Strict Liability

Strict Liability and Absolute Liability

A common law principle

There is a common law presumption that ‘mens rea’ (evil intention) or knowledge of
the wrongfulness of the act, is an essential ingredient in every offence’. The general
requirement of mens rea is said to be ‘one of the most fundamental protections in
criminal law’, and it reflects the idea that it is generally neither fair, nor useful, to
subject people to criminal punishment for unintended actions or unforeseen
consequences unless these resulted from an unjustified risk (ie recklessness).
Strict Liability in short is: “Absolute legal responsibility for an injury that can be
imposed on the wrongdoer without proof of carelessness or fault”.
Strict liability, sometimes called absolute liability, is the legal responsibility for
damages, or injury, even if the person found strictly liable was not at fault or
negligent. Strict liability has been applied to certain activities in TORT, such as holding
an employer absolutely liable for the torts of her employees, but today it is most
commonly associated with defectively manufactured products. In addition, for
reasons of public policy, certain activities may be conducted only if the person
conducting them is willing to insure others against the harm that results from the
risks the activities create.
In Product Liability cases involving injuries caused by manufactured goods, strict
liability has had a major impact on litigation since the 1960s. In 1963, in Greenman v.
Yuba Power Products, 59 Cal. 2d 57, 377 P.2d 897, the California Supreme Court
became the first court to adopt strict tort liability for defective products. Injured
plaintiffs have to prove the product caused the harm but do not have to prove exactly
how the manufacturer was careless. Purchasers of the product, as well as injured
guests, bystanders, and others with no direct relationship with the product, may sue
for damages caused by the product.
An injured party must prove that the item was defective, that the defect proximately
caused the injury, and that the defect rendered the product unreasonably dangerous.
A plaintiff may recover damages even if the seller has exercised all possible care in
the preparation and sale of the product.
In tort law strict liability has traditionally been applied for damages caused by
animals. Because animals are not governed by a conscience and possess great
capacity to do mischief if not restrained, those who keep animals have a duty to
restrain them. In most jurisdictions the general rule is that keepers of all animals,
including domesticated ones, are strictly liable for damage resulting from the
Trespass of their animals on the property of another. Owners of dogs and cats,
however, are not liable for their pets' trespasses, unless the owners have been
negligent or unless strict liability is imposed by statute or ordinance.
For purposes of liability for harm other than trespass, the law distinguishes between
domesticated and wild animals. The keeper of domesticated animals, which include
dogs, cats, cattle, sheep, and horses, is strictly liable for the harm they cause only if
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the keeper had actual knowledge that the animal had the particular trait or propensity
that caused the harm. The trait must be a potentially harmful one, and the harm must
correspond to the knowledge. In the case of dogs, however, some jurisdictions have
enacted statutes that impose absolute liability for dog bites without requiring
knowledge of the dog's viciousness.
Keepers of species that are normally considered "wild" in that region are strictly
liable for the harm these pets cause if they escape, whether or not the animal in
question is known to be dangerous. Because such animals are known to revert to
their natural tendencies, they are considered to be wild no matter how well trained or
domesticated.
Strict liability for harm resulting from abnormally dangerous conditions and activities
developed in the late nineteenth century. It will be imposed if the harm results from
the miscarriage of an activity that, though lawful, is unusual, extraordinary,
exceptional, or inappropriate in light of the place and manner in which the activity is
conducted. Common hazardous activities that could result in strict liability include
storing explosives or flammable liquids, blasting, accumulating sewage, and emitting
toxic fumes. Although these activities may be hazardous, they may be appropriate or
normal in one location but not another.
For example, storing explosives in quantity will create an unusual and unacceptable
risk in the midst of a large city but not in a remote rural area. If an explosion occurs
in the remote area, strict liability will be imposed only if the explosives were stored in
an unusual or abnormal way.

In criminal law, strict liability is liability for which mens rea (Latin for "guilty mind")
does not have to be proven in relation to one or more elements comprising the actus
reus (Latin for "guilty act") although intention, recklessness or knowledge may be
required in relation to other elements of the offense. The liability is said to be strict
because defendants will be convicted even though they were genuinely ignorant of
one or more factors that made their acts or omissions criminal. The defendants may
therefore not be culpable in any real way, i.e. there is not even criminal negligence,
the least blameworthy level of mens rea.

