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Strict Liability
Criminal law (City University London)
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CRIMINAL LAW: STRICT LIABILITY
Strict Liability
Strict liability offences are offences which do not require proof of mens rea in respect of at least one
element of the actus reus. However, proof of mens rea may be required for some of the elements of
the actus reus.
The majority of strict liability offences are regulatory offences. They are usually provided for by
statute and govern issues such as health and safety, pollution, food safety, road traffic and licensing.
Although some strict liability offences carry the possibility of a sentence of imprisonment, many are
relatively minor and may be dealt with a fine. However, there are also some very serious offences,
such as rape of a child under the age of 13. ABH (s. 47 OAPA 1861) can also be described as a strict
liability offence. This is because the only element of mens rea required is that relating to the assault
or battery and no mens rea is required in relation to the degree of harm actually caused.
Strict liability offences permit a defendant to be convicted of a criminal offence without proof of
some element of fault. It is important to understand the justifications for imposing criminal liability in
the absence of clear blameworthiness.
Absolute liability
Absolute liability is a form of strict liability. Absolute liability offences do not require proof of any
mens rea element, but are satisfied by proof of the actus reus only. A defendant will be guilty of such
an offence if a certain set of circumstances is proved to exist. In addition, an absolute liability offence
does not even require proof of a voluntary act, so the fact that the defendant committed the offence
involuntarily is irrelevant and no defence.
E.g. an offence of absolute liability is drink-driving under s. 4(1) of the Road Traffic Act 1988. This
offence simply requires a defendant to be driving or attempting to drive a mechanically propelled
vehicle in a public place when unfit to drive through drink or drugs. There is no mens rea element.
Larsonneur (1933) 24 Cr App R 74
Facts: The defendant was convicted of being illegally in the country, contrary to the Aliens Order
1920, after she was brought back to the UK in custody.
- As this is an offence of absolute liability, no proof of her state of mind was necessary. The
defendant’s involuntariness in entering the UK was also not relevant to her liability.
Winzar v Chief Constable of Kent (1983), The Times, 28 March
Facts: The defendant was convicted of being drunk on the highway, contrary to s. 12 of the Licensing
Act 1872. The defendant had been placed on the highway by the police, but his involuntariness was
no defence.
Held: The Divisional Court stated that how the defendant came to be on the highway whilst drunk
was not relevant to his liability. The offence was committed because he actually was drunk on the
highway. The rationale for imposing liability for such an offence was in order to deal with the
nuisance of drunkenness in public places.
Identifying offences of strict liability
Although the majority of strict liability offences are found in statute, there are some common law
offences of strict liability. Examples include contempt of court and libel.
- Where the statute uses a mens rea word, such as intentionally, recklessly, negligently,
knowingly, or wilfully, such that the mens rea in the offence is clear, the offence is not one of
strict liability. However, where a statute is not clear on the mens rea of the offence, it is left
to the courts to determine whether the offence is one of strict liability or not. In doing so,
the courts have held that there is a general presumption in favour of the requirement of
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CRIMINAL LAW: STRICT LIABILITY
mens rea in a criminal offence. This means that criminal offences are presumed to contain
mens rea elements, even where the statute is silent as to the mens rea. However, this
presumption may be displaced, rendering the offence one of strict liability.
The presumption of mens rea
Sherras v De Rutzen [1985] 1 QB 918
Facts: The defendant was a landlord of a pub. He served alcohol to a police constable, believing him
to be off duty. The police officer was in fact on duty and the defendant was convicted of unlawfully
supplying liquor to a constable on duty, contrary to s. 16(2) of the Licensing Act 1872.
Held: The Division Court quashed the defendant’s conviction.
The presumption in favour of mens rea was adopted by the HOL in Sweet v Parsley.
Sweet v Parsley [1970] AC 132
Facts: The defendant was a schoolmistress. She let out the rooms in a farmhouse and occasionally
returned to collect the rent. The defendant was arrested after quantities of cannabis resin were
found in the farmhouse. She had no idea that the premises were being used for smoking cannabis.
Nevertheless, she was convicted of being concerned in the management of the premises used for the
purpose of smoking cannabis resin, contrary to s. 5(b) of the Dangerous Drugs Act 1965.
Held: The HOL quashed her conviction and held that this was not a strict liability offence. The HOL
held that the presumption of mens rea meant that the wording of the section should be read so as to
require mens rea.
