STRICT LIABILITY.

The general rule of criminal rule is that a man is not criminally responsible for an act or conduct unless it
is proved that he did the act voluntarily and with a blameworthy state of mind. This principle is usually
stated in the maxim: ‘actus non facit reum nisi mens sit rea’.

Strict liability is therefore liability for which men rea does not have to be proven in relation to one or
more elements of the actus reus of an offence.

Under strict liability, there is a frequently examined phenomenon of absolute liability that one ought to
understand. Absolute liability refers to liability despite the absence of any mens rea in relation to the
elements of the actus reus and without the availability of any defence other than that, the defendant is
under the age of criminal responsibility.

In the case of Winzar v Chief Constable of Kent, the defendant was taken to hospital on a stretcher. The
doctor discovered that he was drunk and the doctor told him to leave but he refused. The police were
called and they moved him to their car on the highway. The defendant’s conviction of the offence under
the Licensing Act 1872 of being found drunk on a highway was upheld by the Divisional Court on
grounds that, as the purpose of the offence was to deal with the nuisance of drunkenness in public,
therefore the fact that the police procured the offence was immaterial. To explain this case better, strict
liability does not take into consideration of the intention or knowledge of the perpetrator which
constitute the mens rea, but rather what matters is: did the defendant commit the offence? In as regards
this case, the aforementioned Act was meant to deter the crime of drunkenness in public, which is one
of the main objectives of strict liability (emphasis is mine).

It is noteworthy that an offence is one of strict liability if:

 The defendant must be proved to have done the actus reus.

The Presumption of Mens Rea.

When 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 Sweet v Parsley (1969),1
where the defendant rented a 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.

Lord Reid opined: “… there has for centuries been a presumption that Parliament did not intend to make
criminals of persons who were in no way blameworthy in what they did. That means that, whenever a
section is silent to mens rea, there is a presumption that, in order to give effect to the will of parliament,
we must read in words appropriate to require mens rea… it is fairly established by a list of authorities
that mens rea is an ingredient of every offence unless some reason can be found for holding that it is
not necessary.”

1
(1969) 1 ALLER 347
The presumption of mens rea was well espoused in the case of Ganmon (Hong Kong) Ltd v Attorney
General (1984),2 where lord Scarman laid down the criteria upon which a court should decide whether
or not it is appropriate to impose strict liability.

It is pertinent to note that there is a presumption of law that mens rea is required before a person can
be held guilty of a criminal offence, however, the presumption of mens rea can be displaced/rebutted in
the following instances:3

1. When the crime is regulatory in nature as opposed to true crime.

A. When the crime is regulatory in nature/regulatory offenses.

In the Ganmon case it was stated that the presumption of mens rea that is required was less for
regulatory offences than truly criminal offenses. The distinction for true crimes was drawn in the case of
Sweet v Parsley (1970). In this case where a landlady was charged and found guilty of being concerned
in the management of premises that were being used for the purpose of smoking cannabis; Lord Reid in
her appeal judgement acknowledged the fact that strict liability was appropriate for regulatory offences
or quasi crimes, which are not criminal in any real sense but rather for merely acts prohibited in the
public interest. However, he added that the kind of crime to which a real social stigma is attached
should usually require proof of mens rea, therefore in the case of such offences, it was not in the public
interest that an innocent person should be prevented from proving their innocence in order to make it
easier for guilty people to be convicted.

Since their Lordships regarded the offence under consideration as being a ‘true crime’, the stigma had
for example, caused Ms. Sweet to lose her job. The House of Lords therefore held that it was not a strict
liability offence and since Sweet did not have the necessary mens rea, her conviction was overturned. It
should be noted in this case that where mens rea is silent, words imputing mens rea should be read in
the provision; therefore, in the absence of knowledge, presumption of mens rea was required and is
considered to not have been rebutted.

In Sweet v Parsley, Sweet ought to have known have known that her rentals were being used for smoking
cannabis contrary to the Dangerous Drugs Act, however, Sweet rarely visited the premises and did not
know about this. She rented the premises but was not concerned in how they were managed, all she did
was sublease. At the end of the day, one ought to establish mens rea and it would be unjust to rebut it.
(emphasis is mine)

B. When the crime is one of social concern.

According to Ganmon, where a statute is concerned with an issue of social concern such as public safety
and the creation of strict liability will promote the purpose of the statute by encouraging potential
offenders to take extra precautions against committing the prohibited act, the presumption in favour of

2
(1984) ALL ER 503
3
Ibid, Ganmon case
mens rea can be rebutted. The type of offences that fall in this category cover behavior which could
involve danger to the public, but which would not usually carry the same kind of stigma as a crime such
as murder or theft. A case in point, the building regulations committed in Ganmon is an example as are
offences relating to serious pollution of the environment.

