In
criminal law
Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
, strict liability is
liability for which (
Law Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the ("guilty act") although
intention
An intention is a mental state in which a person 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 ...
,
recklessness or knowledge may be required in relation to other elements of the offense (
Preterintentionally /ultraintentional /versari in re illicita). 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 any real way, i.e. there is not even
criminal negligence
In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining c ...
, 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. Additional descriptive terms may help to clarify what hazards are being addressed, such as workplace safety standards (to keep workers safe), ...
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 behaviour). Although it usually refers to adults engaging in sex ...
.
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 is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
accepted that the pharmacist was blameless. The justification is that the misuse of drugs is a grave
social evil 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 r ...
or
corporate liability, 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 ''Criminal Code Act 1995'' (Cth) 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 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; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
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. These are distinguished from *criminal* offences, for which proof of *mens rea* of criminal negligence, recklessness, knowledge, or intention is required.
Following the enactment of the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...
'' in 1982, this distinction was upheld in ''
Re B.C. Motor Vehicle Act''. 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. As with all provincial statutes, offences under the MVA are not criminal offences.
English law
Under the
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
the rule is that crimes require proof of ''mens rea'' except in cases of
public nuisance,
criminal libel,
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 is a form of ...
,
outraging public decency, and
criminal contempt of court. Where the liability arises under a
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
, 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'',
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 state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...
'' 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
The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. The other two are the " mischief rule" and the " golden rule".
The plain meaning rule dictates tha ...
is qualified, and there is a
rebuttable presumption
In law, a presumption is an "inference of a particular fact". There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions. A rebuttable presumption will either shift the burden of production (requ ...
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 an individual or group, meted out by an authority—in contexts ranging from child discipline to criminal law—as a deterrent to a particular action or beh ...
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. He was described as an "outstanding judicial figure, entrusted with the most hi ...
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 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
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 behaviour). Although it usually refers to adults engaging in sex ...
of a child under 13, a crime unde
Section 5of the
Sexual Offences Act 2003. 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
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
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" principle (no punishment without guilt).
Strict liability in reality it is hidden in certain figures such as the Präterintentionalität.
United States
As the federal constitution entrenches a right of
due process
Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
, the
United States
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
usually applies strict liability to only the most minor
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
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 involving sexual intercourse, or other forms of sexual penetration, carried out against a person without consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person ...
and
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...
usually require some showing of culpability or ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...
''. Otherwise, every accidental
death
Death is the end of life; the irreversible cessation of all biological functions that sustain a living organism. Death eventually and inevitably occurs in all organisms. The remains of a former organism normally begin to decompose sh ...
, 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 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 characterized as the use of physical force by humans to cause harm to other living beings, or property, such as pain, injury, disablement, death, damage and destruction. The World Health Organization (WHO) defines violence a ...
" (where violence, or the potential for it, was inherent in the crime itself).
In many states,
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 behaviour). Although it usually refers to adults engaging in sex ...
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 generally restricts strict liability to minor offenses ("violations").
However, in ''United States v. Kantor'', which concerned underage pornographic actress
Traci Lords
Traci Elizabeth Lords (born Nora Louise Kuzma; May 7, 1968) is an American actress and singer. As a 15-year-old high-school dropout, she used Identity document forgery, fake identity documents to enter the sex industry, where she began appearin ...
, the
Ninth Circuit Court of Appeals 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.
See also
*
Command responsibility
In the practice of international law, command responsibility (also superior responsibility) is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) are legally r ...
*
Criminal law
Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
*
Espionage Act of 1917
*
Strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Und ...
(also covering civil law)
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
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