Strict liability offences

"Strict liability offences are an expression to the general rule that the prosecution has the burden of proving that a person excused of a crime possesses the relevant guilty mind. However modern day society dictates that a number of situations should be excluded from this requirement" Explain in the light of the above comment whether you agree that the creation of strict liability cases can ever be justified.

With most cases in the legal system, the prosecution will normally have to establish that an accused has carried out the prohibited criminal act (actus reus) with the accompanying guilty mind (mens rea). However there are some crimes which do not require proof of mens rea – Intention, recklessness and even negligence are offences of strict liability. The defendant has no excuse no matter how careful he has been, simply causing the prohibited consequence will be sufficient to convict.

This is shown in the case of Callow v Tillstone (1900), A butcher asked the vet to examine a carcass, the vet gave the wrong recommendation although the vet was unaware of it. The butcher sold the meat, although the butcher had taken all the steps he was still convicted of endangering people. Most strict liability offences have been created by statute, however public nuisance and blasphemous libel are examples of common law strict liability offences.

A case which shows this is Lemon and gay news ltd 1979, The defendants were charged with blasphemous libel for publishing wicked and unlawful libel concerning the Christian religion. The jury were directed that it was not necessary to prove intention other than an intention to publish that which in the jury's view was a blasphemous libel. A classic case of strict liability is R v Prince (1875), The defendant ran off with an under-age girl, The defendant knew that she was in the custody of her father but believed she was 18.

However it was sufficient to show that the defendant intended to take the girl out of the possession of her father whether he thought she was 18 or not. Two later cases of B v DPP (1998) and R v K (2001) challenged Prince, and both these cases the facts are similar to that of Prince however the courts have moved the balance of justice to the defendant and not the welfare of the child in Prince. The current position with regard to sexual offences appears to be that mens rea is required as to age. I. e. Strict liability does not apply.

The present view on strict liability offences is set out in London Borough of Harrow v Shah and Shah (2000), A shopkeeper had unknowingly sold a lottery ticket to a 13 year old boy, even though the regulation is that no lottery ticket shall be sold anyone under 16. Even though the shopkeeper was unaware of the boy's age he had in fact committed an unlawful offence. In Sweet and Parsley (1970), Sweet was a landlady of a house let to her tenants, while she was away the police raided her house and found cannabis.

She was convicted under s5 of the dangerous drugs act of "being concerned in the management of premises used for the smoking of cannabis". Her conviction was quashed because the House of Lords said it had to be proved that the defendant had intended the house to be used of drug taking. In this cause the distinction between 'true crimes' and 'regulatory' offences was made. Lord Reid acknowledged that strict liability was appropriate for regulatory offences or quasi crimes – offences not criminal in any real sense, but merely an act prohibited in the public interest.

But the kind of crime to which a real social stigma is attached usually requires proof of mens rea, it is not in the public interest that an innocent person should be found guilty just to make convicting actual guilty people easier. The vast majority of strict liability offences are statutory. They originate from 18th and 19th century statutes relating to corruption of tobacco and foodstuffs. Faced with welter of legislation the courts abandoned the requirements of mens rea in many cases where they were no express words in the stature requiring proof of fault.

Strict liability has survived its Industrial Revolution origins and new offences may still be created, it is now accepted that the ordering of a complex modern society is simply not possible without the existence of such offences. The House of Lords has upheld the principle of strict liability on many occasions, the first being Warner v MPC (1969), The Lords held that the offence of unauthorised possession of drugs contrary to s. 1 of the Drugs Act 1964 amounted to a crime of strict liability.

Assistance may come from other sections of the same Act, If mens rea words are used in some sections, but not in others, this suggests that Parliament deliberately created offences of strict liability in the latter sections. In Cundy v Le Cocq (1884), the defendant was a publican who was convicted of selling intoxicating liquor to a person who was already drunk contrary to s. 13 of the licensing act 1872. Despite the face that the defendant did not know the man was drunk the court decided that sections contained the word 'knowingly' even though s. 13 did they inferred that it should apply to s. 13 as well.