Strict liability laws were created in the 19th century to improve working and safety
standards in factories. Needing to prove mens reas on the part of the factory owners
was very difficult and resulted in very few prosecutions. The creation of strict liability
offenses meant that convictions were increased. Common strict liability offenses
today include the selling of alcohol to underage persons.

These laws are applied either in regulatory offenses enforcing social behaviour
where minimal stigma attaches to a person upon conviction, or where society is
concerned with the prevention of harm, and wishes to maximise the deterrent value
of the offense. The imposition of strict liability may operate very unfairly in individual
cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2
ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged
doctor's prescription, but was convicted even though the House of Lords accepted
that the pharmacist was blameless. The justification is that the misuse of drugs is a

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grave social evil and pharmacists should be encouraged to take even unreasonable
care to verify prescriptions before supplying drugs. Similarly, where liability is
imputed or attributed to another through vicarious liability or corporate liability, the
effect of that imputation may be strict liability albeit that, in some cases, the accused
will have a mens rea imputed and so, in theory, will be as culpable as the actual
wrongdoer.

Under the common law the rule is that crimes require proof of mens rea except in
cases of public nuisance, criminal libel, blasphemous libel, and criminal contempt of
court. Where the liability arises under a statute, there has been considerable
inconsistency, with different rules of construction in statutory interpretation producing
varying assessments of the will of Parliament. But, in Sweet v Parsley [1970] AC
132, Lord Reid laid down the following guidelines for all cases where the offense is
criminal as opposed to quasi-criminal:

1. Wherever a section is silent as to mens rea there is a presumption that, in

order to give effect to the will of Parliament, words importing mens rea must
be read into the provision.
2. It is a universal principle that if a penal provision is reasonably capable of two
interpretations, that interpretation which is most favourable to the accused
must be adopted.
3. The fact that other sections of the Act expressly require mens rea is not in
itself sufficient to justify a decision that a section which is silent as to mens rea
creates an absolute offense. It is necessary to go outside the Act and
examine all relevant circumstances in order to establish that this must have
been the intention of Parliament.

Hence, the literal rule is qualified and there is a rebuttable presumption that
Parliament intended a mens rea to be a requirement in any section which creates an
offense where the social stigma following conviction and the punishment available to
be imposed show this to be a truly criminal offense. In Gammon v AG for Hong Kong
(1985) AC 1, Lord Scarman rebutted the presumption because public safety was
threatened. Hence, statutes involving pollution, dangerous drugs, and acting as a
director while disqualified have been interpreted as imposing strict liability. In
Environment Agency (formerly National Rivers Authority) v. Empress Car Co.
(Abertillery) Ltd. (1998) 2 WLR. 350, examples are given of cases in which strict
liability has been imposed for "causing" events which were the immediate
consequence of the deliberate acts of third parties but which the defendant had a
duty to prevent or take reasonable care to prevent. If words like "knowingly" or
"wilfully" appear in the section, the inference is that Parliament intended a mens rea
requirement in that section. But, if words implying a mens rea are present in some
sections but not others, this suggests that Parliament deliberately excluded a mens
rea requirement in those sections which are silent.

In considering offenses created in the Children Act 1960, Lord Hutton in B (a minor)
v DPP (2000) 1 AER 833, states the current position at p855:

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the test is not whether it is a reasonable implication that the statute rules out
mens rea as a constituent part of the crime – the test is whether it is a
necessary implication.

As to the meaning of "necessary implication", Lord Nicholls said

Necessary implication connotes an implication that is compellingly clear. Such

an implication can be found in the language used, the nature of the offense,
the mischief sought to be prevented and any other circumstances which may
assist in determining what intention is properly to be attributed to Parliament
when creating the offense. Necessary implication may arise from not only the
statutory provision under review but also from the rules governing that
provision to be deduced from other provisions.

Thus, the court must examine the overall purpose of the statute. If the intention is to
introduce quasi-criminal offenses, strict liability will be acceptable to give quick
penalties to encourage future compliance, e.g. fixed-penalty parking offenses. But, if
the policy issues involved are sufficiently significant and the punishments more
severe, the test must be whether reading in a mens rea requirement will defeat
Parliament's intention in creating the particular offense, i.e. if defendants might
escape liability too easily by pleading ignorance, this would not address the
"mischief" that Parliament was attempting to remedy.

