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Actus Reus, Mens Rea and Strict Liability. It is important to understand the fundamental principles of criminal liability To do this we must consider.

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Presentation on theme: "Actus Reus, Mens Rea and Strict Liability. It is important to understand the fundamental principles of criminal liability To do this we must consider."— Presentation transcript:

1 Actus Reus, Mens Rea and Strict Liability

2 It is important to understand the fundamental principles of criminal liability To do this we must consider the following: Actus Reus Mens Rea Principle of Transferred Malice The need for Actus Reus and Mens Rea to coincide

3 Actus Reus The guilty act or omission It has to be A Positive Voluntary Act It sounds really straight forward to say that a crime must be something which a person knows they are doing and have done voluntarily (they have made an informed choice about what they plan to do). Therefore this point seems to be relatively straight forward. There are however a couple of notable exceptions:

4 Bratty v Attorney- General of Northern Ireland [1963] – In a case on Insanity Lord Denning set out the clear position on the law in relation to the voluntary nature of criminal acts: “The requirement that [the act of the accused] should be a voluntary act is essential… In every criminal case. No act is punishable if it is done involuntarily”.

5 Hill v Baxter [1958] – D had been driving for a short distance when he suddenly collided with another car. D claimed that he had been overcome with an unknown illness and lost consciousness. D’s claim was rejected and he was found guilty of Dangerous Driving. However the case is famous for the comments by Lord Goddard on what factors may cause an act to be involuntary: “I do not mean to say that a person should be made liable at criminal law who, through no fault of his own becomes unconscious while driving, as, for example, a person who was been struck by a stone or overcome by a sudden illness, or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees”. * It’s always important to note that it’s the burden of the prosecution to prove that this wasn’t the case*

6 The Actus Reus must generally be voluntary. If the actus reus is as a result of an involuntary act this may give rise to a number of defences. If you are not in control of your own body the defences of automatism or insanity may be available. Or if extreme pressure was put on you, you may get the defence of duress.

7 R v Mitchell [1983] – D had attempted to jump the queue in a Post Office when Smith (aged 72) objected to this and they had an argument. D punched S and this caused him to fall backwards onto V (an elderly woman aged 89) who broke her femur and died in hospital a few days later. Clearly in this instant D was responsible for V’s death. Whilst it was Smith landing on her that had caused her death, it was D that had committed the voluntary act, and Smith had no control over his fall. In law this is referred to as the Doctrine of Transferred Malice.

8 Types of Actus Reus: Result crimes – a prohibited consequence irrespective of the way it was brought about e.g. Murder requires a specific outcome, that being the death of the victim as without the death (the result) there is no murder. Note however, that the issue of causation is relevant here as for a result crime it must be established that the defendants act caused the result. Action crimes – the defendants behaviour is prohibited regardless of whether it leads to negative consequences e.g. Perjury, lying under oath, whether or not the lying is successful is immaterial, its the act of lying that is the offence (the action). Another example is Blackmail, where the defendant blackmails the victim; this is going to be regarded as an offence regardless of the outcome of the blackmail. State of Affairs – Refer to Strict Liability – offences that require proof of the actus reus only e.g. Speeding – Case: R v Larsonner (1933)

9 Omissions as Actus Reus In Criminal Law you will generally NOT be punished for not acting in a situation. Consider the example below: Jenny is walking through Sherdley Park in St. Helens on a beautiful summers’ Day. As she walks past the Duck Pond she notices a shocking site. Adam a charming and sophisticated Law Lecturer is struggling to keep his head above the water and is screaming out for help. What should Jenny do? Jenny is under no legal responsibility to save Adam. She can continue on her way as if nothing has happened. She could even sit on a nearby bench with a bag of popcorn and watch the situation unfold without fear of arrest. Under English law, Jenny is not guilty of Murder for her failure to act to save Adam.

10 However there are 6 exceptions! When can an Omission to act lead to guilt? The 6 Exceptions 1. A Statutory Duty 2. A Contractual Duty 3. A Duty stemming from a Legal Relationship 4. A Voluntarily Assumed Duty 5. A Duty from an Official Position 6. A Duty from a dangerous situation created by the Defendant Some Acts of Parliament may also create a duty on people to Act e.g. failing to send your child to school Under s 170 Road Traffic Act 1988 failing to stop at a road accident is a criminal offence.

