

N O I S S E S S O P A W

Now, one word caused the courts a little bit of a problem over the years… wilfully. They couldn’t seem to agree whether this imposes SL or not… The current assumption ( R v Sheppard & Sheppard 1980) is that it does imply some degree of MR. But, and this is the main problem… what if the statute simply doesn’t say?

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2. The court will presume that MR was intended (Gammon) Sweet v Parsley 1970 HL *KEY CASE* Facts: Ratio:

“Parliament did not intend to make criminals of those persons who are in no way blameworthy”

“Whenever a section is silent as to MR, there’s a presumption that… we must read in words appropriate to require MR…” Lord Reid.

We will return to this when we look at the sex offences, and what happens if knowledge as to V’s age is a requirement of the crime.

3. Other sections of the Act. Do they mention MR? If they do, the courts often take that to mean that Parliament deliberately left out MR in the other section, so it must be a SL offence. Remember Cundy v Le Cocq? Well, one of the reasons for convicting D here was that other sections of the Licensing Act 1872 used the word ‘knowingly’, whereas this one didn’t. The same approach was also taken in Storkwain. TASK: What might be the problem with this argument? What does it assume? However, this alone is not enough! In Sweet v Parsley the court said “the fact that other sections of the act expressly require a mens rea… is not in itself enough to justify a decision that a section which is silent as to mens rea creates a strict liability offence”. e.g. Sherras v De Rutzen 1895 s. 16(2) Licensing Act 1872… no MR What does the court do?

BUT s. 16(1) refers to ‘knowingly’

Stretch and Challenge Yourself! Write an extended paragraph in answer to the following question. You should be focusing on linking your knowledge (AO1) to criticism (AO2): What is the difference between a criminal and quasi-criminal offence? Does the distinction really exist, or is it an invention by the courts to avoid creating SL offences?

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TTHHEE OOPPEERRAATTIIOONN OOFF TTHHEESSEE RRUULLEESS IINN RREEAALLIITTYY:: AA CCAASSEE SSTTUUDDYY.. Do you require ‘proof of knowledge’ as to V’s age in sex offences?

Right, this is going to get a little complicated, but it will illustrate some of the main problems with Parliament’s awful drafting, and the interpretation of sections. The areas of the law that we are looking at are sexual offences against V’s aged 15 and under. Now before we go any further, you should remember that in law, there are two cut off points:

A child under the age of 13 is deemed not able to consent to anything in law or in fact. However, aged 13-15, the child may consent in fact, if not in law.

What if D thinks that V is older? Should this be a defence? Well, simply put, if the offence is SL – it is of no consequence, he would still be convicted.

Both of these concern s.55 of Offences Against the Person Act 1861 – which made it an offence to take an unmarried girl (under 16) from the possession of her father against his will R v Prince (1875) R v Hibbert (1869) How do the courts distinguish between these two cases? Do you agree? Why?

Well, one case that criticises the decision in Prince, is the next: a key case!!!

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B v DPP 2000 Facts: Ratio: s.1 Indecency with Children Act 1960 The MC decided that Liability was strict, and

convicted D, who then appealed to the HL.

They quashed his conviction. Amongst other things, they looked at the intention of the act, the stigma of a conviction, the maximum sentence (10 years) and the related sections, concluding that it was in the public interest to imply that V’s age needed some kind of MR on behalf of D.

R v K 2001 Facts: Ratio: Here, D was 26 and V 14. She consented and said that she was over 16 He was charged under s.14 Sexual Offences Act 1956 of sexual assault on a girl aged under 16. The section was silent as to MR regarding age. D was convicted and appealed. Kumar 2004 Facts: Ratio: s.12 Sexual Offences Act 1956 R v S 2005 CA Facts: Ratio: s.12 Sexual Offences Act 1956

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So that’s quite straightforward, but what if V is under 13? Under the recent Sexual Offences Act 2003, there are new offences created:

1. Rape of V aged under 13 (s.5) 2. Assault of V aged under 13 by penetration (s.6) 3. Sexual assault of V aged under 13 (s.7)

Now, it’s clear that s.5 creates a SL offence – so it is no defence that D honestly thought that V was over the age of 12 at the time of the rape, (In R v G 2006 the CA confirmed it, and it has just been upheld in the HL) but the question which troubled the court was, were the other two offences also SL? Well, by analogy, they have decided that they were. The next problem is section 9 of the act - this covered sexual activity with a child aged under 16. Now, iv we take the law as it currently stands, it would seem to be a little unfair to some Ds. Read the two statements below, and indicate which would have a defence:

D holds an honest and reasonable belief that V is aged over 16, and she is 14 D holds an honest and reasonable belief that V is aged over 16, and she is 12

TASK: Why has the court differentiated between the ages of Vs? Do you agree with the approach? Do you disagree? Agree? Why? Should there be a defence of honest reasonable belief? Reason your answer using appropriate cases below:

Ok, so that is the current state of the law – do you agree? [Do you understand?!] Were these acts “truly criminal” and therefore less likely to be SL offences?

