In The Changing Law (1953), the infamous Lord Denning said that “in order that an act should be punishable it must be morally blameworthy” and this has been true for many crimes. The general consensus has long been that criminal responsibility can only be imposed on those who commit the actus reus of a crime with the relevant mens rea. However, this is not always the case.
The Oxford Dictionary of Law (Fifth Edition) defines strict liability as a form of criminal liability imposed without the need to prove mens rea for at least one element of the crime. While there may be defences available, such as automatism, strict liability law is essentially a crime that can be committed without the knowledge, recklessness, malice or intention of the perpetrator.
Why is Strict Liability Law Necessary?
There are several arguments for the development of strict liability as a part of the criminal law. With regard to corporate crime, the need to prove mens rea before a conviction can be made has resulted in a vast amount of criminal case law where conviction has been impossible simply because the “mind” of a company could not be determined.
In R v. P & O Ferries (Dover) Ltd (1990), for example, Turner J ordered the acquittal of P & O Ferries after mens rea could not be attributed to the senior directors of the company; thereby assuring the company itself could not have the mens rea to have committed the crime of manslaughter. Strict liability law essentially removes this back door criminal defence.
Developing Social Policy Using Strict Liability
Strict liability also allows the development of social policy and the discouragement of certain undesired practices. In An Introduction to Law, Professor Phil Harris argues that strict liability has become prevalent in regulatory offences because when high standards are to be encouraged, “it is more important that ... offences should be strictly punished than that conviction should be contingent upon proof of moral guilt” (Harris, 2007 p. 321).
Despite its advantages in removing unwanted criminal defences and promoting social policy, the courts have been reluctant to do away with the need for mens rea. In the case of Sweet v. Parsley [1970], Lord Reid ruled that when an Act of Parliament fails to mention mens rea, the courts will presume that the requirement for a mental element to the crime was intended.
The Rule in Gammon (Hong Kong) Ltd
Gammon (Hong Kong) Ltd v. Attorney-General of Hong Kong [1984] clarified the extent of this presumption. In Gammon, the court ruled that the presumption was particularly strong when an offence was “truly criminal” and that it can only be “displaced” in statutes regarding social concerns, such as public safety.
Furthermore, the displacement must be stated clearly, or by a “necessary implication” of the effect of the statute in question. Gammon then goes on to require that it be shown that creating a strict liability offence would be effective in promoting “the object of the statute by encouraging vigilance”, otherwise the need for mens rea will be presumed regardless.
Strict liability law has developed as a means of imposing criminal liability on companies where it would otherwise be impossible to do so, and to promote greater vigilance in specific areas of social policy, such as driving regulations. It removes certain criminal defences that could otherwise lead to miscarriages of justice and thereby makes it easier to pursue some convictions.
References:
- Allen, M.J. and Cooper, S. (2006) Elliott & Wood's Cases and Materials on Criminal Law (Ninth edition) Sweet and Maxwell, London
- Martin, E.A. (Ed.) (2003) A Dictionary of Law (Fifth edition) Oxford University Press, Oxford
- Harris, P. (2007) An Introduction to Law (Seventh edition) Cambridge University Press, Cambridge
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
Join the Conversation