Unit_202_Principles_of_Liability

PartnersValerie Ingram LLBNishad Lochee LLBJames Exton LLB | 18 Temple Row. BirminghamB2 5DS | DX: 13853 Birmingham -1Phone: 0121 230 4932Fax: 0121 230 4933E-mail: ilexpt.co.uk | Ingram, Lochee & Exton Strict Liability Offences – Information for clients Strict liability offences are those in which it has been decided that mens rea (criminal intention) is not required and that if someone has fulfilled the actus reus (physical act) of the crime, whether they intended to or not, then this will be enough to convict. There is, however, a presumption of law that mens rea is required before a person can be found guilty of a criminal offence, this presumption and four others can be displaced by strict liability offences, and these presumptions were specified by Lord Scarman in the case: Gammon (Hong Kong) [1985]. 1. There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence. 2. The presumption is particularly strong where the offences is “truly criminal” in character. 3. The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute. 4. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such as issue. 5. Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. Lord Scarman laid down these criteria as those upon which the court should impose strict liability. The vast majority of strict liability offences have been deemed strict liability by statute; there are very few offences of strict liability in common law. Statutory strict liability offences include offences relating to the preparation of food, possessing unlawful weapons and drugs, and driving offences such as drink driving and speeding. Examples of common law strict liability offences include public nuisance, blasphemous libel, outraging public decency and criminal defamatory libel. There is generally no defence against strict liability offences, although there are some exceptions to this rule, but usually only if specific defences have been expressly mentioned in the relevant statute. Defences for strict liability are those that are relevant to actus reus and not the mens rea. Defences which are probably relevant to actus reus include automatism (automatism occurs when there is a total loss of voluntary control. Impaired or reduced control is not sufficient) and duress. The defence of honest mistake as to fact (in the sense of a belief in circumstances which, if true, would make the defendant's conduct innocent), will usually succeed in an allegation of strict liability. Defences which are relevant to mens rea have no place in cases of strict or absolute liability, since it does not have to be proved. With statutory strict liability the decision on whether or not the liability of the offence is strict depends on the wording of the act. There are several key words and phrases that the courts look at in the statute to decide whether or not an offence is strict liability. These include: permitting or allowing, cause, possession, knowingly and wilfully and maliciously. The interpretation of these words will be what decides whether or not a mens rea of intention, recklessness or negligence is required. Some very important cases have helped defining the strict liability principle, such as: Case: Sweet v Parsley [1970] where a school teacher let her house out to students. The students were smoking cannabis in the house. She was unaware of this activity. She was charged with an offence of being concerned with the management of premises which were being used for the purposes of smoking cannabis contrary to section 5 of the Dangerous Drugs Act 1965 (now replaced). The statute did not state any requirement of mens rea of the offence. The defendant appealed alleging that she had no knowledge of the circumstances and indeed could not expect reasonably to have had such knowledge. In quashing her conviction, The House Of Lords held that it had to be proved that the defendant had intended the house to be used for drug-taking, since the statute in question created a serious or "truly criminal" offence, conviction for which would have grave consequences for the defendant. In the case: B (a minor) v DPP [2000], where the defendant (a boy of 15) incited a child under 14 to commit an act of gross indecency. The defendant claimed that he’d believed the girl to be over 14. His conviction was upheld by the Divisional Court as it was considered a case of strict liability as the mens rea area of the statute was silent. The House of Lords overruled this decision emphasising that where the statute makes no mention of mens rea there is a presumption that it is required and this presumption is particularly strong if the offence is serious. Strict liability in criminal law is necessary in many offences. This is especially true of offences such as driving offences (speeding or drink driving) as convictions would be very hard to obtain if the prosecution had to prove recklessness, negligence or intent in every case.