The standard common law test of criminal liability is usually expressed in terms of Edward Coke’s statement ‘actus non facit reum nisi mens sit rea’ which means that ‘the act does not make a person guilty unless their mind is also guilty. There must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged. However, the exceptions to this standard are strict liability crimes.
In the case of Gammon (Hong Kong) Ltd v AG [1985] the court outlined four guidelines for other courts to use to decide whether or not the crime in question is a strict liability crime:
1. The Crime is a Regulatory Offence
This is typically a crime where no moral issue is involved and the maximum penalty is usually small. In Sweet v Parsley [1970] Lord Reid stated that a crime to which a social stigma is attached should need mens rea to be proved.
The must common types of regulatory offences are rules on hygiene and measurement in the food industry and regulations to stop industry polluting the environment.
2. The Statute Containing the Offence Deals with an Issue of Social Concern
This involves issues such as public safety and is in place to force people to take extra precautions against committing the act. This covers behaviour which involves danger to the public but which would not usually carry the same kind of social stigma as a crime like murder or theft. Such offences are similar to regulatory offences but they may carry severe maximum penalties.
3. The Wording of the Act
A statute may be interpreted as creating a strict liability offence. There is no definitive example of what form the words must take but certain words, such as ‘cause’ and ‘possession’, have been consistently interpreted by the courts as resulting in strict liability crimes.
4. Smallness of the Penalty
Strict liability is often imposed for offences which carry a small maximum penalty. The higher the maximum penalty, the less likely it is that the courts will impose strict liability. However, the penalties can sometimes be high.
Advantages of Strict Liability
- Promotion of care – it protects the public from dangerous practises.
- Deterrent – offenders obey the law because they know prosecution leads to an automatic conviction.
- Easier enforcement – court time is saved when mens rea need not be proved.
- Difficulty of proving mens rea – mens rea can be difficult to prove so without strict liability guilty people may avoid conviction.
- No threat to liberty – punishment is usually a fine.
Disadvantages of Strict Liability
- Injustice – is it really fair for a person to be blamed even if they took all reasonable steps to avoid the problem?
- Ineffectiveness – there is no deterrent if the guilty party is not caught.
- Little administrative advantage – not much time is saved since the court still needs to hear the whole of the case.
- Inconsistent application – there is a lack of certainly due to the reliance on statutory interpretation.
Sources:
Herring, J. (2008) Criminal Law: Text, Cases and Materials (Oxford: OUP)
Elliott, K. & Quinn, F. (2008) Criminal Law (Longman)
Allen, M. (2007) Textbook on Criminal Law (Oxford: OUP)
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