CRIMINAL LAW I
LECTURE NOTES – STRICT LIABILITY
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INTRODUCTION
It is a general principle of criminal law that an act does not make a person guilty unless his mind be also guilty - “Actus non facit reum nisis mens sit rea”
This idea is based on the fact that where a person lacks the requisite mental element in many cases it would be wholly unfair to find that person guilty of an offence. For example, the person who is walking in a supermarket and a pack of biscuits unknowing falls into his or her pocket – no one can argue that to finding that person guilty of theft would be unfair. This is especially so as the prosecution for crimes is normally accompanied by heavy fines, taking away a person’s liberty and/or a certain negative social stigma.
Notwithstanding the above, in criminal law there are certain crimes which do not require the proof of mens rea – these are referred to as “strict liability” crimes. Strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence.
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.
These offences are often created by statute (as at common law historically there were few such offences, that is public nuisance and criminal libel and parts of contempt of court) and are generally said to be regulatory in nature as they are created to regulate behaviour (often important health and safety concerns), also there is no real moral issue and usually less stigma attached to the offence.
Some of the characteristics of these offences are therefore that they are:
1. usually regulatory in nature 2. May be committed by corporations 3. Usually punishably by a fine 4. Generally serves as a deterrent and
5. Helps to promote high standards of care in areas of public concern.
There is much criticism however in English Law regarding these offences as the criminal Law generally only punishes offenders that are “responsible” for their actions. It is therefore noted to have operated unfairly in certain cases as, under strict liability, persons can be held criminally liable even though they took reasonable care to prevent the harm occurring. In many instances, persons are therefore required to take unreasonable steps to prevent the result.
An example of statute creating a strict liability offence which operated in such a way is in England, that is, the Medicines Act 1968. Sec. 58(2) of that Act provided that no person shall sell by retail specified medicinal products except in accordance with a prescription given by an appropriate medical practitioner. See Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635 below.
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. They were no findings that the defendant acted dishonestly, improperly or even negligently. So far as it appeared the forgery was sufficient to decieve the pharmacist without any shortcoming on his part.
The House of Lords found that the pharmacist had been rightly convicted. The Court cited the following principles stated by Lord Scarman in the case of Gammon (Hong King) Limited v A-G of Hong Kong[1984] 2 All ER 503:
In that case Lord Scarman stated:
(i) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(ii) the presumption is particularly strong when the offence is “truly criminal” in character;
(iii) the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(iv) the only situation in which the presumption can be displaced is where the statute is concerned with the issue of social concern; public safety is an issue;
(v) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
The justification here is that the misuse of drugs is a grave social evil and pharmacists should be encouraged to take even unreasonable care to verify prescriptions before supplying drugs.
Note the facts of Gammons which are as follows:
The D’s here were involved in building works in Hong Kong, when part of a building they were constructing fell down. It was found that the collapse had occurred because the builders had failed to follow the original plans exactly. Hong Kong building regulations prohibited diverting in any substantial way from the plans.
On appeal against conviction, the D’s argued that they were not liable because they had not known that the changes they had made were substantial ones. However, the court held that the relevant regulations created the offences of strict liability and the convictions were upheld.
It was confirmed here that although there is a presumption of law that mens rea is required before a person can be found guilty of a criminal offence, this presumption could be displaced by strict liability offences.
The PC here admitted that the fact that the offence was punishable with a fine of
$250,000 and imprisonment for 3 years was “a formidable point” but found that “there is nothing inconsistent with the purpose of the ordinance in imposing severe penalties for offences of Strict Liability.”
Also note the earlier case of : Sweet v Parsley [1970] AC 132.
In that case, D was a landlady who did not live on the premises and only visited occasionally. Her lodgers smoked cannabis and she was charged with being concerned in the management of the premises which were used for the purpose of smoking cannabis. It was not proved that she knew of the smoking.
The HL quashed the conviction and said it was not an offence of strict liability because knowledge of the use of the premises was essential to the offence and since she had no such knowledge, she did not commit the offence.
Here Lord Reid laid down the following guidelines for all cases where the offence 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. To convict, guilty mind is required.
