Saturday, 15 May 2010

Corners of the Criminal Law 1 - Strict Liability - is it fair?

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?


  1. A new extreme in strict liability was reached in s14 Police and Crime Act 2009, which makes it an offence to pay for the sexual services of a prostitute who is subject to expoitative conduct, and it is declared to be irrelevant whether or not the accused knew or ought to have known of that conduct. In many cases it may well have been impossible for the accused to have found out whether or not the prostitute was being expolited. Surely a law which it is impossible to tell if you are breaching is a new low?

  2. Ed (not Bystander)23 May 2010 at 14:54

    I assume it's possible to know if the woman is a prostitute?

  3. A prostitute is a person who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment. In subsection “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.

    I suppose the provision of goods would include taking someone out to dinner, but provided it was done with the hope of sexual services, rather than prior agreement that they be provided, then I suppose the definition would not be met.

    What is more difficult, is knowing whether or not the prostitute is subject to expoilative conduct, simple questioning is obviously not good enough, so any suggestions as to how this can be established definitively? Or is perhaps the real reason behind the provision to create a situation in which the prostitute's client can not know if he is acting illegally or not, a way of trying to suppress prostitution somewhat without actually making it illegal on either side, because you doubt if you would get that through Parliament? Prostitutes' clients not commanding much public sympathy, so except for a few sticklers for legal niceties in the Lords, there is likely to be little objection raised. When you move on to apply the same principle to suppress something else, something that would get more sympathy from the public, there can be no objection in principle, the principle has alrady been established.

  4. Yes, Police and Crime Act 2009 s.14 appears to be strict liability with regard to "exploitation". The Explanatory Notes to the Act state that it is strict liability but, to date, I am not aware of any actual judicial decision to that effect. Nevertheless, Parliament has (in my view) made its intentions very clear.

    This is one of those difficult and emotive topics. The BILL was criticised by Liberty - see here.

  5. The verdict, the Court found, was necessarily correct in light of the trial court’s erroneous jury instruction which included the following element: “And third, that it was the defendant’s intention to deliver the gun to the police at the earliest possible time. Redwood city dui

  6. This was prescient. Shortly afterwards the Law Commission recommended "giving courts the power to apply a due diligence defence when interpreting the scope of the statutory offence."
    This was in their consultation on 'Criminal Liability in Regulatory Contexts'

    For those interested in detail I discuss that suggestion (with which, like ObiterJ I agree) here at pages 42 - 46.

    For many other freely accessible articles on legal drafting see:

    Kiron Reid,
    Lecturer in Law.