criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...

, strict liability is liability for which (

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, many of the words and much of the vocabulary stem from English. ...

for "guilty mind") does not have to be proven in relation to one or more elements comprising the ("guilty act") although

intention Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...

, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be

culpable In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...

in any real way, i.e. there is not even

criminal negligence In criminal law, criminal negligence is a surrogate state of mind required to constitute a ''conventional'' (as opposed to ''strictly liable'') offense. It is not, strictly speaking, a (Law Latin for "guilty mind") because it refers to an o ...

, the least blameworthy level of . Strict liability laws were created in Britain in the 19th century to improve working and

safety standards Safety standards are standards designed to ensure the safety of products, activities and processes, etc. They may be advisory or compulsory and are normally laid down by an advisory or regulatory body that may be either voluntary or statutory. In ...

in factories. Needing to prove on the part of the factory owners was very difficult and resulted in very few prosecutions. The creation of strict liability offenses meant that convictions were increased. Common strict liability offenses today include the selling of alcohol to underage persons and

statutory rape In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behavior). Although it usually refers to adults engaging in sexual ...

. These laws are applied either in regulatory offenses enforcing social behaviour where minimal stigma attaches to a person upon conviction, or where society is concerned with the prevention of harm, and wishes to maximise the deterrent value of the offense. The imposition of strict liability may operate very unfairly in individual cases. For example, in ''Pharmaceutical Society of Great Britain v Storkwain'', a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the

House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...

accepted that the pharmacist was blameless. The justification is that the misuse of drugs is a grave

social evil A social issue is a problem that affects many people within a society. It is a group of common problems in present-day society and ones that many people strive to solve. It is often the consequence of factors extending beyond an individual's cont ...

and pharmacists should be encouraged to take even unreasonable care to verify prescriptions before supplying drugs. Similarly, where liability is imputed or attributed to another through

vicarious liability Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the re ...

corporate liability Corporate liability, also referred to as liability of legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons it employs and, in some legal systems, for those ...

, the effect of that imputation may be strict liability albeit that, in some cases, the accused will have a imputed and so, in theory, will be as culpable as the actual wrongdoer.

In various jurisdictions

Australia

The Australian ''Criminal Code Act of 1995'' defines strict liability and absolute liability in division 6. Recent work health and safety legislation creates strict liability for WHS offenses. Also, certain other industrial offenses such as pollution tend to be enacted in terms of strict liability. Most air safety regulations in regard to operators of aircraft and unmanned rockets are enacted as strict liability offenses.

Canada

Since 1978, Canadian criminal law has recognized a distinction between offenses of "strict" and "absolute" liability. In '' R. v. City of Sault Ste-Marie'' the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

created a two-tiered system of liability for regulatory offenses. Under this system, the Crown would continue to be relieved from proving the ''mens rea'' of the offense. However, offenses of strict liability would grant the accused a defense of due diligence—which would continue to be denied in cases of absolute liability. Further, in the absence of a clear legislative intent to the contrary, the Court held that all regulatory offenses would be presumed to bear strict liability. Following the enactment of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...

'' in 1982, this distinction was upheld in ''

Re B.C. Motor Vehicle Act ''Reference Re BC Motor Vehicle Act'', 9852 SCR 486, was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia ''Motor Vehicle Act''. The decision established one of the first princip ...

''. The Supreme Court further held that the inclusion of the possibility of imprisonment—no matter how remote—in an offense of absolute liability violated the accused's Section 7 right to liberty.

English law

Under the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

the rule is that crimes require proof of ''mens rea'' except in cases of public nuisance,

criminal libel Criminal libel is a legal term, of English origin, which may be used with one of two distinct meanings, in those common law jurisdictions where it is still used. It is an alternative name for the common law offence which is also known (in order ...

blasphemous libel Blasphemous libel was originally an offence under the common law of England. Today, it is an offence under the common law of Northern Ireland, but has been abolished in England and Wales, and repealed in Canada and New Zealand. It consists of t ...

, outraging public decency, and criminal contempt of court. Where the liability arises under a

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...

, there has been considerable inconsistency, with different rules of construction in

statutory interpretation Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...

producing varying assessments of the will of Parliament. But, in ''

Sweet v Parsley ''Sweet v Parsley'' was an English criminal law case where the defendant landlady of a farmhouse (which was let to students and which she visited infrequently) was charged under a 1965 Act "of having been concerned in the management of premises ...

'', Lord Reid laid down the following guidelines for all cases where the offense is criminal as opposed to quasi-criminal: #Wherever a section is silent as to ''

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...

'' 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. #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. #The fact that other sections of the Act expressly require ''mens rea'' is not in itself sufficient to justify a decision that a section which is silent as to ''mens rea'' creates an absolute offense. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. Hence, the literal rule is qualified, and there is a

rebuttable presumption In common law and civil law, a rebuttable presumption (in Latin, ''praesumptio iuris tantum'') is an assumption made by a court that is taken to be true unless someone proves otherwise. For example, a defendant in a criminal case is presumed i ...

that Parliament intended a ''mens rea'' to be a requirement in any section which creates an offense where the social stigma following conviction and the

punishment Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular ac ...

available to be imposed show this to be a truly criminal offense. In ''Gammon (Hong Kong) v Attorney General of Hong Kong'',

Lord Scarman Leslie George Scarman, Baron Scarman, (29 July 1911 – 8 December 2004) was an English judge and barrister, who served as a Law Lord until his retirement in 1986. Early life and education Scarman was born in Streatham but grew up on the b ...

