How has Strict Liability developed in criminal law? Is it ever justified?

The primary aims of the criminal law are the protection of fundamental social issues, and the condemnation of those who violate them in any instance. Strict liability refers to offences that ‘require proof that the defendant performed the prohibited conduct but do not require proof that the defendant was

blameworthy’ . There are around eight thousand or more, and the vast majority are found in statutes, all of which tend not to carry the weight of moral censure that the more comparatively serious offences carry, and whose purpose is to regulate and maintain social norms, rather than denounce individuals as morally reprehensible. Yet, as Lord Reid once put it: ‘There has for centuries been a presumption that parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.’

It is left to the courts’ own interpretation to determine whether they believe that it was parliament’s intentions to enforce the relevant law in the light of mens rea. The principle of strict liability has witnessed a chain of pivotal alterations to its inherent concept since it was officially recognised in English common law in the late nineteenth century. This is a result of the courts’ inconsistency in their decision making. To demonstrate this, several main cases of different type and circumstance may be observed.

In the late 1800’s it seemed as if strict liability got off to a rather inconsistent start. R v Hibbert depicts a situation in which the defendant has taken a 16 year old girl ‘out of the possession of her father’ yet argued he was unaware, or had not considered that she had a father in the first place. His conviction, presuming mens rea, was thereafter quashed on the grounds that the prisoners had met the girl in the streets, and it was possible that he might not have known that the girl had a father. ‘There is no statement of any finding of fact that the prisoner knew or had reason to believe that the girl was under lawful care.’
Yet, in the slightly later, very similar case of R v Prince , the courts were not so lenient and his conviction was upheld, despite the accused’s honest and even reasonable mistake. The defendant believed the girl to be eighteen as this is what she had told him and he had no reason to believe otherwise. Denman, J held that ‘the legislature has enacted that if anyone does this wrong, he does it at the risk of her turning out to be under sixteen.’

In the same century two more cases of similar context to one another were seen to have different outcomes. In Sherras v De Rutzen a licensed victualler was convicted of serving alcohol to a police officer who he had reasonable grounds to believe was off duty, when in actual fact he was not. It was held by the House of Lords that mens rea was a necessary element as the word ‘knowingly’ had been intentionally omitted. The conviction was thereafter quashed. Yet in the case of Cundy v Le Cocq which involved an offence whereby the defendant served alcohol to a person who was drunk, it was the view of the House of Lords that the knowledge of the condition of the person, the reasonable belief, was not an issue and he was convicted. Countless contradictive permutations have occurred since these to date.

During the 1960’s there were many held liable for quite serious drug-related offences without proof of fault. This was then halted in 1970 by the leading, pivotal case of Sweet v Parsley where the defendant had rented her property out to others who unbeknowingly to her engaged in the recreational use of cannabis on the grounds. Suggesting a much stronger adherence to the presumption of mens rea, a criteria was established, whereby if ‘a section is silent to mens rea…we must read in words appropriate to require mens rea…’ and even if other sections expressly require it they believed it necessary to look beyond the act and examine all relevant circumstances to ascertain the intention of Parliament. In addition, if two interpretations existed, the one ‘which is most favourable to the accused must be adopted’. Their Lordships were unanimous in holding that the statute should be construed in a way that mens rea is required and the conviction was quashed.

However, during the next decade or so, this presumption did not fare well and the outcome of Sweet v Parsley was in no way denial of strict liability. It was displaced shortly after by Alphacell v Woodward followed by Gammon (Hong Kong) Ltd v Attorney General of Hong Kong . Both of these cases fitted in with criteria for strict liability offences set out by Wright, J in Sherras v De Rutzen . He said that those cases where the prohibited acts are ‘not criminal in any real sense’ but are acts which in the interest of public safety are prohibited under a penalty, need not require mens rea.