11 Under a contract e.g. In a contract of employment where the failure to fulfil a contractual obligation is likely to endanger the lives of others R v Pittwood 1902 Because of a special relationship e.g. parent/child. As parents are under a duty to look after their child R v Gibbins and Proctor 1918 Voluntary undertaking of a duty- where the person is incapable of looking after themselves and relies on the accused. R v Stone and Dobinson 1977

12 A duty arising out of public office, e.g. A police officer as in R v Dytham 1979 A duty arising from the accused conduct i.e. Where the defendant created the dangerous situation R v Miller 1983

13 The duty of doctors A doctor is under a duty of care for a patient, un less the patient refuses medical treatment. In this case if the doctor omits to act then that can amount to an actus reus. Where the patient is not in a position to give instructions the doctor has to act in the best interests of the patient e.g. Airedale National Health Service Trust v Bland 1993

14 Causation The actus reus may require a consequence which follows from the act or omission. In these cases the court has to be satisfied that the accused’s conduct caused that consequence, consider murder as an example.

15 Intervening acts A main problem with causation is where there is an intervening act in the chain of events set by the defendant, sometimes:  The victim takes avoiding action e.g. Jumps out of moving car to escape from someone R v Roberts 1971 if foreseeable reaction it will not break the chain of causation  There is a reasonable intervening act R v Pagett 1983  Poor medical treatment fails to save the victim- R v Cheshire as opposed to dying from the original wounds R v Jordan 1956

16 Things that will not break the chain of causation: Turning off a life support machine where a patient is brain dead Not giving a blood transfusion R v Blaue Thin skull test Reasonably foreseeable acts If the victim died of the original injuries

17 Killing in a joint enterprise to assault and rob The CA held in Rafferty 2007 that a if someone drowned in the course of a plan between 3 co- defendants to assault and rob that was a new intervening act and would therefore break the chain of causation. This was the case because the Defedant was not present and did not know of the drowning.

18 Activity In groups or in written form, decide whether the right balance has been struck concerning liability for omissions Decide whether the actus reus of a crime has been established in the following unrelated situations. Give cases to support your findings:

19 1- Sue was in the habit of feeding her bed ridden grandmother at lunchtime, before going to her part time job. She was promoted suddenly, requiring her to be at work more and she totally forgot her grandmothers needs. Her grandmother has just died of starvation. 2- Gary noticed that the wheel of the car in front of him was wobbling dangerously but failed to inform the driver because he was late for an appointment and did not wish to become involved. The wheel came off and the driver was killed.

20 3- Gaby was staying illegally in college accommodation. She feel asleep while the bath was running and it overflowed. She woke up and decided that the water was now too cold and went to bed, leaving the water running behind in the bathroom. The resulting flood seriously damaged the flower two floors of the college building. 4- Ian, an electrician employed by the local council, went off for his tea break, leaving all wires exposed. Murray the supervisor was electrocuted.

21 Mens rea To be guilty of a crime the defendant must usually have the necessary Mens Rea or guilty mind. There are different levels of mens rea for different crimes.

22 Specific intention Specific intention has to be proved for crimes like murder and GBH with intent This is a decision to bring about a particular consequence, no matter whether the accused desired that consequence or not. There are 2 types: Direct intent and indirect intent.

23 Explain the difference between the two types giving examples

24 Foresight of consequences There are numerous case examples relating to this and they highlight the difficulty where the defendant does not actually desire the consequence: his main aim is something else, but his actions have the effect of making that consequence happen.