R v G also talks about SL in relation to the ECHR, and concludes that there is no conflict.

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Defences and Due Diligence Our first consideration is whether or not there should be a defence to offences of Strict Liability. Should it matter whether you have taken all reasonable steps to prevent the illegal action, or should that be immaterial? Should Criminal and Quasi-Criminal offences be treated exactly the same? Should they both have a defence of reasonable action open to them? Remember, in both Prince and Callow v Tillstone, it was held to be irrelevant that D had either taken reasonable steps to remove the problem, or had a reasonable belief. R v Shah & Shah (1999) DC What then is ‘due diligence’? Why was the defence not open to them?

Facts: DD owned a newsagents. They sold lottery tickets and consistently told their staff and reminded them that they should ask for proof of age from anyone they believed to be under 16. One of DD employees sold a ticket to a boy who was under 16. D1 was in the back room, and D2 was not even on the premises. Are they still liable?

Law: s.13 (1)(c) National Lotteries Act 1993

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Parliament does include a range of due diligence defences in its statutes. However, there is no consistency in their use and this can make it hard for the court to decide whether one is available to D. In deciding whether such a defence exists, the courts approach this in much the same way as they do establishing whether strict liability exists in the first place. They look at the surrounding sections and other parts of the act. If there are such defences in other sections, it is likely that they will presume that Parliament did not intend one here [or they would have written it in!] It also seems to assume that in ‘truly criminal’ offences, a defence of due diligence [or no fault] is much more likely. To look at the courts’ recent approach to these offences, we need to return to the case of B v DPP (2000). Remember the ‘shiner’? This, and the other cases we are looking at, all revolve around reasonable belief as to the victim’s age. Should it matter whether D reasonably believed her to be over 13 or 16? The sections under investigation are s.14, and s.5 of the appropriate Sexual Offences Acts. EXAMPLES OF DUE DILIGENCE DEFENCES:

ss. 8 & 28 Misuse of Drugs Act 1971

s.6 Sexual Offences Act 1959 (as amended)

Reform Dead easy! The Law Commission’s Draft Criminal Code, published in 1977 suggests that all offences will have a MR presumed unless it is expressly stated in the law. This should make the lives of the court much easier and reduce the number of ‘accidental’ SL offences. One other proposal is that like Australia, NZ and Canada we have a general defence of ‘due diligence’ available to all defendants charged with SL crimes. The evidence from there seems to show that there is no real difference in standards, or problems despite having this – their pollution has not gone up, nor have food standards dropped, and this would take into account that D may do all he can, and still be convicted (Shah& Shah; Callow v Tillstone) Finally, Lady Wootton was a little radical and suggested that we should just get rid of proving MR for all offences. So for a conviction, all that would have to be proven was that they committed the acts or omissions alleged. The MR, she argues, would then be taken into account in sentencing!

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Evaluation of Strict Liability 1. Brainstorm the advantages and disadvantages of SL, and complete the table below [Leave yourself some room!] 2. Sort the cards – which are positive and which are negative?

ADVANTAGES DISADVANTAGES

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Questions on A level Law Review Article. [September 2005]

Read through the article and answer the following questions in detail. 1. What does the prosecution need to prove in relation to a SL offence? 2. What reason does the author give for SL to be ‘almost exclusively confined’ to statutory offences? 3. Are statutory offences always clear? 4. What did the court take into account in acquitting D in B v DPP (2000) HL? 5. What rules or conventions does the court use in deciding whether an offence constitutes strict liability? 6. What was the reason for the difference between the decisions in R v Prince (1875) and R v Hibbert (1869)?

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7. Which presumption did Street v Parsley (1970) reiterate? 8. What areas of the law does strict liability cover? Give a case for each. 9. What arguments does the author give against Strict Liability? 10. Do you agree that negligence is a better basis for liability? Give reasons for your answer. 11. What is a quasi-criminal offence?

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Strict liability offences are an exception to the general rule that the prosecution has the burden of proof of proving that a person accused of a crime possesses the relevant guilty mind. Discuss in light of this statement, whether you agree that the creation of strict liability offences can ever be justified.

Introduction:

Definition & justification

Evaluation

Statutory Basis

Evaluation:

Common Law:

Evaluation

Defences?

Absolute liability?

Conclusion

Evaluation Evaluation