2. Criminal Law
Lecture 4: Strict Liability
By Feruza Bobokulova

3. Strict Liability
The offences where mens rea is not required in respect of at least one aspect of the actus reus are called strict liability offences
The ‘modern’ type of strict liability offence was first created in the mid-nineteenth century
The first known case on strict liability is thought to be Woodrow (1846). In that case the defendant was convicted of having in his possession adulterated tobacco, even though he did not know that it was adulterated. The judge, Parke B, ruled that he was guilty even if a ‘nice chemical analysis’ was needed to discover that the tobacco was adulterated.

4. Strict Liability
The concept of strict liability appears to contradict the basis of criminal law as it is thought to be based on the culpability of the accused
In strict liability offences there may be no blameworthiness on the part of the defendant
The defendant, as in Woodrow, is guilty simply because he has done a prohibited act
A more modern example demonstrating this is Pharmaceutical Society of Great Britain v Storkwain Ltd (1986)

5. Strict Liability
Pharmaceutical Society of Great Britain v Storkwain Ltd (1986) involved s 58(2) of the Medicines Act 1968, which provides that no person shall supply specified medicinal products except in accordance with a prescription given by an appropriate medical practitioner. D had supplied drugs on prescriptions which were later found to be forged. There was no finding that D had acted dishonestly, improperly or even negligently. The forgery was sufficient to deceive the pharmacists. Despite this the House of Lords held that the Divisional Court was right to direct the magistrates to convict D. The pharmacists had supplied the drugs without a genuine prescription, and this was enough to make them guilty of the offence

6. Strict Liability
For nearly all strict liability offences it must be proved that the defendant did the relevant actus reus
In Woodrow this meant proving that he was in possession of the adulterated tobacco
For Storkwain this meant proving that they had supplied specified medicinal products not in accordance with a prescription given by an appropriate medical practitioner
In these cases it also had to be proved that the doing of the actus reus was voluntary

7. Absolute Liability
However, there are a few rare cases where the defendant has been found guilty even though they did not do the actus reus voluntarily. These are known as crimes of absolute liability
Absolute liability means that no mens rea at all is required for the offence
It involves status offences; that is, offences where the actus reus is a state of affairs. The defendant is liable because they have ‘been found’ in a certain situation
Such offences are very rare. To be an absolute liability offence, the following conditions must apply:
The offence does not require any mens rea
There is no need to prove that the defendant’s actus reus was voluntary

8. Two Absolute Liability Cases
In Larsonneur (1933), the defendant, who was an alien, had been ordered to leave the United Kingdom. She decided to go to Eire, but the Irish police deported her and took her in police custody back to the United Kingdom, where she was put in a cell in Holyhead police station. She did not want to return to the United Kingdom. She had no mens rea ; her act in returning was not voluntary. Despite this she was found guilty under the Aliens Order 1920 of ‘being an alien to whom leave to land in the United Kingdom has been refused’ who was ‘found in the United Kingdom’.

9. Two Absolute Liability Cases
In Winzar v Chief Constable of Kent, D was taken to hospital on a stretcher, but when doctors examined him they found that he was not ill but was drunk. D was told to leave the hospital but was later found slumped on a seat in a corridor. The police were called and they took D to the roadway outside the hospital. They formed the opinion he was drunk so they put him in the police car, drove him to the police station and charged him with being found drunk in a highway contrary to s 12 of the Licensing Act The Divisional Court upheld his conviction. As in Larsonneur, the defendant had not acted voluntarily. The police had taken him to the highway.

10. Strict Liability
This idea of not requiring mens rea for part of the offence is illustrated by two cases, Prince (1875) and Hibbert (1869). In both these cases the charge against the defendant was that he had taken an unmarried girl under the age of 16 out of the possession of her father against his will, contrary to s 55 of the Offences Against the Person Act 1861
Prince knew that the girl he took was in the possession of her father but believed on reasonable grounds, that she was aged 18. he was convicted as he had the intention to remove the girl from the possession of her father. Mens rea was required for this part of the actus reus and he had the necessary intention. However, the court held that knowledge of her age was not required. On this aspect of the offence there was strict liability

11. Strict Liability
In Hibbert, the D met a girl aged 14 on the street. He took her to another place where they had secual intercourse. He was acquitted of the offence as it was not proved that he knew the girl was in the custody of her father. Even though the age aspect of the offence was one of strict liability, mens rea was required for the removal aspect and in this case, the necessary intention was not proved
The actus reus must be proved and the D’s conduct in doing the actus reus must be voluntary. However, a D can be convicted even if he took all reasonable steps to prevent the offence but was still guilty as there was no due diligence defence available

12. Strict Liability
Harrow LBC v Shah and Shah (1999), the defendants owned a newsagent’s business where lottery tickets were sold. They had told their staff not to sell tickets to anyone under 16 years. They also told their staff that if there was any doubt about a customer’s age, the staff should ask for proof of age, and if still in doubt should refer the matter to the defendants. In addition there were clear notices up in the shop about the rules, and staff were frequently reminded that they must not sell lottery tickets to underage customers. One of their staff sold a lottery ticket to a 13- year-old boy without asking for proof of age