Sexual Offences Act 2003

In R. v. G. (2005), a 15-year-old boy was convicted of statutory rape of a child under

13, a crime under Section 5 of the Sexual Offences Act 2003. The prosecution
accepted the boy's claim that he had believed the 12-year-old girl to be 15, but he
was nevertheless sentenced to 12 months detention. This was reduced on appeal to
a conditional discharge, but, in a 3-2 decision, the House of Lords declined to
reverse the conviction.

United States

As the federal constitution entrenches a right of due process, the United States
usually applies strict liability to only the most minor crimes or infractions. One
example would be parking violations, where the state only needs to show that the
defendant's vehicle was parked inappropriately at a certain curb. But serious crimes
like rape and murder require some showing of culpability or mens rea. Otherwise,
every accidental death, even during medical treatment in good faith, could become
grounds for a murder prosecution and a prison sentence.

A serious offense in which strict liability tends to show up is in drunk driving laws; the
punishment tends to be given on a strict liability basis, with no mens rea requirement
at all. This was important for the purposes of a U.S. Supreme Court case in 2004,
Leocal v. Ashcroft, where a deportation order was overturned because the conviction
that led to the deportation order was a strict liability law, while deportation was only
allowed upon conviction if the crime was a "crime of violence" (where violence, or the
potential for it, was inherent in the crime itself).

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 Strict Liability
In many states, statutory rape is considered a strict liability offense. In these states,
22 as of 2007, it is possible to face felony charges despite not knowing the age of
the other person, or even if the minor presented identification showing an age of
eighteen or higher. The American Law Institute's Model Penal Code generally
restricts strict liability to minor offenses ("violations").

However, in United States v. Kantor, which concerned underage pornographic

actress Traci Lords, the Ninth Circuit Court of Appeals introduced a "good faith"
defense against crimes in which the victim intentionally tricked the defendants into a
factual mistake thinking that no crime was being committed, which since has been
adopted as precedent throughout the United States.[4] A "good faith" defense
requires showing that the defendant affirmatively had reason to believe that they
were not committing a crime, not simply a lack of knowledge that they were.

Australia

The Australian Criminal Code Act of 1995[5] defines strict liability and absolute liability
in division 6.

Recent work health and safety legislation creates strict liability for WHS offenses.
Also, certain other industrial offenses such as pollution tend to be enacted in terms
of strict liability.[6][7] Most air safety regulations in regards to operators of aircraft and
un-manned rockets are enacted as strict liability offenses.[8]

Canada

Since 1978, Canadian criminal law has recognized a distinction between offenses of
"strict" and "absolute" liability. In R. v. City of Sault Ste-Marie the Supreme Court of
Canada created a two-tiered system of liability for regulatory offenses. Under this
system, the Crown would continue to be relieved from proving the mens rea of the
offense. However, offenses of strict liability would grant the accused a defense of
due diligence – which would continue to be denied in cases of absolute liability.
Further, in the absence of a clear legislative intent to the contrary, the Court held that
all regulatory offences would be presumed to bear strict liability.

Following the enactment of the Canadian Charter of Rights and Freedoms in 1982,
this distinction was upheld in Re B.C. Motor Vehicle Act. The Supreme Court further
held that the inclusion of the possibility of imprisonment − no matter how remote − in
an offense of strict liability violated the accused Section 7 right to liberty.

Germany

In Germany Criminal Strict liability does not exist today, since it is not consistent with
the "nulla poena sine culpa" principle (no punishment without guilt).

Still, there was Criminal Strict liability in the German Reich, e.g. § 18
Wechselstempelgesetz, § 95 Reichsstempelgesetz.

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Absolute liability is a standard of legal liability found in tort and criminal law of
various legal jurisdictions.

To be convicted of an ordinary crime, in certain jurisdictions, a person must not only

have committed a criminal action, but also have had a deliberate intention or guilty
mind (mens rea). In a crime of strict liability (criminal) or absolute liability, a person
could be guilty even if there was no intention to commit a crime. The difference
between strict and absolute liability is whether the defence of a mistake of fact is
available: in a crime of absolute liability, a mistake of fact is not a defence. Strict or
Absolute Liability- also can arise from inherently dangerous activities or defective
products that are likely to result in harm to another, regardless of protection taken.

Absolute liability is one of three types of criminal or regulatory offences.

In R. v. City of Sault Ste-Marie, the Supreme Court of Canada defined an absolute

liability offence as an offence "where it is not open to the accused to exculpate
himself by showing that he was free of fault."

