Strict liability (criminal)
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In criminal law, strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.
It is used either in regulatory offences enforcing social behaviour where minimal stigma attaches to a person upon conviction, or where society is concerned with the prevention of harm, and wishes to maximise the deterrent value of the offence. The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords accepted that the pharmacist was blameless. The justification is that the misuse of drugs is a grave social evil and pharmacists should be encouraged to take even unreasonable care to verify prescriptions before supplying drugs. Similarly, where liability is imputed or attributed to another through vicarious liability or corporate liability, the effect of that imputation may be strict liability albeit that, in some cases, the accused will have a mens rea imputed and so, in theory, will be as culpable as the actual wrongdoer.
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Discussion of English law
Under the common law the rule is that crimes require proof of mens rea except in cases of public nuisance, criminal and blasphemous libel, and criminal contempt of court. Where the liability arises under a statute, there has been considerable inconsistency, with different rules of construction in statutory interpretation producing varying assessments of the will of Parliament. But, in Sweet v Parsley [1970] AC 132, Lord Reid laid down the following guidelines for all cases where the offence is criminal as opposed to quasi-criminal:
- Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision.
- It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
- The fact that other sections of the Act expressly require mens rea is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.
Hence, the literal rule is qualified, and there is a rebuttable presumption that Parliament intended a mens rea to be a requirement in any section which creates an offence where the social stigma following conviction and the punishment available to be imposed show this to be a truly criminal offence. In Gammon v AG for Hong Kong (1985) AC 1, Lord Scarman rebutted the presumption because public safety was threatened. Hence, statutes involving pollution, dangerous drugs, and acting as a director while disqualified have been interpreted as imposing strict liability. In Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. (1998) 2 WLR. 350, examples are given of cases in which strict liability has been imposed for "causing" events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent. If words like "knowingly" or "wilfully" appear in the section, the inference is that Parliament intended a mens rea requirement in that section. But, if words implying a mens rea are present in some sections but not others, this suggests that Parliament deliberately excluded a mens rea requirement in those sections which are silent.
In considering offences created in the Children Act 1960, Lord Hutton in B (a minor) v DPP (2000) 1 AER 833, states the current position at p855:
- the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime – the test is whether it is a necessary implication.
As to the meaning of "necessary implication", Lord Nicholls said
- Necessary implication connotes an implication that is compellingly clear. Such an implication can be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence. Necessary implication may arise from not only the statutory provision under review but also from the rules governing that provision to be deduced from other provisions.
Thus, the court must examine the overall purpose of the statute. If the intention is to introduce quasi-criminal offences, strict liability will be acceptable to give quick penalties to encourage future compliance, e.g. fixed-penalty parking offences. But, if the policy issues involved are sufficiently significant and the punishments more severe, the test must be whether reading in a mens rea requirement will defeat Parliament's intention in creating the particular offence, i.e. if defendants might escape liability too easily by pleading ignorance, this would not address the "mischief" that Parliament was attempting to remedy.
Sexual Offences Act 2003
Section 5 of the Sexual Offences Act 2003 is a Strict Liability Offence
If there was any doubt that Section 5 of the Sexual Offences Act 2003 is an offence of strict liability any such doubt was dispelled by the House of Lords. The appellant pleaded guilty to the offence of rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003. The appellant was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. For the purpose of sentence, the prosecution accepted the appellant's version of the facts, namely, that the accused was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15.[1]
United States
As a jurisdiction with due process, the United States makes only the most minor crimes or infractions subject to strict liability. One example would be parking violations, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. But serious crimes like rape and murder require some showing of culpability or mens rea. Otherwise, every accidental death, even during medical treatment in good faith, could become grounds for a murder prosecution and a prison sentence.
Another area where strict liability tends to show up is in drunk driving laws; the punishment tends to be given on a strict liability basis, with no mens rea requirement at all. This was important for the purposes of a U.S. Supreme Court case in 2004, Leocal v. Ashcroft, where a deportation order was overturned because the conviction that led to the deportation order was a strict liability law, while deportation was only allowed upon conviction if the crime was a "crime of violence" (where violence, or the potential for it, was inherent in the crime itself).
In many states, statutory rape is considered a strict liability offense. In these states, 22 as of 2007, it is possible to face Felony charges due to not knowing the age of the other person.[citation needed]
Australia
Recent occupational health and safety legislation creates strict liability for OHS offences. Also, certain other industrial offences such as pollution tend to be enacted in terms of strict liability.
Canada
Since the 1978, Canadian criminal law has recognized a distinction between offences of "strict" and "absolute" liability. In R. v. City of Sault Ste-Marie the Supreme Court of Canada created a two-tiered system of liability for regulatory offences. Under this system, the Crown would continue to be relived from proving the mens rea of the offence. However, offences of strict liability would grant the accused a defence of due diligence – which would continue to be denied in cases of absolute liability. Further, in the absence of a clear legislative intent to the contrary, the Court held that all regulatory offences would be presumed to bear strict liability.
Following the enactment of the Canadian Charter of Rights and Freedoms in 1982, this distinction was upheld in Re B.C. Motor Vehicle Act. The Supreme Court further held that the inclusion of the possibility of imprisonment − no matter how remote − in an offence of absolute liability violated the accused's Section 7 right to liberty.
See also
References
- Allen, Michael. (2005). Textbook on Criminal Law. Oxford: Oxford University Press. ISBN 0-19-927918-7.
- Carpenter, (2003). "On Statutory Rape, Strict Liability, and the Public Welfare Offense Model". American Law Review. Vol. 53, 313.
- Carson, W. G. (1970). "Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation". Modern Law Review Vol. 33, 396.
- Glazebrook, P. R. (2001). "How old did you think she was?" Camb. Law Journal 26.
- Ormerod, David. (2005). Smith and Hogan Criminal Law. London: LexisNexis. ISBN 0-406-97730-5.
- Simons, (1997). "When Is Strict Criminal Liability Just?" Journal of Criminal Law & Criminology. Vol. 87, 1075.
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