13. Strict Liability
The salesman mistakenly believed the boy was over 16 years. D1 was in a back room of the premises at the time; D2 was not on the premises. D1 and D2 were charged with selling a lottery ticket to a person under 16, contrary to s13(1)(c) of the National Lottery etc. Act 1993 and the relevant Regulations. Section 13(1) (c) provides that ‘Any other person who was a party to the contravention shall be guilty of an offence’. This subsection does not have any provision for a due diligence defence, although s 13(1)(a), which makes the promoter of the lottery guilty, does contain a due diligence defence

14. Strict Liability
Both these offences carry the same maximum sentence (two years’ imprisonment, a fine or both) for conviction after trial on indictment. The magistrates dismissed the charges. The prosecution appealed by way of case stated to the Queen’s Bench Divisional Court. The Divisional Court held the offence to be one of strict liability. They allowed the appeal and remitted the case to the magistrates to continue the hearing. The Divisional Court held that the offence did not require any mens rea . The act of selling the ticket to someone who was actually under 16 was enough to make the defendants guilty, even though they had done their best to prevent this happening in their shop

15. Mens Rea in Strict Liability Offences
For new statutory offences, a ‘due diligence’ defence is more often provided
However, it is argued that due diligence should be a general defence, as it is in Australia and Canada
The draft Criminal Code of 1989 included provision for a general defence of due diligence, but the Code has never been enacted

16. No Defence of Mistake
Another feature of strict liability offences is that the defence of mistake is not available
This is important as, if the defence of mistake is available, the defendant will be acquitted when he made an honest mistake. Two cases which illustrate the difference in liability are Cundy v Le Cocq (1884) and Sherras v De Rutzen (1895). Both of these involve contraventions of the Licensing Act 1872
In Cundy the defendant was charged with selling intoxicating liquor to a drunken person, contrary to s 13 of the Act
‘13 If any licensed person permits drunkenness or any violent quarrelsome or riotous conduct to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty…’

17. No Defence of Mistake
The magistrate trying the case found as a fact that the defendant and his employees had not noticed that the person was drunk. The magistrate also found that while the person was on the licensed premises he had been ‘quiet in his demeanour and had done nothing to indicate insobriety; and that there were no apparent indications of intoxication’. However, the magistrate held that the offence was complete on proof that a sale had taken place and that the person served was drunk and convicted the defendant. The defendant appealed against this, but the Divisional Court upheld the conviction.

18. No Defence of Mistake
s 13 of the Licensing Act 1872 was held to be a strict liability offence as the defendant could not rely on the defence of mistake
In contrast it was held in Sherras v De Rutzen that s 16 of the Licensing Act 1872 did not impose strict liability. In that case the defendant was able to rely on the defence of mistake
In Sherras v De Rutzen (1895), the defendant was convicted by a magistrate of an offence under s 16(2) of the Licensing Act This section makes it an offence for a licensed person to ‘supply any liquor or refreshment’ to any constable on duty. There were no words in the section requiring the defendant to have knowledge that a constable was off duty.

19. No Defence of Mistake
The facts were that local police when on duty wore an armband on their uniform. An on-duty police officer removed his armband before entering the defendant’s public house. He was served by the defendant’s daughter in the presence of the defendant. Neither the defendant or his daughter made any enquiry as to whether the policeman was on duty. The defendant thought that the constable was off duty because he was not wearing his armband. The Divisional Court quashed the conviction. They held that the offence was not one of strict liability, and accordingly a genuine mistake provided the defendant with a defence.

20. No Defence of Mistake
In both cases the sections in the Licensing Act 1872 were expressed in similar words
In Cundy the offence was ‘sells any intoxicating liquor to any drunken person’, while in Sherras the offence was ‘supplies any liquor … to any constable on duty’
In each case the publican made a genuine mistake. Day J justified his decision in Sherras by pointing to the fact that although s 16(2) did not include the word ‘knowingly’, s 16(1) did, for the offence of ‘knowingly harbours or knowingly suffers to remain on his premises any constable during any part of the time appointed for such constable being on duty’. Day J held this only had the effect of shifting the burden of proof. For s 16(1) the prosecution had to prove that the defendant knew the constable was on duty, while for s 16(2) the prosecution did not have to prove knowledge, but it was open to the defendant to prove that he did not know.

