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Strict Liability - Coggle Diagram

- - - - If people or companies know they can be convicted just by committing the actus reus of a crime then they will take greater care and will be deterred from committing an offence.
        
        Barbara Wooton, a social scientist, has defended strict liability on this basis, suggesting that if the objective of criminal law is to prevent socially damaging activities.
        
        Smedleys v Breed (1974)
        
        Lim Chin Aik v R (1963)
        
        The more recent case of R v Hughes (2009) the courts have proved reluctant to apply strict liability where it could result in innocent people being convicted for serious offences, and reveals the natural ‘distaste’ of judges for the concept of strict liability offences
        
        Especially where a custodial sentence would normally be imposed
    - - For the kinds of offences to which strict liability is usually applied, the important deterrent factor may not be the chances of being convicted, but the chances of being charged with an offence
        
        Rather than ensuring a higher standard of care, strict liability may have quite the opposite effect
        
        Knowing that it is possible to be convicted of an offence regardless of having taken every reasonable precaution may reduce the incentive to take such precaution, rather than increase it.
  - - - According to Gammon, where a statute is concerned with an issue of social concern (such as public safety) the presumption of mens rea can be rebutted.
        
        The type of offences that do fall into this category could involve danger to the public.
        
        In Gammon, for example, it involved offences relating to serious pollution of the environment.
        
        Pharmaceutical Society of Great Britain v Storkwain Ltd (1986)
        
        It could be said that strict liability offences effect only businesses, not private citizens going about their private lives. They can therefore be viewed as an occupational hazard of being in business.
        
        Alternatively, critics suggest that it is not in the interest of justice that someone who has taken reasonable care, and could not possibly have avoided committing an offence, should be punished.
        
        Alphacell v Woodward (1972)
        
        Harrow London Borough Council v Shah (2000)
  - - - This presumption is particularly strong when the offence is truly criminal.
        
        This can be seen in B (a minor) v DPP (2000).
        
        The question for the court was whether the offence under s.1(1) was of strict liability in relation to the age of the victim.
        
        B (a minor) v DPP (2000)
        
        These cases show how inconsistent judicial interpretation of strict liability offences can be. This means that there are discrepancies in both the offences to which it is applied, and what it actually means.
        
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        R v K (2001)
        
        R v G (2008)
  - - - If such words are not present (i.e. the Act is silent), the courts have to decide whether Parliament intended the offence to be one of strict liability or whether the offence is one where mens rea must be established.
        
        This can be criticised because if Parliament had intended the offence to be a ‘true crime’ or one not of strict liability then they would have included mens rea-type words in the Act.
        
        The role of judges is to interpret the law is there a danger that they are misinterpreting Parliament’s intentions by presuming mens rea and setting new precedent? (Undemocratic)
- - - - This principle was acknowledged in the latter case of Gammon (Hong Kong) Ltd v Attorney General (1985).
        
        As a result of Gammon, the Privy Council restated the fact that the courts should always start with the presumption that mens rea was always required to be proven by the prosecution, and then apply the following four Gammon Principles:
  - - - The defendant is to be found guilty whether or not they know they are over the limit.
- - - - Alternatives to strict liability
        
        There are alternatives to strict liability which would be less unjust and more effective in preventing harm, such as better inspection of business premises and the imposition of liability for negligence.
        
        Liability for negligence
        
        Smith and Hogan suggest that strict liability should be replaced by liability for negligence. This would catch defendants who were simply thoughtless or inefficient, as well as those who deliberately broke the law, but would not punish people who were genuinely blameless.
        
        Defence of all due care/due diligence
        
        In Australia a defence of all due care is available. Where a crime would otherwise impose strict liability, the defendant can avoid conviction by proving that he or she took all due care to avoid committing the offence.
        
        Misuse of Drugs Act 1971 and the Trade Descriptions Act 1968.
        
        Restriction to public danger offences
        
        Strict liability could perhaps be more easily justified if the tighter liability were balanced by real danger to the public in the offence – the case of Gammon can be justified on this ground.
        
        Extending strict liability
        
        Barbara Wootton advocates imposing strict liability for all crimes, so that mens rea would only be relevant for sentencing purposes.
- - - - This would certainly be fairer on a defendant who takes all reasonable care, such as Shah, but would mean that it would take longer to hear cases.
    - - In many cases the defendant is not seen as a true criminal and a fine or discharge would reflect this.
    - - This would make the law clearer and remove any need to presume mens rea.