Background:
The city of Sault Ste. Marie, Ontario, hired Cherokee Disposal to dispose of the city's
waste. The city built a disposal site 20 feet from a stream which, when filled by the
disposal company, resulted in waste seeping into the stream. The city was charged
with discharging, or permitting to be discharged, refuse into the public waterways
causing pollution pursuant to section 32(1) of the Ontario Water Resources Act.
The issue before the court was whether the city's offence should be classified as
strict liability or absolute liability. The Court of Appeal for Ontario held that the charge
required proof of mens rea, which on the facts would acquit the defendant.

Reasoning:

In the judgement written by Chief Justice Dickson, the Court recognized three
categories of offences:
1. True Crimes: Offences that require some state of mind (mens rea) as an
element of the crime. These offences are usually implied by the use of
language within the charge such as "knowingly", "willfully", or
"intentionally".
2. Strict Liability: Offences that do not require the proof of mens rea. The
act alone is punishable. The duty is on the accused to have acted as a
reasonable person and has a defence of reasonable mistake of fact (a due
diligence defence). The Court stated that the due diligence defence "will
be available if the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or if he took all
reasonable steps to avoid the particular event. These offences may
properly be called offences of strict liability." The reason for this is that the
Court described a need for a class of offence that had a lower standard to
convict than True Crimes but was not as harsh as Absolute Liability
offences. As opposed to the first category of offences in which the
accused is presumed innoncent, offences of strict liability presses a
presumption of negligence on the accused. The burden of proving that the

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accused acted as a diligent person rests on his shoulders and must be
demonstrated by preponderance of evidence.
3. Absolute Liability: Similar to Strict Liability, these offences do not require
proof of mens rea either. However, the accused has no defences
available.
To distinguish between these types the Court examines:
[t]he overall regulatory pattern adopted by the legislature, the subject matter of
the legislation, the importance of the penalty and the precision of the language
used will be primary considerations in determining whether the offence falls into
the third category.
The Court then noted that the dumping offences were of a public welfare nature and
were from a provincial statute, thus, were Strict Liability offences and do not require
mens rea.

This can be compared to a strict liability offence (where an accused can raise the
defence of due diligence) and mens rea offences (where the prosecutor has to prove
that the accused had some positive state of mind).
Generally, criminal offences are presumed to be mens rea offences, and regulatory
offences are presumed to be strict liability offences. Therefore, most offences are not
absolute liability offences, and usually will require an explicit statement in the statute.

To determine if an offence is an absolute liability offence, the courts must look at:
 The overall regulatory pattern;
 The subject matter of the legislation;
 The importance of the penalty; and
 The precision of the language used in the statute.

In Canada for example, the combination of an absolute liability offence and the
possible sentence of jail violates section 7 of the Canadian Charter of Rights and
Freedoms and is unconstitutional. Specifically, jail violates a person's liberty and an
absolute liability offence is not in accordance with the principles of fundamental
justice.

Negligence is not required to be proven. Example: Owning a pet rattle snake.

Where for example an enterprise is engaged in a hazardous or inherently dangerous

activity and harm results to anyone on account of an accident in the operation of
such hazardous or inherently dangerous activity resulting, for example, in escape of
toxic gas the enterprise is strictly and absolutely liable to compensate all those who
are affected by the accident and such liability is not subject to any of the exceptions
which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands
v. Fletcher.

Rylands v Fletcher [1868] UKHL 1 was a decision by the House of Lords which
established a new area of English tort law. Fletcher employed contractors to build a
reservoir, playing no active role in its construction. When the contractors discovered
a series of old coal shafts improperly filled with debris, they chose to continue work
rather than properly blocking them up. The result was that on 11 December 1860,
shortly after being filled for the first time, Fletcher's reservoir burst and flooded a