25 Explain the following cases: R v Maloney 1985 R v Hancock and Shank land 1986 R v Nedrick 1986 R v Woolin 1998

26 Case examples R v Maloney it was decided that foresight of consequences was only evidence from which intention could be inferred. D and V (D’s stepfather of whom D was very fond) had a contest as to loading and firing a shotgun. D a serving soldier shot V without aiming. V taunted D to fire the gun. Incident occurred during a late night of drinking. Held: Lord Bridge: ‘foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence... In the rare cases in which it is necessary for the judge to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’ D was not guilty of murder

27 Case examples R v Hancock and Shankland this case stressed that the possibility of the consequence occurring is important in deciding whether there is evidence in which to infer intention. In the midst of a miner’s strike in which they were participating, H and S pushed a concrete block and post from a bridge over the road along which V was driving M; the latter was killed in the collision. Held: Lord Scarman: The issue of probability regarding death or serious injury is critical to determining intention, yet Moloney omitted any reference in its guidelines to this issue.Moloney Therefore, the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.’ H and S were not guilty of murder.

28 R v Nedrick 1986-D poured paraffin through the letterbox of a house and set it alight, resulting in the death of a child. D was guilty of manslaughter, not murder. Held: Per Lord Lane CJ: ‘Where the charge is murder and in the rare cases where the simple direction [on intent] is not enough, the jury should be directed that they were not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant realised that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury, to be reached on consideration of all the evidence.’ The CA said that the jury should ask themselves 2 questions: 1- how probable was the consequences which resulted from the defendants voluntary act? 2- did the defendant foresee that act? Then if the consequence was a virtual certainty and the jury were sure that the defendant foresaw it as being so, there would be evidence for specific intent.

29 R v Woolin 1998-D lost his temper with his three-month-old son and threw the child onto a hard surface, causing head injuries from which the child died. Not guilty of murder, guilty manslaughter. Held: The jury, should be directed that they are entitled to find the necessary intention if they feel sure that death or serious bodily harm was a virtual certainty - barring some unforeseen intervention - as a result of the defendant’s actions, and that the defendant realised such was the case, but should be reminded that the decision is one for them on a consideration of all the evidence. Murder is a crime of specific intent. If for any reason (including self-induced intoxication) the killer does not form the necessary intent, he cannot be convicted of murder The HL did not like the use of 2 questions in Nedrick, but agreed that the jury should be told that they are not entitled to find the necessary intention unless they feel sure that the consequence was a virtual certain result of the defendants actions and the defendant appreciated that this was the case.

30 As you can see the decisions of the courts are very complicated in this area. It needs to be reformed. A draft Criminal Code, with a definition of intention, was produced by the law commission but has yet to be made into law.

31 Activity In a group or written form discuss and assess the true of the following statement: ‘foresight of a consequence as being virtually certain is not the same as intention.’

32 Activity Bridgette belonged to a fringe animal rights group. She was very upset when a Private Members Bill outlawing fishing was defeated in the House of Commons. She therefore decided to set fire to the building to draw attention to the cause. There was a late night sitting in Parliament at the time and two MPs were overcome with smoke and died. Bridgette has been charged with murder. - Advise the judge and jury how they should approach the subject of deciding whether Bridgette has the necessary mens rea for this offence.

33 Subjective recklessness This is a lower level of intention than specific intention. In R v Cunnigham 1957 D went into the cellar of an house that was converted into two. He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-in-law, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously caused W to take a certain noxious thing, coal gas, so as thereby to endanger her life. Held: The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. This is so, even if D did not intend the injury to V. [Cunningham Recklessness] The word "maliciously" in a statutory crime means foresight of consequence, it does not mean "wicked". It can be either an actual intention to do the particular kind of harm, or recklessness whether such harm should occur or not. It does not it require, any ill-will towards the person injured. Not guilty (on misdirection)

34 The second meaning is known as subjective recklessness because the defendant realised there is a risk. This meant that Cunningham could not be guilty unless he realised there was a risk that the escaping gas could injure someone. Subjective recklessness is the level of intention that needs to be proved for offences of common assault, assault causing abh and malicious wounding.

35 Objective recklessness This is a lower level of MR since it includes situations where the defendant has not realised that there is a risk, even though an ordinary, reasonable person would have realised the risk. MPC v Caldwell here the courts are no longer considering what the defendant realised, but are imposing an objective test of what others would have realised.

36 D set fire by night to a residential hotel where he had been employed. He bore a grudge against the proprietor. According to his evidence he was so drunk at the time that it did not occur to him that there might be people there whose lives might be endangered. Held: Recklessness in the context of Criminal Damage does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk.

