Criminal Law
Lecture 4: Strict Liability
By Feruza Bobokulova
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.
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)
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
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
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
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’.
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 1872. The
Divisional Court upheld his conviction. As in Larsonneur,
the defendant had not acted voluntarily. The police had
taken him to the highway.
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
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
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 13year-old boy without asking for proof of age
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
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
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
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…’
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.
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
1872. 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.
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.
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.
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
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
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
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
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
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
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.
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 .
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
The Gammon Criteria
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)
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
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
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
Reading Materials
•Allen, M., 2003. Textbook on Criminal Law,
7th edn. Oxford: Oxford University Press.
•Elliott, C. and Quinn, F., 2004. Criminal
Law, 5th edn. Essex: Pearson Education.
•Martin, J. and Storey, T., 2013. Unlocking
th
Criminal Law, 4 edn. Oxon: Routledge.
Thank You for your
Attention!