General elements of liability

1. General elements of liability STRICT LIABILITY

2. Aims and Objectives By the end of the session the student will be able to:- UNDERSTAND the concept of strict liability crimes. EXPLAIN the difference between strict and absolute liability. DEFINE what tests are applied by the Courts in deciding whether a case is one of strict liability or not. DISCUSS problems and benefits with strict liability crimes.

3. THINK!Should you be found guilty of a crime that you did not intend to commit?

4. Strict liability • Remember that so far we have discovered that to be found guilty of a crime, the defendant must be shown to have committed to ACTUS REUS with the appropriate MENS REA. • Strict liability is the exception to this rule! • For crimes of strict liability, it is not necessary to prove MENS REA. The defendant will be found guilty if they have committed the ACTUS REUS.

5. Strict liability • Pharmaceutical Society of Great Britain –v- Storkwain Ltd (1986) • A pharmacist was convicted of supplying drugs without a valid prescription under s 58(2) Medicines Act 1968 which states that no one shall supply drugs without a doctor’s prescription. The signature on the prescriptions had been forged although the pharmacist had no knowledge of this. Despite this, even on appeal to the House of Lords, the pharmacist was still found guilty.

6. Strict liability • The defendant must be proved to have committed the ACTUS REUS and in most cases this must be done voluntarily. • However: • Larsonneur (1933) • Defendant was a foreigner (alien) found in England. She was deported to Eire. The Irish police deported her back to England – she had no choice in that decision and her action was not voluntary. She was immediately arrested when she landed in England.

7. Absolute liability • Winzar –v- Chief Constable of Kent (1983) • Winzar was taken to hospital. The doctor diagnosed him as being drunk! He was asked to leave but later was found asleep in one of the corridors. The police were called and he was carried out of the hospital and put on the pavement outside whereupon he was promptly arrested for being found drunk on the highway under the Licensing Act 1872. He was convicted! • These cases create ABSOLUTE LIABILITY. No mens rea is required for such offences and the ACTUS REUS does not need to be voluntary.

8. Strict liability • The starting point for these offences is that there is a presumption that mens rea is always required. • This is for the courts to decide. • Prince (1875) • Hibbert (1869)

9. Strict liability • In the case of Callow –v- Tillstone (1900), the Courts also decided that a defendant can be convicted of an offence where he voluntarily commits the actus reus which subsequently results in a prohibited consequence. • Callow was a butcher who asked a vet to examine a carcass to see if it was fit for human consumption. The vet said it was so he offered it for sale - but it wasn’t!

10. Strict liability • However, in some statutes there is a defence of ‘due diligence’ available for some offences – the defendant can argue that they took all reasonable care to prevent the consequence. • This defence should really have been available in the Callow –v- Tillstone case but it wasn’t. Callow was still convicted. • Harrow London Borough Council -v- Shah & Shah (1999)

11. Strict liability • The defence of mistake is not available for strict liability offences. • Cundy -v- Le Cocq (1884) • But note the different decision in Sherras -v- De Rutzen (1895). • Both involved honest mistakes and the serving of alcohol. In Cundy it was held to be an observable fact that the customer was drunk. In Sherras it was impossible to know whether the constable was on duty or not.

12. Strict liability • The main problem with this area of law is in deciding which offences should be labelled as strict liability. • Remember that the presumption is that mens rea is always required and this is the starting point. • Most strict liability crimes are found in statutes but there are 4 that are found in common law.

13. Strict liability • There are only 4 common law offences which the Courts have decided are strict liability:- • Public nuisance • Criminal libel • Blasphemous libel • Criminal contempt of court • Lemon & Whitehouse -v- Gay News (1979)

14. Strict liability • A large amount of offences created by statutes are designated as strict liability offences by the courts. • Many of these are classed as REGULATORY OFFENCES because they ‘regulate’ various types of behaviour, e.g. speeding and traffic offences regulate the flow of traffic on the roads; food and hygiene regulations regulate the sale of food.

15. Strict liability • Remember the courts start with the presumption that mens rea is required. • B (A Minor) -v- DPP (2000) • Sweet -v- Parsley (1969) • The Courts then look at the wording that Parliament has used in a particular statute to decide whether it should be interpreted as a strict liability offence.

16. Strict liability • The problem with this area of law is that it is largely based on the judge’s interpretation of the wording. Parliament rarely gives any strong indication that an offence should be one of strict liability and mostly the statutes are silent on the issue. • Remember back to AS Law and the issues with statutory interpretation. Can you remember the different rules and what problems they create?

17. Strict liability • Gammon (Hong Kong) Ltd -v- Attorney General of Hong Kong (1984) • The defendants had built a building in Hong Kong, part of which had collapsed. The collapse was found to be a direct result of the builders having deviated from the original plans which was forbidden in Hong Kong law. They were convicted. The penalty was a fine up to $250,000 or 3 years’ imprisonment. On appeal their conviction was upheld.

18. Strict liability • As a result of the Gammon case, the Privy Council restated the fact that the courts should always start with the presumption that mens rea was always required and then move on to 4 tests:- 1. To see if the wording of the statute indicates strict liability 2. To decide if the offence is of a regulatory nature or a ‘true crime’ 3. To see whether the issue involved is an area of social/public concern 4. To see whether enforcing strict liability will promote greater vigilance.

19. Strict liability • 1. The wording of the Statute • If the statute uses the words ‘knowingly’ or ‘intentionally’ then the offence requires mens rea. • Alphacell -v- Woodward (1972) • This involved the word ‘cause’. The factory ‘caused’ pollution to enter the river – no mens rea was required.

20. Strict liability • 2. Regulatory Offences -v- True Crimes • What is the difference between the two? • Generally true crimes are those to which a stigma can be attached, e.g. murder. Regulatory offences, such as speeding have very little, if any, social stigma attached to them. • Sweet -v- Parsley (1969)

21. Strict liability • 3. An issue of social/public concern • This involves the courts looking at the statute involved to decide whether it involves an issue of social concern. • This can result in strict liability being imposed in a wide variety of situations where there may be dangers to public health, safety or morals. • Blake (1997) • Can you think of areas which might be included under this heading?

22. Strict liability • 4. Promoting greater vigilance • The courts need to ask whether imposing strict liability will make the law more effective in promoting its objectives. • Lim Chin Aik -v- The Queen (1963) • Smedleys -v- Breed (1974)

23. Strict liability • Can you think of any problems there might be with imposing strict liability? • Can you think of any advantages there might be with imposing strict liability?

24. Strict liability • Refer to the handout with advantages and disadvantages. • Try to find advantages and disadvantages that you can use to contradict each other in order to create an argument for and against strict liability. • Present your arguments to the whole group.