LB2303 - Criminal Law 1

Lecture 4 - Strict Liability

Introduction
General Rule : To convict a person of a criminal liability requires action (actus reus)
and intention (mens rea)

Exception : Strict Liability

Strict Liability
Crimes that can be committed without the presence of intention (mens rea). One of
the example of strict liability offence is public nuisance.

Gammon (Hong Kong) Ltd v Attorney-General [1985]

The defendant were involved in building works in Hong Kong. Part of the building
they were constructing fell down due to the builders failed to follow the original plan
exactly. The Hong Kong building regulations prohibited deviating from the original
plans, hence the defendants were charged with breaching the regulations. The appeal
that they did not know and should not be liable. However, the court held the relevant
regulations created offence of strict liability. Hence, the defendants were liable.

Public Prosecutor v Osman bin Apo Hamid [1978]

The respondents were found guilty carrying bags containing rice in the exceeded
amount specified in their permit. The defendants admitted to having knowledge of the
fact that they were transporting 130 bags of rice but they denied having any
knowledge as to the permitted quantity in their permit. The court considered strict
liability offense has no mens rea, hence they were guilty.
Court Approach to Strict Liability
The approaches used by the court :

1. The wording of the Act

Presumption that mens rea is required for a criminal offence can be rebutted if the
words of a statute suggest that strict liability is intended.

a) Cause
Alphacell v Woodward [1972]
A company, the defendant, were accused of causing polluted matter to enter a river.
They were using equipment designed to prevent any overflow into the river but when
the mechanism became clogged by leaves the pollution was able to escape. It was
held that the company had ‘caused’ the pollution to enter water and their conviction
was upheld.

The HOL stated there were statutes create an offence of causing something to happen,
the court should adopt common-sense approach- if reasonable people would say that
the defendant has caused something to happen, regardless of whether he or she knew
what he or she was doing, then no mens rea is required.

b) Possession
It is being in possession of a prohibited items.

John Piet Van Putten v PP [1965-1986]

The appellant had a forged permit endorsed in his passport which contrary to the law.
The appellant stated that he had no knowledge that the permit had been forged, since
the permit had been obtained for him by his employers. The court considered whether
the action falls under strict liability offence. It was held that the defendant had control
of the passport containing the forgery and such action danger the community. Hence
liable.
 Mohamed Ibrahim v Public Prosecutor [1963]
The appellant were convicted for the possession and for the purpose of sale 65 copies
of the book ‘Tropic of Cancer’ which is immoral material. He appealed on the ground
he could not read nor write in English, hence he did not know the content was
immoral. The court held it was a strict liability offence.

Public Prosecutor v Teo Kwang Kiang [1991]

The person who was in possession of food unfit for human consumption but had no
knowledge that the food was contaminated. The court concerned with the public
safety due to the harm for human consumption. It was held that the imposition of
strict liability in this case necessary, thus the defendants were liable.

R v Prince [1875]
The appellant was charged with taking an unmarried girl under the age of 16 out of
the possession of her father contrary to the law. He knew the girl was in the custody
of her father but believed that the girl was aged 18. The court held that it was a strict
liability offence.

c) Knowledge
The use of word tells the court that mens rea is required, and that it underline the fact
that the presumption should be applied.
2. Regulatory Offence
Sweet v Parsley [1970]
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 s.5(6) of the Dangerous Drugs Act 1965. The statute
did not state any requirement of mens rea of the offence. The House of Lords looked
at the common law before the statute was made. The common law required
knowledge of the activities in order to impose liability. Thus the presumption that
statutes do not change the common law was applied in addition to the presumption
that mens rea is required where the offence is a true crime as oppose to a regulatory
offence. Therefore, Ms Sweet was not liable.