Gammon (Hong Kong) Ltd v AG of Hong Kong [1985] AC 1
Facts: The Privy Council reaffirmed the presumption of mens rea. The appellants were a building
contractor, project manager, and site agent carrying out works on a site in Hong Kong. Part of a
lateral support system collapsed after a deviation from the plans approved by the building authority.
The contractor was charged with deviating in a material way from approved plans with carrying out
the works in a manner likely to cause risk of injury or damage. The magistrate dismissed the case and
held that actual or constructive knowledge was necessary and had not been proved.
Held: The COA of Hong Kong remitted the case to the magistrate and held that proof of knowledge
was not necessary. The appellants were convicted and appealed to the Privy Council. The Privy
Council reaffirmed the presumption of mens rea and Lord Scarman set out guidance to be followed
in determining whether an offence is one of strict liability.
B (A minor) v DPP [2000] 2 AC 428
Facts: The defendant was a 15-year-old boy who repeatedly asked a 13-year-old girl to perform oral
sex on him. He was charged with inciting a girl under the age of 14 to commit an act of gross
indecency, contrary to s. 1(1) of the Indecency with Children Act 1960. He maintained that he
honestly believed that she was over 14. At first instance, the offence was held to be one of strict
liability in respect of the complainant’s age, so the defendant pleaded guilty and appealed.
Held: The HOL allowed the appeal and held that the defendant’s state of mind was relevant to
liability. The HOL held that the presumption of mens rea required that even where the statue was
silent as to mens rea, mens rea would have to be proved unless Parliament indicated otherwise,
either expressly or by implication. The HOL took into consideration the nature of the offence as a
serious sexual offence which carries a severe penalty of up to 10 years’ imprisonment.
This decision conflicted with the older authority of Prince (1875).
Prince (1875) LR 2 CCR 154
Facts: The Court for Crown Cases Reserved held that the defendant’s mistake as to a girl’s age was
not relevant. The defendant was convicted of taking a girl under the age of 16 out of her father’s
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possession against his will, contrary to s. 55 of OAPA 1861. The defendant had reasonable grounds
for believing that the girl was 18 years old.
Held: However, this was held not to be a valid defence. There was no requirement of mens rea in
respect of the girl’s age, so knowledge that she was under 16 was not a requirement of the offence.
The HOL affirmed the decision in B v DPP (2000).
K [2002] 1 AC 462
Facts: K involved the conviction of a defendant for indecent assault, contrary to s. 14(1) of the SOA
1956 (replaced by SOA 2003). The complainant was a 14-year-old girl. The defendant claimed that
she had consented to the touching and that she had informed him that she was 16 years old. Under
s. 14(2) of the Act, a girl under 16 years of age could not consent to indecent assault. The COA
upheld the defendant’s conviction and held that this was an offence of strict liability in respect of the
complainant’s age.
Held: However, the HOL overruled the COA and held that the presumption of mens rea required the
prosecution to prove that the defendant had no genuine belief that the girl was 16 or over.
It should be noted that the SOA 2003 superseded these decisions. This Act created a new framework
of sexual offences, thus the offence of indecent assault no longer exists.
Factors to be considered
‘Truly criminal’ vs regulatory offences
Gammon Ltd v AG of Hong Kong (1985) established that ‘truly criminal’ offences are more likely to
require proof of mens rea. Regulatory offences are more likely to be offences of strict liability than
‘truly criminal’ offences. The seriousness of the offence charged and the severity of the penalty
imposed upon conviction are important considerations in determining whether an offence is one of
strict liability.
‘Truly criminal’ offences
- Less likely to be strict liability
- More likely to require proof of MR
- E.g. offences against children, sexual offences
Regulatory offences
- More likely to be strict liability
- Less likely to require proof of MR
- E.g. driving offences, pollution/environmental offences, offences of sale etc.
Social concern
Regulatory offences are more likely to be offences of strict liability. According to Gammon Ltd v AG of
Hong Kong, the presumption of mens rea can only be displaced if this is clearly or by implication the
effect of the statute and the statute is one which deals with an issue of social concern.
Alcohol abuse
Cundy v Le Cocq (1884) 13 QBD 207
Facts: The defendant was the landlord of a pub. He was convicted of selling intoxicating liquor to a
person who was drunk, contrary to s. 13 of the Licensing Act 1872.
Held: The defendant’s claim that that he did not know that the person was drunk was not held to be
relevant. The offence was one of strict liability. The Divisional Court considered the purpose of the
statute. The issue of social concern in this case was the abuse of alcohol.