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. Implied: Where a case can be considered truly criminal so that the stigma attached to it is great- the greater the likelihood that a sense of blameworthiness or mens rea is required and the lesser the likelihood that Parliament intended to create a strict liability offence.
STATUTORY INTERPRETATION
The fact that most cases of strict liability are found in statutes leads to the need for statutory interpretation to interpret whether Parliament intended the offence to be a strict liability offence or not as the Courts in all instances are expected to give effect to the will of Parliament as expressed in the statues. In light of this, the principles of statutory interpretation operate and the Courts are supposed to try to discover the intention of Parliament from the wording of the statute.
One principle of statutory interpretation as noted in the case of Gammon (Hong King) Limited v A-G of Hong Kong[1984] 2 All ER 503 aforesaid is that in statues creating criminal offences there is a presumption that mens rea will be required even where it is not specifically mentioned.
Note however this presumption is just that - a presumption and as such it is rebuttable in certain circumstances. Below are some of the instances where a court may hold that the presumption has been successfully rebutted.
(i) The wording of the Act. – where the words “permitted” or “allowed” are used, for example, where it is an offence to permit or cause another to do a certain act, the prosecution will normally be expected to prove that the accused was aware of the circumstances which made the act unlawful or that he deliberately avoided finding out. For example: if it is an offence to permit or allow another to drive a motor vehicle with defective brakes, the prosecution would have to prove that the accused knew that his vehicle brakes were defective before he could be said to have permitted or allowed the other to drive a motor vehicle with defective brakes: See James & Son Ltd v Smee.
On the other hand where a statute makes it an offence to drive or use a vehicle with defective brakes the courts have tended to say that the prosecution need not prove that the driver or user knew that the brakes were defective: Green v Burnett
(ii) Where the word “cause” is used so that it is an offence to cause something to happen, the House of Lord have held in the case of Alphacell v Woodard (1972) that the Courts should adopt a commonsense approach - of reasonable people could say that the accused has “caused” something to happen
Alphacell v Woodard(1972)
The D’s were a company accused of causing polluted matter to enter a river. They were using equipment to prevent any overflow into the river, but when the mechanism became
clogged with leaves the pollution was able to escape. There was no evidence that the D’s had been negligent, or even knew that the pollution was leaking out.
However the H of L held that in the normal meaning of the word, the company had
“caused” the pollution to enter the water and their conviction was upheld though had taken reasonable care to prevent the result from occurring.
(iii) Where the word “possession” has been used:
The word possession has caused much difficulty as it relates to the interpretation of statutes and the hardship occasioned by strict liability has led courts to hold that in some instances the word “possession” has both a physical aspect as well as a mental aspect, so that not only must you be in physical possession, you must know that you are in physical possession.
What is clear from case law is that where a person does not know that he is in possession of a drug, for example: the drugs may have been slipped into his/her pocket unbeknownst to him/her he/she is not thought to be in possession of the drugs: Warner v Metropolitan Police Commissioner (1968).
Notably however the mental element does not require that you know the exact nature of the drugs in your possession. It just means that you must be aware that you are in possession of the drugs.
For example: if you are knowingly in possession of some tablets which you think are panadol but are in fact compressed cocaine tablets you will be convicted of being in possession of that drug. Unless the controlling legislation speaks to :knowingly being in possession” or unless one of the defences provided for under the act would be mistake of fact, then you would be properly convicted under the act which prohibits possession of a substance, notwithstanding that you did not know the exact nature of the drug you had in your possession.
Note: Container cases:
Where however the drugs are given to you in a container, and you are mistaken as to the nature (category) and not the quality (features) of the drugs and have had no opportunity to examine the contents of the container then you would not be deemed to be in possession of the drugs. For example, if someone gave you the drugs in a container and you thought it was a reel of film, you did not get a chance to examine it and it you were caught with it, then it would be a mistake of nature and you would not be found to be in possession of the drugs. Where however you thought it was aspirin but it turned out to be heroin, it would be a mistake of quality and you would be held liable for possession of the act notwithstanding that you were unaware of the illegality of the substance, as this would be a mistake in quality, you knew that you were in possession of a drug . ment
The case of Warner v Metropolitan Police Commissioner [1968] 2 All ER 356, is most instructive on this point.
