Strict (and Absolute) Liability
Crimes of strict liability are offences which do not require full mens rea. For example:
- Blake – 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. 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. The Court of Appeal applied Lord Scarman’s principles in Gammon (see below) 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.
The following offences have been interpreted as being crimes of strict liability:
- Cundy v Le Cocq – Selling alcohol to an intoxicated person, even though the defendant claimed that he had been unaware of the customer’s drunkenness.
- Alphacell Ltd v Woodward – Causing polluted matter to enter a river, even though the defendant’s had not been negligent in operating their factory.
- Howells – Possessing a revolver without a firearm certificate, even though the defendant believed that he had purchased an 1860’s antique that did not require a certificate.
- R v Lemon; Gay News Ltd – Publishing a blasphemous libel concerning the Christian religion (an obscene poem about Jesus Christ), which only requires an intention to publish material which the jury views as blasphemous.
- PSGB v Storkwain – Selling medicinal products not in accordance with a prescription issued by a medical practitioner, even though the pharmacist acted in good faith, honestly believing a forged prescription to be genuine.
- Harrow London Borough Council v Shah – Selling lottery tickets to a person under 16, even though the shop owner took reasonable precautions to prevent this.
Case examples of offences interpreted as not being ones of strict liability include: Sweet v Parsley and B v DPP.
In Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong (a case involving breach of building regulations) the Privy Council considered the scope and role of strict liability offences in the modern criminal law. Lord Scarman laid down the criteria upon which a court should decide whether or not it is appropriate to impose strict liability:
“In their Lordships’ opinion, the law … may be stated in the following propositions: (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is “truly criminal” in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) 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.”
By contrast, offences of absolute liability do not require any mens rea at all. For example: Larsonneur, and:
- Winzar – The defendant had been admitted to hospital on a stretcher. Upon examination he was found to be drunk and was told to leave. Later he was found in a corridor of the hospital and the police were called to remove him. The police officers took the defendant outside onto the roadway, then placed him in a police car and drove him to the police station where he was charged with “being found drunk in a public highway”. The defendant was convicted, and appealed on the ground that he had not been on the public road of his own free will. The Divisional Court upheld the conviction holding that all that was required for liability was that the defendant should be perceived to be drunk whilst on a public highway. There was no need for the court to have any regard as to how he came to be there.
Absolute liability offences, which are also known as “state of affairs” offences, are an exception to the principle that the actus reus must be voluntary.