Strict Liability Lecture Notes 1
Offences of strict liability are those crimes which do not require mens rea with regard to at least one or more elements of the actus reus. The defendant need not have intended or known about that circumstance or consequence. Liability is said to be strict with regard to that element. For a good example see:
R v Hibbert (1869) LR 1 CCR 184.
It is only in extreme and rare cases where no mens rea is required for liability, thereby making the particular offence "absolute". For example see: R v Larsonneur (1933) and Winzar (1983).
The vast majority of strict liability crimes are statutory offences. However, statutes do not state explicitly that a particular offence is one of strict liability. Where a statute uses terms such as "knowingly" or "recklessly" then the offence being created is one that requires mens rea. Alternatively, it may make it clear that an offence of strict liability is being created. In many cases it will be a matter for the courts to interpret the statute and decide whether mens rea is required or not.
What factors are taken into account by the courts when assessing whether or not an offence falls into the category of strict liability offences?
THE MODERN CRITERIA
In Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong, the Privy Council considered the scope and role of strict liability offences in the modern criminal law and their effect upon the "presumption of mens rea". Lord Scarman laid down the criteria upon which a court should decide whether or not it is appropriate to impose strict liability:
(1) PRESUMPTION OF MENS REACourts usually begin with the presumption in favour of mens rea, commonly the well-known statement by Wright J in Sherras v De Rutzen:
(2) GRAVITY OF PUNISHMENTAs a general rule, the more serious the criminal offence created by statute, the less likely the courts are to view it as an offence of strict liability.
(3) WORDING OF THE STATUTEIn determining whether the presumption in favour of mens rea is to be displaced, the courts are required to have reference to the whole statute in which the offence appears. See:
Cundy v Le Cocq (1884) 13 QBD 207.
(4) ISSUES OF SOCIAL CONCERNSee the comments in:
Gammon (1985) and R v Blake (1996), above.
(5) IS THERE ANY PURPOSE IN IMPOSING STRICT LIABILITY?The courts will be reluctant to construe a statute as imposing strict liability upon a defendant, where there is evidence to suggest that despite his having taken all reasonable steps, he cannot avoid the commission of an offence.
CLASSIFICATION OF STRICT LIABILITY OFFENCES
In Sherras v De Rutzen (1895), Wright J stated that apart from isolated and extreme cases like bigamy and abduction of a girl under sixteen, the principal classes of strict liability may perhaps be reduced to three:
1. One is a class of acts which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty (eg, the sale of adulterated food: Roberts v Egerton, 1874).
2. Another class comprehends some, and perhaps all, public nuisances: R v Stephens (1866) where the employer was held liable on indictment for a nuisance caused by workmen without his knowledge and contrary to his orders.
3. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right (eg, see Hargreaves v Diddams (1875) as to a bona fide belief in a legally impossible right to fish).
But, except in such cases as these, there must in general be guilty knowledge on the part of the defendant, or of someone whom he has put in his place to act for him, generally, or in the particular matter, in order to constitute an offence.