In that case, the defendant was stopped by the police when found with 2 boxes. One of the boxes contained scent, and the other contained 20,000 tablets containing amphetamine sulphate, a prohibited drug under the Drugs (Prevention of Misuse) Act 1964. The defendant claimed that he thought that both boxes contained scent. He was found guilty, and was sentenced to two years’ imprisonment.
In that case, Lord Pearce noted:
“I think that the term “possession” is satisfied by a knowledge only of the of the thing itself and not its qualities, and that ignorance or mistake as to its quality is not an excuse. This would comply with the general meaning of the word “posess.”Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets.
This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when difference in quality amounts to difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty.”
Note the full judgment of Lord Pearce in the aforesaid case of Warner v Metropolitan Police Commissioner (1968)
It is submitted that this distinction is a fanciful invention of judges, as where a statute speaks to the word “possession” opposed to “willfully being in possession” then knowledge of the nature and quality of the drug should be irrelevant. Notwithstanding the aforesaid submission, it is clear that this distinction has been made to help mitigate the often harsh results of the application of strict liability.
Where however drugs are not kept in containers it would appear as though stricter provisions apply. See case of Marriot [1971] 1 All ER 595
(iv) Where the word “knowingly” is used. – Courts have interpreted sections of an Act to be strict liability section where the word “knowingly” appears in one section of the Act and not another or in some but not all subsections of a given section. Where this happens there is the presumption that the absence of the word “knowingly” imposes a strict liability offence. Note however it is merely a presumption.
(v) Where the word ‘willfully’ and ‘maliciously’ is used it connotes the need for some kind of mental element and as such rules out the offence as a strict liability offence.
Note, there is no sure way to determine if a statue has imposed strict liability, it is a matter of interpretation for the courts.
Looking at Strict Liability in its Social Context.
(i) Whether the offence is ‘truly criminal’ in character versus of course a purely regulatory one or a “quasi-crime” here the court often looks at how the offence is view in the public’s eye – that is the level of stigma attached. The greater the stigma attached, the less likely the courts will interpret the section as a strict liability section.
(ii) Whether the prohibition is general or special? That is, whether the provision is of general application or relates only to those following a particular trade, profession or special activity. In the latter type of case (regulatory) the court will generally be more ready to hold it as Strict Liability. Therefore most SL offences regulate the sale of food, drugs, management of industrial activities and the conduct of licensed premises etc. As noted by Lords Reid in the case of Warner v Metropolitan Police Commissioner:
“….there is a long line of cases in which it has been held with regard to less serious offences that absence of mens rea was no defence. Typical examples are offences under public health, licensing and industrial legislation. If a person sets up as say a butcher, a publican, or manufacturer and exposes unsound meat for sale, or sells drink to a drunk man or certain parts of his factory are unsafe, it is no defence that he could not by exercise of reasonable care have known or discovered that the meat was unsound, or that the meat was bad or that his premises was unsafe. He must take the risk and when it is found that the statutory prohibition or requirement has been infringed he must pay the penalty. This may well seem unjust, but it is a comparatively minor injustice and there is good reason for it as affording some protection to his customers or servants or to the public at large. Although this man might be
able to show that he did his best, a more skilful or diligent man in his position might have done better, and when we are dealing with minor penalties which do not involve the disgrace of criminality, it may be in the public interest to have a hard and fast rule.”
(iii) Even where a statute is concerned with the above issues, the presumption of mens rea may stand unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
See: R v Blake (1996) The Times, 14 August.
Facts: - 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 or a strict liability offence.
The Court applied Lord Scarman's principles in Gammon (noted above) ( here the presumption was deemed rebutted because public safety was threatened) 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.
(iv) The Courts are also influenced by the degree of social danger which in their opinion will flow from the breach of the particular prohibition.
Such as: Dangerous Drugs – Warner v Metropolitan Police Commissioner (1969) and Pollution – Alphacell v Woodard (1972)
(v) Severity of the Punishment – It is often argued that the provision for a severe maximum punishment shows that Strict Liability could not have been intended by Parliament.