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neighbouring mine, run by Rylands, causing £937 worth of damage, equivalent to
£102,768 in 2015 terms. Rylands brought a claim under negligence against Fletcher,
through which the case eventually went to the Exchequer of Pleas. The majority
ruled in favour of Fletcher. Bramwell B, however, dissenting, argued that the
claimant had the right to enjoy his land free of interference from water, and that as a
result the defendant was guilty of trespass and the commissioning of a nuisance.
Bramwell's argument was affirmed, both by the Court of Exchequer Chamber and
the House of Lords, leading to the development of the "Rule in Rylands v Fletcher";
that "the person who for his own purposes brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his peril,
and, if he does not do so, is prima facie answerable for all the damage which is the
natural consequence of its escape". No right "to enjoy property" exists in UK black-
letter law, and it is this decision upon which stare decisis is built in the area.
This doctrine was further developed by English courts, and made an immediate
impact on the law. Prior to Rylands, English courts had not based their decisions in
similar cases on strict liability, and had focused on the intention behind the actions
rather than the nature of the actions themselves. In contrast, Rylands imposed strict
liability on those found detrimental in such a fashion without having to prove a duty of
care or negligence, which brought the law into line with that relating to public
reservoirs and marked a significant doctrinal shift. Academics have criticised it,
however, both for the economic damage such a doctrine could cause and for its
limited applicability.
The tort of Rylands v Fletcher has been disclaimed in various jurisdictions, including
Scotland, where it was described as "a heresy that ought to be extirpated", and
Australia, where the High Court chose to destroy the doctrine in Burnie Port Authority
v General Jones Pty Ltd. Within England and Wales, however, Rylands remains
valid law, although the decisions in Cambridge Water Co Ltd v Eastern Counties
Leather plc and Transco plc v Stockport Metropolitan Borough Council make it clear
that it is no longer an independent tort, but instead a sub-tort of nuisance.
Cases of Strict and Absolute Liability

Some criminal offences, however, do not require proof of fault—these are described
as strict liability and absolute liability offences.
Criminal offences are generally characterised in one of three ways:
· mens rea offences—the prosecution must prove a physical element (actus reus)
and a mental element (mens rea);
· strict liability offences—the prosecution is not required to prove fault, but there is a
defence of reasonable mistake available; and
· absolute liability offences—proof of fault is not required and no defences are
available.

Re B.C. Motor Vehicle Act.

Section 94(2) of the Motor Vehicle Act of British Columbia created an absolute
liability offence of driving while with a suspended licence. To obtain a conviction, the
Crown needed only to establish proof of driving regardless of whether the driver was
aware of the suspension. A successful conviction carried a prison term of a minimum
of seven days.
The British Columbia Court of Appeal held that the Act violated a principle of
fundamental justice under section 7 of the Charter.

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Lamer J, held that an absolute liability, which makes a person liable for an offence
whether he or she took steps not to be at fault, violates the principles of fundamental
justice. Therefore, any possibility of a deprivation of life, liberty or security of person
from an absolute liability offence offends the Charter. A law that violates section 7
cannot be saved by section 1 of the Charter except for extreme circumstances (for
example, natural disasters, outbreaks of war, epidemics). The principles of
fundamental justice impose a stricter test than section 1.
Thus, any law that violates the principles of fundamental justice will most likely not
be saved by section 1.

R v Prince (1875) LR 2 CCR 154.

The defendant ran off with an under-age girl. He was charged with an offence of
taking a girl under the age of 16 out of the possession of her parents contrary to s55
of the Offences Against the Person Act 1861 (now s20 of the Sexual Offences Act
1956). The defendant knew that the girl was in the custody of her father but he
believed on reasonable grounds that the girl was aged 18. It was held that
knowledge that the girl was under the age of 16 was not required in order to
establish the offence. It was sufficient to show that the defendant intended to take
the girl out of the possession of her father.

R v Hibbert (1869) LR 1 CCR 184.

The defendant met a girl under sixteen years of age in a street, and induced her to
go with him to a place at some distance, where he seduced her, and detained her for
some hours. He then took her back to where he met her and she returned home to
her father. The defendant was charged under s55 OAPA 1861. It was held that in the
absence of any evidence that the defendant knew, or had reason for knowing, or that
he believed, that the girl was under the care of her father at the time, that a
conviction under s55 OAPA 1861 could not be sustained.

GENERAL PRINCIPLES/THE MODERN CRITERIA

R v Blake (1996) The Times, 14 August.

Investigation officers heard an unlicensed radio station broadcast and traced it to a
flat where the defendant was discovered alone standing in front of the record decks,
still playing music and wearing a set of headphones. Though the defendant admitted
that he knew he was using the equipment, he claimed that he believed he was
making demonstration tapes and did not know he was transmitting. The defendant
was convicted of using wireless telegraphy equipment without a licence, contrary to
s1(1) Wireless Telegraphy Act 1949 and appealed on the basis that the offence
required mens rea.
The Court of Appeal held that the offence was an absolute (actually a strict) liability
offence. The Court applied Lord Scarman's principles in Gammon and found that,
though the presumption in favour of mens rea was strong because the offence
carried a sentence of imprisonment and was, therefore, "truly criminal", yet the
offence dealt with issues of serious social concern in the interests of public safety
(namely, frequent unlicensed broadcasts on frequencies used by emergency
services) and the imposition of strict liability encouraged greater vigilance in setting
up careful checks to avoid committing the offence.