37 This can make the D criminally liable even though they were incapable of realising the risk case- Elliot v C 1983 A fourteen-year-old girl who was in a remedial class at school set fire to shed and was found guilty of arson

38 The case of R v G and another [2003] HL has effectively ruled out the use of objective recklessness for crimes of Criminal Damage.R v G and another [2003] HL The previous test of recklessness (Caldwell) has produced much adverse comments from academics and judges, and as a test for recklessness it will not be mourned. In this case the HL reverted back to subjective recklessness as in Cunningham, which states that foresight of consequences is a necessary ingredient of recklessness. So if a defendant genuinely failed to appreciate the risk because of his young age or some other characteristic, they should not be found guilty and so cases like Caldwell and Elliot have been overruled.

39 DD aged 11 and 12 went camping without their parents approval. They went to the back of the Co-op in Newport Pagnell, lit some newspapers which set fire to a wheelie-bin which set fire to the shop, cause £1m of damage. They were convicted of arson by a jury. Both the judge and jury appear to have been not content with applying the objective approach that the law required in R v Caldwell (1982) HL. Held: Unanimously, Caldwell was wrongly decided, the test of recklessness was found in the preparatory work of the Law Commission prior to the Criminal Damage Act The test now is: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk." (Based on clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report “A Criminal Code for England and Wales Volume 1: Report and Draft Criminal Code Bill” (Law Com No 177, April 1989)) Not guilty of arson (criminal damage by fire)

40 Negligence Negligence consists of falling below the standard of the ordinary reasonable person. The test is objective, based on the hypothetical person, and involves the defendant either doing something the reasonable person would not do, or not doing something which the reasonable person would do. So negligence occurs when a person acts in a way that falls below the standard expected of the reasonable person in the same situation as the accused. It does not matter that the defendant was unaware that something dangerous might happen, if the "reasonable person" would have realised the risk, and taken steps to avoid it....a person acts- (c) 'recklessly' with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk; Negligent acts may suffice to incur liability in driving offences, death by dangerous driving or even gross negligent manslaughter

41 Negligence is decided on an objective basis and asks the question of whether the defendant’s actions failed to meet the standards of a reasonable man. It is not a concept that is widely used in criminal law (although heavily in civil law) but it is used as the basis of some offences, such as section 3 Road Traffic Act 1988 which makes it an offence it drive without due care and attention. The standard of due what is due care and attention is based on what the ordinary and reasonable man would consider. The main role for negligence in criminal law is with regards to gross negligence manslaughter. This requires the prosecution to establish that the defendant owed a duty of care, was in breach of duty which resulted in death. The current test for establishing liability for this offence was set out in the case of Adomako (1994) which established the test: "whether the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."

42 Specific Intention This level must be proved for most serious crimes including; murder, theft, burglary and robbery Subjective test Recklessness Deliberate risk taking. This must be proved for assault, battery, s47 assault, s 20 assault and criminal damage Subjective test Negligence Acting in a way that falls below the standard expected of a reasonable person- objective test Driving offences and gross negligence manslaughter

43 Activity David, aged 14 has a mental age of 11. he ran away from hme. As the weather deteriorated he decided to sleep in the door way of a furniture store. He made a small fire in order to keep warm and fell asleep. The wind became stronger and the fire spread to a stack of wooden pallets nearby and then to the building itself. When David woke the shop was ablaze. Advise David, who has been charged with aggravated criminal damage caused by the fire.

44 Transferred Malice If the defendant intends to attack a particular person, but by mistake attacks another person, the law transfers the intention from the indented victim to the real victim. This prevents the a defendant from trying to argue that there was no mens rea so far as the actual victim was concerned case- R v Latimer 1886 D, a soldier during an argument with another man C in a pub, took off his belt swung it at C, missed and wounded the landlady V. Held: The intention to strike C was transferred to V under the doctrine of transferred malice.

