Saturday, 15 May 2010
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  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?