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NOTE: The court seems to have been inconsistent in its use of terminology in the
present case. The offence is one of strict liability as the defendant had to be shown
to have known that he was using the equipment.

Sweet v Parsley [1970] AC 132.

The defendant was a landlady of a house let to tenants. She retained one room in
the house for herself and visited occasionally to collect the rent and letters. While
she was absent the police searched the house and found cannabis. The defendant
was convicted under s5 of the Dangerous Drugs Act 1965 (now replaced), of "being
concerned in the management of premises used for the smoking of cannabis". She
appealed alleging that she had no knowledge of the circumstances and indeed could
not expect reasonably to have had such knowledge.
The House of Lords, quashing her conviction, held that it had to be proved that the
defendant had intended the house to be used for drug-taking, since the statute in
question created a serious, or "truly criminal" offence, conviction for which would
have grave consequences for the defendant. Lord Reid stated that "a stigma still
attaches to any person convicted of a truly criminal offence, and the more serious or
more disgraceful the offence the greater the stigma". And equally important, "the
press in this country are vigilant to expose injustice, and every manifestly unjust
conviction made known to the public tends to injure the body politic [people of a
nation] by undermining public confidence in the justice of the law and of its
administration."
Lord Reid went on to point out that in any event it was impractical to impose absolute
liability for an offence of this nature, as those who were responsible for letting
properties could not possibly be expected to know everything that their tenants were
doing.

Cundy v Le Cocq (1884) 13 QBD 207.

The defendant was convicted of unlawfully selling alcohol to an intoxicated person,
contrary to s13 of the Licensing Act 1872. On appeal, the defendant contended that
he had been unaware of the customer's drunkenness and thus should be acquitted.
The Divisional Court interpreted s13 as creating an offence of strict liability since it
was itself silent as to mens rea, whereas other offences under the same Act
expressly required proof of knowledge on the part of the defendant. It was held that it
was not necessary to consider whether the defendant knew, or had means of
knowing, or could with ordinary care have detected that the person served was
drunk. If he served a drink to a person who was in fact drunk, he was guilty. Stephen
J stated:
Here, as I have already pointed out, the object of this part of the Act is to prevent the
sale of intoxicating liquor to drunken persons, and it is perfectly natural to carry that
out by throwing on the publican the responsibility of determining whether the person
supplied comes within that category.

Sherras v De Rutzen [1895] 1 QB 918.

The defendant was convicted of selling alcohol to a police officer whilst on duty,
contrary to s16(2) of the Licensing Act 1872. He had reasonably believed the
constable to be off duty as he had removed his arm-band, which was the
acknowledged method of signifying off duty. The Divisional Court held that the
conviction should be quashed, despite the absence from s16(2) of any words
requiring proof of mens rea as an element of the offence. Wright J expressed the
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view that the presumption in favour of mens rea would only be displaced by the
wording of the statute itself, or its subject matter. In this case the latter factor was
significant, in that no amount of reasonable care by the defendant would have
prevented the offence from being committed. Wright J stated:
"It is plain that if guilty knowledge is not necessary, no care on the part of the
publican could save him from a conviction under section 16, subsection (2), since it
would be as easy for the constable to deny that he was on duty when asked, or to
produce a forged permission from his superior officer, as to remove his armlet before
entering the public house. I am, therefore, of opinion that this conviction ought to be
quashed."

Lim Chin Aik v R [1963] AC 160.

The defendant had been convicted of contravening an order prohibiting in absolute
terms, his entry into Singapore, despite his ignorance of the order's existence. In
allowing the defendant's appeal, Lord Evershed expressed the view that the
imposition of strict liability could only really be justified where it would actually
succeed in placing the onus to comply with the law on the defendant. If the
defendant is unaware that he has been made the subject of an order prohibiting him
from entering a country, the imposition of strict liability should he transgress the
order would not in anyway promote its observance. Lord Evershed stated:
"But it is not enough in their Lordship's opinion merely to label the statute as one
dealing with a grave social evil and from that to infer that strict liability was intended.
It is pertinent also to inquire whether putting the defendant under strict liability will
assist in the enforcement of the regulations. That means that there must be
something he can do, directly or indirectly, by supervision or inspection, by
improvement of his business methods or by exhorting those whom he may be
expected to influence or control, which will promote the observance of the
regulations. Unless this is so, there is no reason in penalising him, and it cannot be
inferred that the legislature imposed strict liability merely in order to find a luckless
victim."