Note that because an offence is a strict liability offence it does not follow that there are no defences to it, as the same statute which creates the offence may set out certain exceptions which the defendant may come under. Furthermore in certain strict liability offences automatism may be pleaded, and where pleaded, the defendant is saying that he/she did not actually commit the actus reus as he/she was in a state of automatism.
ARGUMENTS FOR AND AGAINST STRICT LIABILITY
A number of reasons have been advanced FOR enforcing strict liability offences, that is:
- it is easier to enforce – as there is no need to prove mens rea;
- it is aimed at ensuring, particularly, business owners and corporations, maintain high standards – social interests require a high level of care and attention, persons are more likely to maintain high standards if they know that ignorance of the law or excuse will not excuse them from liability.
- it is considered desirable that those who make a huge profit from harm caused should pay for it, whether it intended or not;
- the imposition of strict liability has some deterrent value see Blake above where the CA in relation to the Wireless Telegraphy Act 1949 stated that “the imposition of strict liability would encourage greater vigilance on the part of those establishing or using a station, or installing or using the apparatus, to avoid committing the offence or would operate as a deterrent.”
- Strict liability is the most efficient and effective way of ensuring compliance with minor regulatory legislation and the social ends to be achieved are of such importance as to override persons who may be free of moral turpitude.
- Only slight penalties are usually imposed and it does not carry the same stigma normally associated with a criminal offence.
Arguments AGAINST its use have also been canvassed that is:
- it violates a fundamental principle of penal liability; namely that there should be no liability without proof of fault;
- there is no empirical evidence that a higher standard of care results from the imposition of strict liability. If a person is taking every reasonable precautionary steps, it is likely that he will not take any further steps as he knows no matter how much care is taken it will not serve as a defence in the event of a breach.
- it is wrong to punish those who have taken steps to prevent the harm in question;
- it is doubted whether it will really act as a deterrent for huge corporations that will find it better to pay a comparatively small price where found guilty of a strict liability offence rather than comply with it if is particularly inconvenient or expensive procedures.
- Perceived injustice of conviction may lead to a disrespect for the law.
VICARIOUS LIABILITY
Vicarious Liability is liability for the acts of another. The general rule in the criminal law is that there is no vicarious liability, that liability is personal and a person is not liable for the acts of others. This reflects the general principle that a crime is composed of both an actus reus (the Latin tag for "guilty act") and a mens rea (the Latin tag for "guilty mind") and that a person should only be convicted if he, she or it is directly responsible for causing both elements to occur at the same time. Thus the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law. True Vicarious Liability is often said to confined to the law of Tort where the principle is that the Employer is liable for all acts of the employee performed during the course of his employment. See Lloyd v Grace, Smith and Co. (1912) and Huggins (1730)
An employer can be held liable for his employee’s crimes as a general rule only where he is a participant in them subject to two exceptions at common law, that is, public nuisance and criminal libel. There are however several other exceptions created by statute which are generally contained within two main headings:
(i) The Delegation Principle
Imputes the mens rea of the employee to whom the task or compliance with the duty has been delegated to by the employer, making the employer liable for the breach of duty.
This is based on the fact that these statutory provisions are largely regulatory and it would be impossible for the employer to comply personally with all of their requirements and therefore impossible to prosecute, if it was framed with the employer or delegator only in mind.
An excellent example of same can be seen in the case of Allen v Whitehead (1930) – Here D the occupier of a café though he received the profits of the business did not manage it. Occupier having received a warning from the police instructed the manager not to allow prostitutes to congregate on the premises and had a notice to that effect displayed on the wall.
He visited the premises once or twice a week and there was no evidence that any misconduct took place in his presence. However on a number of occasions known to the manager prostitutes met together and remained there for hours.
Held: That D was liable for breaches of s.44 of the Metrpolitan Police Act- “that is knowingly permitting or suffering prostitutes or…. to meet together and remain in a place where refreshments are sold and consumed.”
- and that his ignorance of the actual facts was no defence as the knowledge of the manager to whom he delegated the authority of running the business was imputed to him.
The occupier was responsible for the acts of the manager as he employed the manager.