In the earlier of the two, Alphacell v Woodward , the defendants were convicted for unknowingly polluting a stream. The House of Lords understood that it was a circumstance ‘which no human ingenuity could have foretold’, but decided to avoid the complication by infusion of the concept of mens rea, as it would have unnecessary and undesirable consequences. They saw no reason to read ‘knowingly’ into the relevant section of the Act before the word ‘causes’, as ‘causes’ was to be given ‘a commonsense, plain and unambiguous meaning.’ They established that although it was not the actions of the appellants that caused the overflow into the stream, the appellants had caused the polluting effluents to escape and it could not have been parliaments intentions to make knowledge an essential ingredient of this offence as ‘it would mean that a burden of proof would rest on the prosecution that could seldom be discharged’.

In the latter case of Gammon v Attorney General of Hong Kong , it too deals with a matter of public interest and safety. The appellants were a group of construction businesses charged with material deviation. Lord Scarman agreed with Wright, J.’s statement and declared that the presumption of mens rea is particularly strong where an offence is ‘truly criminal’, but this may be displaced where the offence relates to issues of social concern or by clear or necessary implication in the statute. He continued to say that even where a statute deals with such issues, the presumption of mens rea will stand unless the courts can prove that the establishment of strict liability will be an efficacious means of promoting the objects of the statute by ‘encouraging greater vigilance to prevent the commission of the prohibited act.’ Another factor which helps to decide upon the severity of the offence and the importance to penalise is evident when reviewing the penalty. The offence carried a $250, 000 fine and three years imprisonment which indicates how serious the legislature viewed this offence. On these grounds the appeal was dismissed.

The decision in Sweet v Parsley continued to be displaced into the eighties, by a case that B.Jackson describes as ‘a harsh, anomalous case’ and believes that ‘Parliament could not have intended such an unjust result as that reached.’ This is the Pharmaceutical society of Great Britain v Storkwain ltd involving the sale of medicines to another by forged prescription, yet done without any knowledge and in good faith. The Pharmaceutical Society will always give consideration to the sophistication of the forgery and the precautions taken by the pharmacist, but they are put in a difficult position whereby if the initial decision of the Stipendiary stood, it might become difficult to prosecute even blameworthy pharmacists, therefore threatening the standards and professional standing of pharmacists as a whole. A decision by Farquarson, J was considered; he said that as pharmacists are in a position to put illicit drugs and indeed other medicines on the market ‘it can therefore be readily understood that parliament would find it necessary to impose a heavier liability on those in such a position, and make them more strictly accountable for any breaches.’ Yet, in the true fashion of the development of strict liability, this outcome conflicts with that of a previous case where the defendant’s conviction was quashed, despite the facts of the case being identical, under the same Act .

It was only until the new millennium in two leading authorities, involving sexual offences against children that a renewed approach on the subjective nature of the mental element was adopted, namely B (A Minor) v DPP and R (A Minor) v K . Their Lordships had to deliberate over whether or not a mistake as to age afforded a good enough defence, or whether the statutory legislation produced mens rea requirements on specific elements. B committed an act of gross indecency contrary to s1(1) of the Indecency with children Act (1960) (now amended by the Sexual Offences Act (2003)). It was accepted that the defendant had honestly believed that the victim was over 14 years old, yet he was convicted anyway. The question arose as to whether the defendant is entitled to an acquittal for inciting a child under 14 if he held an ‘honest’ belief that she was over 14. Their Lordships asserted that the more serious the nature of the crime, the less likely it should be that the presumption of mens rea should be rebutted. They were satisfied that parliament would only intend the creation of strict liability with ‘compellingly clear’ implication. They held that if a defendant was to be charged with the offence, the prosecution must be able to prove that they lacked the necessary ‘honestly held belief’ and it should be expressly or by necessary implication in the wording of the statute.