MODERN EXAMPLES

Warner v MPC [1969] 2 AC 256.

The defendant, who was a floor-layer by occupation, sold scent as a side-line. He
went to a café and asked if anything had been left for him. He was given two boxes,
one containing perfume and the other 20,000 tablets of drugs. He was charged with
being in possession of a prohibited drug contrary to s1 of the Drugs (Prevention of
Misuse) Act 1964 (now replaced). He said he thought they both contained perfume.
In the House of Lords, Lord Morris held that the defendant being in physical control
of the package and its contents either: (a) with his consent thereto knowing that it
had contents, or (b) with knowledge that the package was in his control, his
possession of the tablets was established for the purposes of s1, whether or not the
defendant realised that he was in possession of a prohibited drug.
Lord Reid held that the strong inference that possession of a package by an accused
was possession of its contents could be rebutted by raising real doubt either (a)
whether the accused (if a servant) had both no right to open the package and no
reason to suspect that the contents of the package were illicit, or (b) that (if the
accused were the owner of the package) he had no knowledge of, or was genuinely
mistaken as to, the actual contents or their illicit nature and received them
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 Strict Liability
innocently, and also that he had no reasonable opportunity since receiving the
package to acquaint himself with its contents.
Note: a limited defence now exists under the Misuse of Drugs Act 1971. Section 5
creates the offence of possessing a controlled drug, but s28 goes on to provide that
a defendant should be acquitted if he can show that he did not know or suspect, and
could not reasonably have known or suspected, that the substance was a prohibited
drug.

Alphacell Ltd v Woodward [1972] AC 824.

The defendants were charged with causing polluted matter to enter a river contrary
to s2 of the Rivers (Prevention of Pollution) Act 1951. The river had in fact been
polluted because a pipe connected to the defendant's factory had been blocked, and
the defendants had not been negligent. The House of Lords nevertheless held that
the defendants were liable. Lord Salmon stated:
If this appeal succeeded and it were held to be the law that no conviction be
obtained under the 1951 Act unless the prosecution could discharge the often
impossible onus of proving that the pollution was caused intentionally or negligently,
a great deal of pollution would go unpunished and undeterred to the relief of many
riparian factory owners. As a result, many rivers which are now filthy would become
filthier still and many rivers which are now clean would lose their cleanliness. The
legislature no doubt recognised that as a matter of public policy this would be most
unfortunate. Hence s2(1)(a) which encourages riparian factory owners not only to
take reasonable steps to prevent pollution but to do everything possible to ensure
that they do not cause it.

Smedleys Ltd v Breed [1974] AC 839.

Four tins of peas, out of three-and-a-half million tins, produced by the defendants
had contained caterpillars. The defendant company was convicted of "selling food
not of the substance demanded by the purchaser" contrary to s2(1) of the Food and
Drugs Act 1955 (now replaced). They contended that the presence of the caterpillar
in the tin was an unavoidable consequence of the process of collection or
preparation and that they therefore had a defence under s3(3) of the 1955 Act. They
also claimed that they had taken all reasonable care.
It was held by the House of Lords that in order to establish a defence under s3(3) it
was necessary to show that the presence of the extraneous matter was a
consequence of the process of collection or preparation of the food and that that
consequence could not have been avoided by any human agency; it was not
sufficient for the defendant to show that he had taken all reasonable care to avoid
the presence of the extraneous matter.
Even if it were accepted that the presence of the caterpillar was a consequence of
the process of collection or preparation rather than something which had occurred
despite those processes, the defendants were not entitled to rely on s3(3) since the
caterpillar could have been removed from the peas during the process of collection
or preparation and its presence could thereby have been avoided.
Note: the offence is now contained in the Food Safety Act 1990. Under s21 of the
1990 Act, a defendant has a defence if he proves that he took all reasonable
precautions and exercised all due diligence to avoid the commission of the offence
by himself or a person under his control.

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