This case was applied in Linette v Metropolitan Police Commissioner (1946)
There is some degree of doubt as to the degree of delegation which is necessary to bring the principle into operation. See Vane v Yiannopoullos ((1865) compare with Howker v Robinson
In Vane v Yiannopoullos the Court determined that there must be a complete delegation of the licensee or manager’s duties and reponsibilities.
Here The House of Lords held that a restaurateur was not guilty of what would now be knowingly selling intoxicants to unpermitted persons. One of the waitresses, contrary to the restaurateur’s instructions, sold an intoxicant to a customer who was not having a meal. The restaurateur had gone to the basement at the time, but he had not delegated control of the restaurant to the waitress.
By a three to two majority in the House of Lords it was held that there was only a partial delegation, which was not sufficient for a conviction. Note should be made here as well of the dictum of varying law lords as some doubt was cast on the validity of the delegation principle.
Cf. Howker v Robinson (1973)
A licensee who was serving in the public bar was held liable for an illegal sale made by his barman in the lounge. Here though it did not seem to have been a case where the whole authority of the licensee was transferred or he was not managing the business himself, the Court found that there had factually been a delegation and that this point had therefore been properly decided by the magistrates.
Nb. The criticisms of this authority as having gone too far with the delegation principle.
(2) Where the Agent’s act is deemed to be the Act of the principal – Extensive Construction Principle
Vicarious Liability can also be said to arise in what is sometimes known as cases of EXTENSIVE CONSTRUCTION where the law may simply deems the actions of an employee to be those of the employer.
This is the result of an extended construction of certain verbs (“selling” or “being in possession”) that appear in criminal statutes. It commonly occurs where something is being sold; see, for example Coppen v Moore (No. 2) [1898]. The accused, who owned a number of shops (and therefore could not be present in all of them for all of the time), was convicted of selling goods bearing a false trade description. Contrary to his instructions, one of the assistants had sold an American ham as a “Scotch” ham.
Here the law deemed D to be the “seller” though he was not the actual salesman.
Liability of Corporations
In English law, a corporation can only act through its employees and agents so it is necessary to decide in which circumstances the law will apply to hold the corporation criminally liable for the acts of its employees or agents.
(i)By the law of agency or vicarious liability that is the corporation will be held VL for the acts of its employees and agents where a natural person would have similarly been held liable.
(ii) Notably however, a corporation also be held “personally” liable for acts committed by their controlling officers, that is those persons who are deemed the “directing mind and will” of the company, who when acting on the company’s business are considered to be the embodiment of the company or of sufficient standing within the corporation to be identified as part of the corporation. Their actions and mens rea can be seen as representing that of the company. See Lord Reid’s dictum in Tesco v Nattrass (1972) Often applied in cases of non-feasance that is where a statute imposes a duty upon a corporation to act and it fails to act.
See: Birmingham and Gloucester Railway Co (1842) where a corporation was convicted for failing to fulfill a statutory duty.
NB. An extension of the principle in the Meridian case [1995] WLR 413 where it stated that whether an act is to be attributed to a corporation is a question of the construction of the particular statute so that the statute may impose corporate liability in respect of an employee who could be said to be the directing mind and will of the corporation under the primary rules of attribution.
Aggregation Theory
The theory here is that the court can aggregate the mental status and actions of the employees of the company, and if together they provide sufficient mens rea for the crime then the company can be convicted, even though no one employee had the mens rea.
Although this theory has received some support among academics it was rejected in R v HM Coroner for East Kent ex p Spooner where Bingham LJ stated that “ as the law does not permit the conviction of an individual person based on aggregating other people’s mens rea, the same should be true for a company.” A rejection of this theory was also noted by the Ca in Attorney General’s reference (No2 of 1999)
Why is there a need for vicarious liability?
1. The offence may be one that can only be committed by the employer. Example he is the holder of the license and only the licensee can commit the offence.
2. It may be very difficult to prove fault on the part of the employer, so the actus reus and and mens rea of the employee are relied on.
3. For policy reasons the employer may be regarded as the appropriate target.
See Lord Russell’s dictum in Coppen v Moore above.