45 Haystead 2000 D assaulted by beating a child by punching the child's mother causing the child to fall and hit his head. He argued that battery required the direct application of force which involved direct physical contact with the victim either with the body or with a medium such as a weapon. Held; Battery did not require the direct infliction of violence and that H's act had been comparable to using a weapon to cause the child to fall. Although D had punched the complainant and not the child that she had been holding, the punches had caused the child to be dropped and therefore the magistrates had been entitled to find D guilty of assaulting the child by beating Guilty

46 But if the original intention was to carry out a different crime then its not possible to transfer that malice. R v Pembliton- D broke a pub window by picking up a stone and throwing it at the group of men he had been fighting, missed them and broke the window behind them. Held: His "malice" in intending to strike another person could not be transferred to an intention to break the window. Obiter: He could have been convicted had it been proved that he was reckless, having foreseen the risk of damage to the window. Not Guilty

47 Coincidence of actus reus and mens rea Whatever type of mens rea is required, there is a rule that both the AR and the MR must be present at the same time. However, where there is a chain of events the courts take a broad view, and often see this as a series or ‘continuation’ of acts in which the MR is extended to throughout the whole of the act. E.g. Thabo Meli v The Queen and R v Church

48 Scenario John, who has learning difficulties, is a member of his school’s under 16 mixed hockey team. The team’s captain, Ken, constantly criticises John in front of the other members of the team for being overweight and slow. During a particularly rough game against a rival school, John lost the ball to Katie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously, “You fat slug, even a girl can play better than you!”. John felt angry and humiliated, and when Katie next moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick. After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher, Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see her doctor in the morning. Katie ignored this advice and went out to a party where she danced until 10 o’clock. However, that night, Katie collapsed and was taken to hospital where she died. It was later discovered that her death was due to a blood clot caused by the blow to her leg, and that her life could have been saved if she had received prompt medical treatment.

49 Points to consider: Katie has died and therefore the question is about John’s liability for homicide: For any homicide question you will have to discuss the possibility of murder, voluntary manslaughter, involuntary manslaughter in that order. Murder- define murder Firstly is AR present- need factual and legal causation: Factual causation- but for test – but for John actions would Katie have died anyway – no, therefore but for test satisfied- White de minimis rule- were John’s actions more than merely trivial – yes, therefore this test satisfied, appears that factual causation established Legal causation- Operative and substantive cause of death? Was it down to John that Katie died? Cases of Smith, Cheshire seem to indicate that even if other people are involved, it takes a lot to break the chain of causation so that the original person inflicting the harm will not be liable Reasonably foreseeable intervening act will not break the chain of causation – was anybody else involved in the situation that may have been the cause of death i.e. been the operative and substantive cause? Only other person involved was Lisa – was it reasonably foreseeable that Lisa would help in this way? Suggest yes, it does not appear that it is Lisa’s fault that Katie died, she does not appear to have broken the chain of causation and been the cause of Katie’s death (no obligation on anybody to help, but even if they do, which Lisa did to a certain extent, she is unlikely to have been grossly negligent in her actions and caused Katie’s death). Thin skull test – nothing to indicate here that Katie has any weakness or beliefs that would make her more susceptible than a normal person It therefore appears as if the AR has been established.

50 Is MR present? Need intention, direct or oblique will suffice Direct – explain, does John have direct intention to kill or to cause gbh? Possibly. Oblique – explain and use the Woollin test, does John realise that death or serious injury will result as a consequence of his actions but he goes ahead anyway? Possibly. IF MR is satisfied then murder conviction= life sentence.

51 Strict liability.What is Absolute Liability and what are the key cases and themes? Absolute Liability offences do not require ANY Mens Rea at all for a Defendant to be guilty. These are the State of Affairs crimes that we covered in Actus Reus. To be an Absolute Liability offence, the crime must satisfy 2 criteria: 1. The offence does not require any Mens Rea. 2. There is no need to prove that the defendant’s Actus Reus was voluntary.

52 R v Larsonneur (1933) – D was a French national who had been caught working illegally in England, she was ordered to leave by the Government and she went to work in the Republic of Ireland. However upon arriving in Ireland she was arrested and put on a boat back to England, even though she didn’t want to go. Upon arriving in England she was arrested and charged under the Aliens Act 1920 with being found in the UK whilst not having permission to enter. D was convicted and her appeal was dismissed by the Court of Appeal. It was irrelevant that she had not chosen to come back and that it had been against her will.