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Consumer protection
Smedleys Ltd v Breed [1974] AC 839
Facts: A small caterpillar was found in one of millions of tins of peas sold by the defendant.
Held: The HOL imposed strict liability on the defendant after a prosecution under the Food and Drugs
Act 1955. The issue of social concern in this case was the protection of consumer.
In order to avoid liability, the defendant would have had to inspect every single pea, and even then
there is no certainty that the caterpillar would have been found and the incident prevented. It is not
practicable to expect a defendant to go to such lengths.
Misuse of drugs
Warner v MPC [1969] 2 AC 256
Facts: The defendant was found in possession of a box containing a controlled drug. He was
convicted of being in unlawful possession of a controlled drug, contrary to s. 1(1) of the Drugs Act
1964. The defendant knew that he was in possession of the box, but claimed that he thought it
contained perfume.
Held: This offence was held to be an offence of strict liability. Thus, the prosecution did not have to
prove that the defendant knew that he was in possession of a controlled drug. It was enough that he
knew he was in possession of the box and he knew that the box contained something.
Road safety
The offence of driving or being in charge of a motor vehicle whilst over the prescribed alcohol limit,
contrary to s. 5 of the Road Traffic Act 1988 is also an offence of strict liability. This was confirmed in
DPP v Harper [1997] 1 WLR 1406.
Prevention of pollution
Alphacell v Woodward [1972] AC 824
Facts: The appellants were convicted of causing or knowingly permitting polluted matter to enter a
river, contrary to s. 1(1)(a) of the Rivers Act 1951. The appellant pumped large quantities of a
polluted effluent into a tank near a river. The pumps became blocked and the tank overflowed,
causing the effluent to enter the river without the knowledge of the appellants.
Held: The HOL upheld the appellants’ conviction on the basis that strict liability was justified here for
the prevention of pollution and there was a need to encourage greater vigilance.
Underage gambling
London Borough of Harrow v Shah [1999] 3 All ER 302
Facts: The defendants were charged with selling a National Lottery ticket to a boy less than 16 years
of age, contrary to s. 13(1)(c) of the National Lottery Ac5 1993.
Held: The Divisional Court did not regard this as a ‘truly criminal’ offence, despite the sentence of 2
years’ imprisonment that it carries. It was held to be a strict liability offence.
No fault defences
Where an offence provides for a defence of ‘due diligence’, the offences is one of strict liability.
Where it is a defence to show ‘due diligence’, the defendant must prove that he has taken reasonable
care in preventing the commission of the offence by acting with due diligence.
Justifying strict liability
Protection of the public
The imposition of strict liability is necessary for the protection of the public. It generally related to
regulatory offences, encouraging greater vigilance and safety, and deterring incompetence and
unsafe behaviour.
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Easier to prove
Strict liability offences are easier to prosecute as they do not require the prosecution to spend time
and effort proving the mens rea element.
Small penalty
As most strict liability offences are regulatory only and not ‘truly criminal’, they carry only a minor
penalty of, perhaps, a fine. The imposition of strict liability for imprisonable offences is rare and, as
such, there is generally no danger of sacrificing an individual’s liberty without proof of mens rea.
Arguments against strict liability
Violation of ‘actus non facit reum nisi mens sit rea’
Criminal liability generally requires proof of an AR and MR. One of the fundamental principles of
criminal liability is derived from the Latin maxim actus non facit reum nisi mens sit rea. This means
‘an act does not make a man guilty of a crime, unless his mind is also guilty’.
Punishing reasonable behaviour
The imposition of strict liability can be unjust and contrary to principles of fairness. In some
situations, a defendant who has taken all reasonably practicable steps to avoid liability may be
strictly liable. It is questionable whether it is in the interests of justice to convict and punish a
defendant who has acted reasonably.
Stigma of a conviction
Although the penalty may be small in most cases of strict liability, a defendant may still be ‘punished’
by the stigma which goes with being convicted of a criminal offence. In some cases, such a conviction
may also damage the reputation of the defendant, potentially also affecting his livelihood.
Alternative to strict liability
As an alternative to imposing criminal liability in the absence of fault, offences could contain a
requirement of negligence. This would ensure that a defendant is only convicted if he fails to meet
the objective standard of the reasonable man. Another possibility is that statues contain a defence of
due diligence. Either of these alternatives would remove some of the harshness of strict liability.
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