Pharmaceutical Society of Great Britain v Storkwain Ltd [1986]

The appellant, a pharmacist was convicted of an offence under s.58(2) of the
Medicines Act 1968 of supplying prescription drugs without a prescription given by
an appropriate medical practitioner. The appellant had allowed prescription drugs to
be supplied on production of fraudulent prescriptions whereby a doctor’s signature
had been copied. The appellant was not party to the fraud and had no knowledge of
the forged signatures and believed the prescriptions were genuine. It was held that the
offence was one of strict liability and the conviction was upheld. The House of Lords
looked at other sections of the Medicines Act 1968 and found that some sections
referred to a requirement of mens rea whereas other sections did not. They concluded
that the omission to refer to mens rea in s.58 must therefore have been deliberate and
so the presumption of mens rea was rebutted.
3. Issue of Social Concern
It covers the behavior which could involve the danger to the public. It is an issue
which concerned with an issue of social behavior, for instance, public safety. The
presumption in favor of mens rea can be rebutted.

Harrow London Borough Council v Shah [1999]

The offence of selling National Lottery tickets to a person under the age of 16 was
found to be an offence of a strict liability. The court justified this by stating that the
legislation dealt with an issue of social concern.

R v Blake [1997]
The defendant was accused of making broadcasts on a pirate radio station and was
convicted of using wireless telegraphy equipment without a license, contrary to the
law. It was held that the conviction was upheld as strict liability offence as it was in
the interest of public safety, given the interference with the operation of the
emergency services that could result from unauthorized broadcasting.

R v Howells [1977]
The defendant was convicted for failing to obtain a firearm’s certificate despite the
fact that he believed his gun was just an antique. This offered the public protection
against unlawful weapons.
Justifications of Strict Liability
Justifications
Promotion of Care
Deterrent Value
Easier Enforcement
Difficulty of Proving Mens Rea
No Threat to Liberty
Profit from Risk
Descriptions
SL protects the public from dangerous practices.
Barbara Wootton, a social scientist :
Defended SL on this basis, suggesting that if the
objectives of Criminal Law is to prevent socially
damaging activities, it would be absurd to turn a
blind eye to those who cause the harm due to
carelessness, negligence or an accident.
SL has strong deterrent, which is important for the
regulatory offence tend to be dealt with. It allows
enforcement agencies to strengthen their
bargaining position, since potential offenders know
that if a prosecution is brought, there is a very good
chance of conviction.
It makes enforcing offence easier; In Gammon, the
Privy Council suggested that if the prosecution had
to prove mens rea in even the smallest regulatory
offence, the admiration of justice might even
quickly come to a complete standstill.
Mens rea may be difficult to be proved in most
cases, without SL guilty people may escape
conviction.
In many SL cases, the defendant is a business and
the penalty is a fine. So individual liberty is not
generally under threat, The fines are often small.
An offence is concerned with business, those who
commit it may well be saving themselves money
and thereby making extra profit by doing so-by. If
a person create a risk and make profit by doing so,
he would be liable if it causes harm even without
intention.
Criticisms of Strict Liability
Criticisms Descriptions

Injustice It is unjust on a variety of different grounds. For

example, it is injustice that someone who has taken
reasonable care and could not possibly avoided
committing an offence, should be punished by the
criminal law.
Ineffective The deterrent value of SL may be overestimated.
The important deterrent factor may not be the
chances of being convicted, but being caught and
charged. Rather than ensuring high standard of
care, SL may have quite the opposite effect:
Knowing that there is possibility for conviction
despite taking reasonable precaution may reduce
the incentive to take such precaution, rather than
increasing it.
Little Administrative It may be difficult to determine the sentencing as it
Advantage cannot be done fairly without taking the degree of
negligence into account, so evidence of the accused
state of mind must be available.
Inconsistent Application Whether SL is imposed or not rests on the
imprecise of science of statutory interpretation
means that there are discrepancies in both the
offence to which it is applied and what it actually
means. The court is also inconsistent with imposing
or not on SL.
Reforms of Strict Liability
This aims for strict liability to be less unjust and more effective in preventing harm,
such as better inspection of business premises and imposition of liability for
negligence. This includes :

Reforms Description

Restriction to Public Danger Be more justified if tighter liability were balanced

Offence
Liability for Negligence
Defence of All Due Care
Extending Strict Liability
by real danger to public in the offence
It should be replaced by liability for negligence.
This would catch defendants who were simply
thoughtless or inefficient, as well as those who
deliberately broke the law but would not punish
people who were genuinely blameless.
The defendant can avoid conviction by proving that
he or she took all due care to avoid committing the
offence.
SL imposed on all crimes, mens rea is only be
relevant for sentencing purposes.