53 Strict Liability offences are different from Absolute Liability offences in that they MAY require Mens Rea for part of the Actus Reus. This is an issue which is usually decided upon by the Courts on a case by case basis. As ever there are two cases which deal with this issue from different perspectives.

54 Presumption in favour of mens rea When dealing with criminal cases, we presume that mens rea has to be proved by the prosecution. In Sweet v Parsley (1970) Lord Reid said: “mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary”.

55 Four factors that could displace the presumption The crime is a regulatory offence where no real moral issue is involved and the penalty is usually small (Gammon – presumption not as strong for regulatory offences than ones that are ‘truly criminal’, Sweet v Parsley – difference between a ‘true crime’ and a ‘regulatory offence’, also (B (a minor) v DPP). Where you have a true crime the House of Lords has made it clear that the presumption of mens rea is particularly strong as seen in Sweet and B (a minor) v DPP. The statute deals with an issue of social concern (Gammon – it encourages people to take extra care) and covers behaviour which could involve danger to the public (e.g. Gammon building regulations; Harrow London Borough Council v Shah (1999) selling lottery ticket to under 16 year old) The wording of the Act does not suggest mens rea and therefore allows the possibility of the offence being strict liability (Alphacell v Woodward (1972) the word cause was given its literal interpretation) The smallness of the penalty (so the higher the penalty the more likely it is not to be treated as strict liability – this is not always so e.g. Gammon and Harrow)

56 Proposals for reform: The Draft Criminal Code Bill, proposed by the Law Commission, would set out a general presumption that all offences require intention, recklessness or knowledge, and if offences create liability for negligence or seek to impose strict liability then Parliament must clearly state this in the relevant provision. This would take responsibility away from the unelected judges and leave the decision to our elected representatives. It would make the law clearer and avoid inconsistent application. In Australia, they have a defence of all due care where the defendant can avoid conviction by proving they took all due care to avoid committing the offence. Some would argue that this approach should be adopted here.

57 Activity List the advantages and disadvantages of strict liability crimes

58 Advantages and disadvantages Advantage/ disadvantage Promotes high standards of care (Gammon, Harrow, Alphacell, Callow)/ Hard to prove if it does promote higher standards. In cases where someone is already doing their best it may not promote higher standards. Deterrent (e.g. speeding – you know if caught you will be fined) and helpful to enforcement agencies like the Health and Safety Inspectorate as it makes prosecutions more successful./ Not always a deterrent as some will take the risk and hope not to be caught. In some industries (e.g. food and drink) the enforcement agencies often lack the resources to investigate and prosecute and will often just warn the offender./ Small penalty means some businesses may take the risk of being caught as it is cheaper than putting in place safe working practices. Makes enforcement and prosecutions easier (Gammon – if you had to prove mens rea in small regulatory offences then the court system would be overloaded) – saves court time and money. For some offences there will be elements of the mens rea that have to be proved and for sentencing the degree of negligence etc will still be needed to be taken into account. It therefore does not necessarily save the court time and money. (Also makes sentencing more difficult). Overcomes any difficulty in proving mens rea (e.g. large corporations – may be difficult to prove that someone knew what was happening). This is morally doubtful. Why should someone who has taken reasonable care and could not have avoided committing the offence be punished? Most penalties for strict liability offences are small (a fine) so an individual’s liberty is not usually at stake. Prevents companies profiting from failing to put in place correct procedures (e.g. health and safety for workers) Even though the penalty is a fine, a criminal conviction can have other repercussions, such as a stigma. It can affect the reputation of a business. (Jackson v R) Again, the argument that small penalties might mean that some businesses take the risk of being caught.

59 Activity The (fictitious) Regulation of Salsa Dancing Act 2005 states that it is a criminal offence, punishable by a fine of £500 to fail to display a certificate awarded by the department of Entertainment, indicating that the premises have been declared unfit for dancing. - Bruce the owner of the Salsa is cool club duly obtained a certificate and believed it was hanging in the foyer. Unbeknown to him, it had been taken down when the walls were repainted. A rival club owner has reported him and faces prosecution. Advise Bruce.


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