What is the difference between strict and absolute liability?
- Strict liability - MR is not needed for at least one element of the voluntary performed AR
- Absolute Liability - No MR is required at all and the AR need not be voluntary.
What is the difference between strict and absolute liability Case
- SLO - Storkwain 1986 - D was pharmacist issued drugs on a forged prescription, however he didn't know this at the time.
- However the court decided that an offence under s58(2) Medicines Act 1968 was a SLO to supply some drugs without a prescription from a doctor.
- Decided the pharmacist had supplied drugs without valid prescription and thus was guilty of the offense.
- ALO - Larsonneur 1933 - ordered to leave the UK but the country she went to deported her back to the UK - convicted under the Aliens order 1920 as she had no leave to land in the UK and was found there.
Why does strict liability exist?
- To regulate behaviour
- To drive up standards
- To fill necessary gaps with offences that are easy to create - over 3500 exist.
What are the general principles of strict liability?
- A lack of MR
- No need for fault
- No defence of 'all due dilligence'
- No defence of mistake
A lack of MR
- There is an initial presumption for MR but if it is not needed for at least one element of the AR the offence may be classed as strict liability - Prince 1875 - D took girl from her father, reasonably believing her to be 18 or over. She was under 18 - convicted intended to take girl and liability strict as to age to protect young girls.
- Hibbert 1869 - D met a girl aged 14 and they had sex - D not convicted as no proof he intented to remove girl from her father even though liability strict as to her age.
- AO2 - Enforcement of standards - easy way to improve behaviour BUT someone can be convicted without knowlegde.
No need for fault
Defendant can be liable even if the prohibited consequence occurs inadvertently and their act was totally blameless - Callow v Tillstone 1900 - Butcher convicted of exposing unsound meat for sale - irrelevant that vet passed meat as fit for human consumption
No defence of due diligence
- No defence even if D has took all possible care to stop it happening. - Harrow LBC v Shah and Shah 1999 - employee sold lottery ticket to child aged 13, mistakenly thinking over 16 - conviction even though given employees instructions on checking for age before sale and nothing more could have be done
- Sometimes Parliament has incorporated a defence of due dilligence into the statute.
- This is erratic and often illogical
No defence of Mistake
- No defence even if the mistake is honest - Cundy v Le Cucq 1884 - D charged with selling intoxicating liquor to drunken person - sales proven to have taken place and drunken state could have been observed even though no obvious evidence of it.
- This runs counter to principles found elsewhere in criminal law
- AO2: now some use of due diligence or acceptance of mistake BUT such defences are few and far between.
Strict liability isnt always statutory
Most offences created by parliament but few remain in common law - Gibson and Sylverie 1991 - D created earing made of freeze-died foetuses for an art exhibition - guilty of outraging public decency as there was no need to prove that their act was intentional or reckless.
Presumption of MR
Initial presumption in favour of MR is a basic element of criminal liability - Sweet v Parsley 1969 - D rented farmhouse to tenants who smoked cannabis. D charged with being concerned in management of premises used for smoking cannabis resin - if statutory section silent on MR, need for it is presumed - D not convicted as judge said it was not classed as a SLO.
The Gammon Test
- Gammon ltd v AG of Hong Kong 1984 - Deviating from building plans was breach of Hong Kong planning laws - created a test.
- Although a Privy council decision and therefore only persuasive president, this case has been accpeted as containing important principles.
- The presumption of MR can be displaced if:
- This is the clear or necessary implication from the statutory words
- The offence is not 'truly criminal'
- The offence is of social concern
- The offence will help to enforce the law through greater vigilance.
Wording of the Act
- Judges look at the statute for guidance. Words such as 'knowingly' and 'intentionally' mean the section does not create a strict liability offence
- A section is read in the context of the whole statute - if MR is mentioned in other sections but not the one at issue, an implication for strict liability may be drawn - Sherras v De Rutzen 1895 - D's daughter sold alcohol to constable on duty - no way of knowing due to lack of police armband - Not automatic that section without reference to MR therefore strict liability imposed
- Many offences are regulatory to encourage good behaviour
- Not the same as true crimes; example may include the preparation and selling of food, building regulations, licensing regulations and population. - Alphacell v Woodward 1972 - company charged with letting polluted water run into river - offence even though company did not know of pollution and had not been negligent.
- SLO designed to raise standards and protect consumers - Wings ltd v Ellis 1984 - Room provided by holiday company did not match brochure description
- AO2: Encourages good behaviour because it makes people try harder BUT big businesses may think improvement is financially viable and individuals are often disproportionately affected.
Strict liability penalties
- Fines are most common
- If imprisonment is a possibility an offence is less likely to be one of strict liability - B v DPP 2000 - D convicted of inciting child under 14 to commit act of gross indecency - likelihood of strict liability decreased as crime more serious in sentence and stigma.
- Exceptions to this rule are seen as unjust
- AO2: Good because penalties are usually only financial. Bad because some offences can result in prison sentence; financial penalties are often punitive for small businesses and individuals.
An area of social concern
- Used to drive up standards
- Ranges from the possession of firearms to the transmission of unlicensed broadcasts - Blake 1997 - D was a DJ convicted of broadcasting without a licence - Need to regulate behaviour and ensure that emergency services are not interrupted
Conflict with human rights
- Conviction can be very easy
- Lack of fault and acceptable defences can infringe basic human rights - K 2001 - K had consensual sex with girl he believed 16 or over but was in fact 14 - On question of defence of mistake, offence was not incompatiable with Article 6 right to a fair trial
- AO2: everyone is protected by higher standards BUT lack of mens rea and some punitive penalties counter basis human rights.
- Moral issues - It ensures necessary conviction and usually little moral context HOWEVER goes against basic principles of fault and blameworthiness, leading to new emphasis in areas such as sexual assault.
Easy enforcement of the law
- Can promote better behaviour and higher vigliance
- Provides a deterrent
- There has been a move away from strict liability in areas such as sexual offences - Kumar 2004 - D had consensual sex with boy ages 14 after meeting him in a club where policy to admit only over 18s - Convicted quashed on the basis the offence need to have MR so a honest mistake should be a defence.
- AO2: Stigma - characteristics behaviour that will not be tolerated
- Speed of judicial process - cases are dealt with quickly and conviction is likely BUT can be too easy to convict.
- Use of regulatory bodies - generates jobs and encourages compliance BUT high overall cost is high and bodies have considerable discretion
- Expense as most cases are heard by the magistrates.
- Construction of offences - good because parliament uses social paternalism BUT many created by delegated legislation so lack of knowledge and clarity.
- Make every offence clear in its MR requirements
- Includes a defence of all due diligence in every offence as is the case in Australia and Canada
- Move to administrative law
- Helpful to tighten up wording, introduce defences and move out of criminal law BUT little happened except small growth in defences.