rebutted the presumption because public safety was threatened. Hence, statutes involving pollution, dangerous drugs, and acting as a director while disqualified have been interpreted as imposing strict liability. In ''National Rivers Authority v Empress Car Co'', examples are given of cases in which strict liability has been imposed for "causing" events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent. If words like "knowingly" or "wilfully" appear in the section, the inference is that Parliament intended a ''mens rea'' requirement in that section. But, if words implying a ''mens rea'' are present in some sections but not others, this suggests that Parliament deliberately excluded a ''mens rea'' requirement in those sections which are silent. In considering offenses created in the Children Act 1960, Lord Hutton in ''B (a minor) v DPP'' (2000), states the current position: As to the meaning of "necessary implication",

Lord Nicholls Donald James Nicholls, Baron Nicholls of Birkenhead, (25 January 1933 – 25 September 2019) was a British barrister who became a Law Lord (Lord of Appeal in Ordinary). Biography Nicholls was educated at Birkenhead School, before readin ...

said Thus, the court must examine the overall purpose of the statute. If the intention is to introduce quasi-criminal offenses, strict liability will be acceptable to give quick penalties to encourage future compliance, e.g. fixed penalty parking offenses. But, if the policy issues involved are sufficiently significant and the punishments more severe, the test must be whether reading in a ''mens rea'' requirement will defeat Parliament's intention in creating the particular offense, i.e. if defendants might escape liability too easily by pleading ignorance, this would not address the " mischief" that Parliament was attempting to remedy.

Sexual Offences Act 2003

In ''R v G'' (2005), a 15-year-old boy was convicted of

of a child under 13, a crime unde
Section 5
of the

Sexual Offences Act 2003 The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom. It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeur ...

. The prosecution accepted the boy's claim that he had believed the 12-year-old girl to be 15, but he was nevertheless sentenced to 12 months' detention. This was reduced on appeal to a conditional discharge, but, in a 3–2 decision, the

declined to reverse the conviction.

Germany

In Germany, strict liability does not exist today since it is not consistent with the "

nulla poena sine culpa {{italic title ''Nulla poena sine culpa'' ( Latin for "no punishment without fault" or "no punishment without culpability") or the guilt principle is a legal principle requiring that one cannot be punished for something that they are not guilty o ...

" principle (no punishment without guilt). Strict liability existed in the

German Reich German ''Reich'' (lit. German Realm, German Empire, from german: Deutsches Reich, ) was the constitutional name for the German nation state that existed from 1871 to 1945. The ''Reich'' became understood as deriving its authority and sovereignty ...

, e.g. § 18 Wechselstempelgesetz, § 95 Reichsstempelgesetz.

United States

As the federal constitution entrenches a right of

due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...

, the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

usually applies strict liability to only the most minor

crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in C ...

s or infractions. One example is a parking violation, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. Serious crimes like

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...

and

murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...

usually require some showing of culpability or ''

''. Otherwise, every accidental

death Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...

, even during medical treatment in good faith, could become grounds for a murder prosecution and a prison sentence. A serious offense in which strict liability tends to show up is in

drunk driving Drunk driving (or drink-driving in British English) is the act of driving under the influence of alcohol. A small increase in the blood alcohol content increases the relative risk of a motor vehicle crash. In the United States, alcohol is i ...

laws; the punishment tends to be given on a strict liability basis, with no ''mens rea'' requirement at all. This was important for the purposes of a U.S. Supreme Court case in 2004, '' Leocal v. Ashcroft'', where a deportation order was overturned because the conviction that led to the deportation order was a strict liability law, while deportation was only allowed upon conviction if the crime was a "crime of

violence Violence is the use of physical force so as to injure, abuse, damage, or destroy. Other definitions are also used, such as the World Health Organization's definition of violence as "the intentional use of physical force or power, threatened ...

" (where violence, or the potential for it, was inherent in the crime itself). In many states,

is considered a strict liability offense. In these states, 22 , it is possible to face felony charges despite not knowing the age of the other person, or even if the minor presented identification showing an age of eighteen or higher. The American Law Institute's

Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...

generally restricts strict liability to minor offenses ("violations"). However, in ''United States v. Kantor'', which concerned underage pornographic actress

Traci Lords Traci Lords (born Nora Louise Kuzma; May 7, 1968) is an American actress and singer. She entered the adult film industry using a fake birth certificate to conceal that she was two years under the legal age of eighteen. Lords starred in adult f ...

, the

Ninth Circuit Court of Appeals The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

introduced a "good faith" defense against crimes in which the victim intentionally tricked the defendants into a factual mistake thinking that no crime was being committed. A "good faith" defense requires showing that the defendant affirmatively had reason to believe that they were not committing a crime, not simply a lack of knowledge that they were.

Notes

References

Works cited

*Allen, Michael. (2005). ''Textbook on Criminal Law''. Oxford: Oxford University Press. . *Carpenter, (2003). "On Statutory Rape, Strict Liability, and the Public Welfare Offense Model". ''American Law Review''. Vol. 53, 313. *Carson, W. G. (1970). "Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation". ''Modern Law Review'' Vol. 33, 396. *Glazebrook, P. R. (2001). "How old did you think she was?" ''Camb. Law Journal'' 26. *New South Wales Parliament (2006). ''Strict and Absolute Liability (Discussion Paper)'

*Ormerod, David. (2005). ''Smith and Hogan Criminal Law''. London: LexisNexis. . *Simons, (1997). "When Is Strict Criminal Liability Just?" ''Journal of Criminal Law & Criminology''. Vol. 87, 1075. *Whyte, D. (2014) Regimes of Permission and State-Corporate Crime. State Crime, 3; 2, pp. 237-246 {{English criminal law navbox Criminal law Elements of crime Public liability