Law and Rights
A basic rule in English criminal law is that, in order to convict a person, it is necessary to prove mens rea (i.e. either intention of recklessness) or, for a limited number of offences, negligence. In the event that none of those things has to be proved in respect of one or more elements of an offence, the offence is referred to as a Strict Liability Offence (SLO). Strict liability offences are usually created by statute and it is a question of interpretation whether strict liability applies. Of course, in an ideal world, parliament would clearly state what must be proved.
An example of a strict liability offence is driving with excess alcohol (Road Traffic Act 1988 s5). The driver is liable even if he is not responsible for his condition (e.g. because his drink was "laced"). [The latter may result in no disqualification].
How then do the courts decide whether a particular offence is a SLO?
A useful starting point is to remember that there is a presumption that mens rea applies - Sweet v Parsley 1970 (House of Lords). This has been confirmed in many subsequent cases - e.g. Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong 1985; Pharmaceutical Society v Storkwain 1986, B (A Minor) v DPP 2000 etc. However, the presumption of mens rea can be displaced if it is necessarily the implication of the statute.
The cases reveal a number of factors which may indicate that parliament intended strict liability. No single factor is conclusive.
1. Other sections in the same statute use words requiring mens rea but the section under consideration does not.
2. What is the purpose of the statutory provision. In Storkwain, the purpose was to prevent persons obtaining drugs from chemists by presenting forged prescriptions. Chemists were therefore required to take considerable care to check prescriptions.
3. What is the social context? For example, does the provision apply only to a limited class of persons such as those in a particular trade where considerable care is required- (e.g. food production and retail, sale of intoxicating drink etc).
4. What is the danger involved? Driving is a potentially dangerous activity and this helps to explain why offences such as excess alcohol are strict liability.
5. Severity of punishment. The more severe the penalty the less likely it is that there will be a SLO though this is not conclusive since Firearms Act 1968 s(1)(a) is a SLO carrying a maximum offence of 5 years imprisonment.
6. Will the imposition of strict liability encourage greater care and vigilance?
7. The enactment of a "due diligence defence" (sometimes coupled with "act of a third party") points to a SLO.
For a case where the House of Lords applied the presumption of mens rea see DPP v Collins [2006] UKHL 40. The speeches were not too lengthy and it is worth reading. The case concerned the Communications Act 2003 s.127. A recent prosecution under this section is that of Mr. Paul Chambers who, acting out of frustration at an airport closure due to snow, sent a rather ill-advised "tweet" - see The Guardian 11th May. Those interested in further views on this actual case are referred to Jack of Kent.
It is claimed that strict liability is justifiable because it protects against risks and improves standards. However, if harm could not be prevented by even the exercise of all due care, the prosecution of the blamelessly inadvertent person achieves little and could discourage others from engaging in the activity.
Interestingly, Australia and Canada have developed a common law "due diligence" defence but there has been no similar development in England and Wales. Maybe there should be?
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Law and Rights
Corners of the Criminal Law 1 - Strict Liability - is it fair?
An example of a strict liability offence is driving with excess alcohol (Road Traffic Act 1988 s5). The driver is liable even if he is not responsible for his condition (e.g. because his drink was "laced"). [The latter may result in no disqualification].
How then do the courts decide whether a particular offence is a SLO?
A useful starting point is to remember that there is a presumption that mens rea applies - Sweet v Parsley 1970 (House of Lords). This has been confirmed in many subsequent cases - e.g. Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong 1985; Pharmaceutical Society v Storkwain 1986, B (A Minor) v DPP 2000 etc. However, the presumption of mens rea can be displaced if it is necessarily the implication of the statute.
The cases reveal a number of factors which may indicate that parliament intended strict liability. No single factor is conclusive.
1. Other sections in the same statute use words requiring mens rea but the section under consideration does not.
2. What is the purpose of the statutory provision. In Storkwain, the purpose was to prevent persons obtaining drugs from chemists by presenting forged prescriptions. Chemists were therefore required to take considerable care to check prescriptions.
3. What is the social context? For example, does the provision apply only to a limited class of persons such as those in a particular trade where considerable care is required- (e.g. food production and retail, sale of intoxicating drink etc).
4. What is the danger involved? Driving is a potentially dangerous activity and this helps to explain why offences such as excess alcohol are strict liability.
5. Severity of punishment. The more severe the penalty the less likely it is that there will be a SLO though this is not conclusive since Firearms Act 1968 s(1)(a) is a SLO carrying a maximum offence of 5 years imprisonment.
6. Will the imposition of strict liability encourage greater care and vigilance?
7. The enactment of a "due diligence defence" (sometimes coupled with "act of a third party") points to a SLO.
For a case where the House of Lords applied the presumption of mens rea see DPP v Collins [2006] UKHL 40. The speeches were not too lengthy and it is worth reading. The case concerned the Communications Act 2003 s.127. A recent prosecution under this section is that of Mr. Paul Chambers who, acting out of frustration at an airport closure due to snow, sent a rather ill-advised "tweet" - see The Guardian 11th May. Those interested in further views on this actual case are referred to Jack of Kent.
It is claimed that strict liability is justifiable because it protects against risks and improves standards. However, if harm could not be prevented by even the exercise of all due care, the prosecution of the blamelessly inadvertent person achieves little and could discourage others from engaging in the activity.
Interestingly, Australia and Canada have developed a common law "due diligence" defence but there has been no similar development in England and Wales. Maybe there should be?
- Criminal Cases ~ What Must Be Proved And To What Standard?
An interesting situation has arisen in Kansas, USA. The Guardian 7th October reports a matter that is concerning the Supreme Court of the USA. "Supreme court tensions over capital punishment burst into the open again on Wednesday as rival...
- "drink / Drive" ~ Lower Limits Apply In Scotland
From 5th December, the alcohol limit for driving in Scotland has been reduced - see Scottish Government - Lower Drink Drive limits and also Scottish Government - New Drink drive limit. It appears that prosecutions are likely to be brought even in...
- Joint Enterprise 2 ~ Involvement In Crime
Previous post - Joint Enterprise 1 - Setting the Scene The criminal law seeks to punish not only principal offenders (those who perform the act prohibited by the definition of a criminal offence) but also a range of others who are involved in crime. ...
- Supreme Court ~ Road Traffic Act 1988 S3zb ~ Uninsured Driving ~ Causing Death
UPDATE: The Supreme Court has allowed Mr Hughes' appeal. There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56. There mere fact of being on the road (when uninsured etc) is not enough...
- The Twitter Joke Case
When enacting legislation, Parliament does not usually seek to define ordinary words of the English language. Where Parliament wishes a word or phrase to have a special meaning, there will usually be an interpretation section. Unfortunately,...