21. Summary of Strict Liability
Where an offence is held to be one of strict liability, the following points apply:
The defendant must be proved to have done the actus reus
This must be a voluntary act on his part
There is no need to prove mens rea for at least part of the actus reus
No due diligence defence will be available
The defence of mistake is not available

22. Common Law SL Offences
Nearly all strict liability offences have been created by statute
Strict liability is very rare in common law offences. Only three common law offences have been held to be ones of strict liability. These are
public nuisance
some forms of criminal libel
outraging public decency

23. Common Law SL Offences
Public nuisance and forms of criminal libel such as seditious libel probably do not require mens rea, but there are no modern cases. In Lemon and Whitehouse v Gay News (1979) 1 All ER 898, the offence of blasphemous libel was held to be one of strict liability. In that case a poem had been published in Gay News describing homosexual acts done to the body of Christ after his crucifi xion and also describing his alleged homosexual practices during his lifetime. The editor and publishers were convicted of blasphemy. On their appeal to the House of Lords, the Law Lords held that it was not necessary to prove that the defendants intended to blaspheme

24. Common Law SL Offences
Blasphemous libel has now been abolished by the Criminal Justice and Immigration Act 2008
Outraging public decency was held to be an offence of strict liability in Gibson and Sylveire (1991) since it does not have to be proved that the defendant intended to or was reckless that his conduct would have the effect of outraging public decency
Criminal contempt of court used to be a strict liability offence at common law. It is now a statutory offence, and Parliament has continued it as a strict liability offence

25. Statutory SL Offences
The surprising fact is that about half of all statutory offences are strict liability. This amounts to over 5,000 offences
Most strict liability offences are regulatory in nature. This may involve such matters as regulating the sale of food and alcohol and gaming tickets, the prevention of pollution and the safe use of vehicles
In order to decide whether an offence is one of strict liability, the courts start by assuming that mens rea is required, but they are prepared to interpret the offence as one of strict liability if Parliament has expressly or by implication indicated this in the relevant statute

26. Statutory SL Offences
The judges often have difficulty in deciding whether an offence is one of strict liability
The first rule is that where an Act of Parliament includes words indicating mens rea (eg ‘knowingly’, ‘intentionally’, ‘maliciously’ or ‘permitting’), the offence requires mens rea and is not one of strict liability
However, if an Act of Parliament makes it clear that mens rea is not required, the offence will be one of strict liability

27. Statutory SL Offences
Throughout the Act it then states whether the ‘the strict liability rule’ applies to the various offences of contempt of court
However, in many instances a section in an Act of Parliament is silent about the need for mens rea. Parliament is criticised for this. If they made clear in all sections which create a criminal offence whether mens rea was required, then there would be no problem. As it is, where there are no express words indicating mens rea or strict liability, the courts have to decide which offences are ones of strict liability.

28. The Presumption of Mens Rea
Where an Act of Parliament does not include any words indicating mens rea, the judges will start by presuming that all criminal offences require mens rea. This was made clear in the case of Sweet v Parsley (1969)
In Sweet v Parsley (1969), D rented a farmhouse and let it out to students. The police found cannabis at the farmhouse, and the defendant was charged with ‘being concerned in the management of premises used for the purpose of smoking cannabis resin’. The defendant did not know that cannabis was being smoked there. It was decided that she was not guilty as the court presumed that the offence required mens rea .

29. The Gammon Criteria
In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984), the appellants had been charged with deviating from building work in a material way from the approved plan, contrary to the Hong Kong Building Ordinances. It was necessary to decide if it had to be proved that they knew that their deviation was material or whether the offence was one of strict liability on this point. The Privy Council started with the presumption that mens rea is required before a person can be held guilty of a criminal offence but went on to give four other factors to be considered

30. The Gammon Criteria

31. Quasi-Criminal Offences
Regulatory offences are also referred to as ‘quasi-crimes’. They affect large areas of everyday life. They include offences such as breaches of regulations in a variety of fields, such as
selling food, as in Callow
the selling of alcohol, as in Cundy
building regulations, as occurred in Gammon
sales of lottery tickets to an underage child, as in Harrow LBC
the prevention of pollution, as in Alphacell Ltd v Woodward (1972)

32. Quasi-Criminal Offences
In the Alphacell case the company was charged with causing polluted matter to enter a river, contrary to s 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951, when pumps which it had installed failed, and polluted effluent overflowed into a river. There was no evidence either that the company knew of the pollution or that it had been negligent. The offence was held by the House of Lords to be one of strict liability and the company found guilty

33. Justification for Strict Liability
The main justification is that given in Sweet , that strict liability offences help protect society by regulation of activities ‘involving potential danger to public health, safety or morals’. The imposition of strict liability promotes greater care over these matters by encouraging higher standards in such matters as hygiene in processing and selling food or in obeying building or transport regulations
Other justifications for the imposition of strict liability include the following:
It is easier to enforce, as there is no need to prove mens rea
It saves court time, as people are more likely to plead guilty
Parliament can provide a no negligence defence where this is thought appropriate
Lack of blameworthiness can be taken into account when sentencing

34. Arguments Against Strict Liability
Although there are sound justifications for imposing strict liability, there are also equally persuasive arguments against its use. The main argument against strict liability is that it imposes guilt on people who are not blameworthy in any way
Even those who have taken all possible care will be found guilty and can be punished. This happened in the case of Harrow LBC v Shah and Shah, where they had done their best to prevent sales of lottery tickets to anyone under the age of 16

35. Reading Materials
Allen, M., Textbook on Criminal Law, 7th edn. Oxford: Oxford University Press.
Elliott, C. and Quinn, F., Criminal Law, 5th edn. Essex: Pearson Education.
Martin, J. and Storey, T., Unlocking Criminal Law, 4th edn. Oxon: Routledge.

36. Thank You for your Attention!