In the instance of R v K , where a 26 year old male was charged with sexually assaulting a girl under the age of 16, the defendant argued that in his defence, the girl had said she was over 16 and he had no reason to believe otherwise. The details draw similarities with that of the much earlier Prince , a case which up until now would have been used as an Authority, which by means of B v DPP and R v K has now been rendered obsolete. The same issues ensue in all three; does mistake as to age constitute a defence; how serious is the offence regarded; and should the mens rea be an essential ingredient? Lord Bingham stressed that the offence carries up to 10 years imprisonment and is a serious crime, therefore imposing strict liability may be seen as contrary to the intentions of Parliament. On these grounds, Sweet v Parsley was applied and the conviction was quashed.

Following the outcomes of the aforementioned cases, it must be noted that the courts have now ousted the defence of ‘reasonably held belief’ and have taken on a new approach, that of an ‘honestly held belief’. Although, it would be a mistake to believe that the courts now favour mens rea, as it may be shown in some recent cases that this is not the case. As a brief example, consider Barnfather v London Borough of Islington Education Authority . Parents are now liable to prosecution if their children are found to be playing truant regardless of their knowledge of it. Also in the case of Matudi v The Crown , anyone importing or exporting prohibited animal products, whether they know about it or not, will be prosecuted. This is because the courts realise that in some aspects of the law, strict liability still plays a crucial part in English law where regulation is needed.

After considering all of the cases mentioned, the question that still exists is, is criminal liability without fault an efficacious means of regulating society and preventing harm? On the face of it, the concept is seemingly iniquitous. The notion of prosecuting a person for an act that he was in no way at fault for, or wholly unaware of appears to contradict what the criminal justice system stands for and its intentions as a regulating body.

As highly criticised as the concept is, it is necessary in some exceptional, lesser ‘crimes’ where maximum safety is a central issue. For instance, taking an example from Herring.J, if mens rea was a requirement for speeding offences, it would be nigh on impossible for prosecution to convict the defendant if they claimed they were unaware, as there would be no way of proving otherwise. In these less stigmatic ‘crimes’ the ease of proof makes the courts job a lot simpler, and also less public funding and court time is usurped in the process.

In the instance of public safety, without strict liability it would prove difficult to prosecute those who operate in spheres of potentially dangerous activities, which pose a risk to the public, such as in Gammon. Most strict liability offences are in actual fact created in order to prevent or deter such occurrences, and particularly where the sale of medical drugs, alcohol and food, or pollution is concerned as in Storkwain and Alphacell. It requires that people, businesses and other bodies must not merely ‘take reasonable steps’, but do everything humanly possible in order to prevent damage or harm. Ashworth.A believes that ‘many of the harms which threaten or afflict citizens today are the result of the acts or emissions of corporations…..and there is no social unfairness in holding them to higher standards than individuals when it comes to criminal liability, so long as fair warning is given.’

The trouble this invokes is that it would then seem that parliament requires those involved to take unreasonable measures, as in the aforementioned cases of Alphacell v Woodward, Gammon and even Storkwain, which in turn may have the ‘negative effect of discouraging those who engage in socially beneficial activities.’ Yet B.Wooton argues that it would be ridiculous ‘to turn a blind eye to those [offences] which were due to carelessness, negligence or accident.’ As rational as this sounds, in doing so it would mean that society and the sanction of law itself would occasionally have to sacrifice good, honest people in order to eradicate those knowingly engaging in mal practice. Surely this was not the intention of parliament.

It is also ‘socially unjust to deploy the stigmatic process of prosecution against individuals who commit relatively minor or tame offences’ . Convictions are official and therefore defame, and indeed condemn the defendant on behalf of society and label them as a reprehensive wrong-doer, despite them carrying out the ‘criminal act’ with an innocent mind or in good faith.

It would be an overstatement to regard the concept of strict liability as a ‘means of prevention’. It is based on an ideal which is rarely achieved and has not been a model of consistency. Although some may argue that it successfully regulates society in areas of public safety, a stronger argument lies within the negative and in recent years the climate of judicial opinion has become less favourable to the recognition of strict liability. It seems more rational to believe that ‘an individual who has no basis for believing he is engaging in unlawful conduct will not be deterred from engaging in that behaviour.’