In Alphacell v Woodward (1972), where the defendants were charged with causing pollution to a river
yet there was no evidence that they had been negligent, in fact, they were even using equipment
designed to prevent any overflow to the river though the unfortunately leaves clogged it thus pollution.
The House of Lords however, opined that where statutes create an offence of causing something to
happen, the courts should adopt a common sense approach whereby if reasonable people would say
that the defendant has caused something to happen, regardless of whether he/she knew that he/she
was doing so, then no mens rea was required. Their Lordships held therefore that: in the normal
meaning of the word, the company had caused the pollution and their conviction was upheld.

It was interesting what Lord Salmon had to say in this case:

“If this appeal succeeded and it was held to be the law that no conviction be obtained under the 1951
Act, unless the prosecution could discharge the often impossible onus of proving the pollution was
caused intentionally or negligently, a great deal of the pollution would go unpunished and undeterred
to the relief of many factory owners. As a result, many rivers which are now filthy would become
filthier still and many rivers which are now clear would lose their clearness.”

Lord Salmon here simply meant that in as much as one may not have caused the social problem, even if
they took necessary precautions, what matters is that they caused social problems or committed crimes
of social concern and ought to be convicted for such. Therefore, forgiving such offenders on grounds that
they tried their best to be careful but the end result was inevitable (even when indeed they are right)
would usher in a new generation of ‘offenders with excuses’ (emphasis is mine) which would at the end
of the day not achieve the intention of the Act- probably to protect the environment.

We see a similar position in Callow v Tillstone (1990) that seemed rather ‘harsh and unjust prima facie’
however, it was justified under strict liability following the Ganmon criteria. In this case the defendant
was convicted of selling meat which was unfit for public consumption, though he had presented it to a
veterinary doctor for examination twice and the latter declared that it was safe for consumption.
However, despite the extra precaution and due diligence he exercised, that did not matter as it was his
duty to ensure the safety of meat and the law had the intention of protecting the public from
consumption of ‘bad meat’ therefore the defendant could not be excused otherwise that would
undermine the intention of the Act under which he was held liable.

C. The wording of the Statute.

Presumption of mens rea is rebutted by express provision in the statute excluding the requirement of
mens rea. (Sweet v Parsley); it can also be by implied statutory provisions, however according to section
105 of the Evidence Act CAP 8, the Prosecution to prove that a crime is of strict liability and does not
require mens rea.
In Cundy v Le Cocq (1884),4 where the appellant was convicted of unlawfully selling alcohol to an
intoxicated person under section 13 of the Licensing Act, the appellant appealed on the grounds that he
was unaware of the customer’s drunkenness, however the appeal was dismissed as the court of appeal
held that section 13 was silent to mens rea whereas other offenses under the Act expressly required
proof of knowledge on the part of the defendant. It was therefore taken that the omission to refer to
mens rea was deliberate and the offense was one of strict liability.

It should be clearly pointed out that the express and clear use of the word ‘knowingly’ in a statute tells
the courts that mens rea is required and tends to be used where Parliament wants to underline the fact
that the presumption of mens rea should be applied.

JUSTIFICATION FOR STRICT LIABILITY/ARGUMENTS IN FAVOUR OF STRICT LIABILTY:

1. Promotion of care.

By instituting laws that criminalize causing social problems such as pollution, the public is protected
from the dangers/adverse effects that would arise from such social problems for example, diseases.
Since the objective of criminal law is to prevent socially damaging activities, it would be absurd to turn a
blind eye to those who cause the harm due to carelessness, negligence or even accident. A case in point
are the cases of Callow v Tillstone and Alphacell v Woodward which ensure that businessmen exercise
not just diligence but extra diligence as they will be charged for causing a social problem regardless of
whether they tried to avert the consequences.

2. Deterrent value.

Strict liability provides strong deterrence especially in the case of regulatory crimes which are in place to
regulate commission of crimes such as drinking while driving, selling alcohol without a license. The fact
that no mens rea is required deters potential criminals from acting contrary because they know that
they will not have a defense of lack of knowledge or intention.

3. It ensures that business runs properly.

The application of strict liability can be justified with regard to the conduct of a business in that when a
decision is taken on when to enter the business, the strictness of liability is to be weighed.

4. Easier enforcement.

Strict liability makes enforcing offenses easier for example in the Ganmon case, where the Privy Council
suggested that if the prosecution had to prove mens rea even in the smallest regulatory offense, the
administration of justice might quickly come to a complete standstill.

To simplify further, the fact that mens rea is not required for such offenses, this reduces the long court
procedures involving the defendant proving whether or not he had knowledge/intention.

5. It is difficult to prove mens rea in strict liability offenses therefore, if mens rea had to be proved
in such offences, then many guilty people would escape conviction.
6. Strict liability is not a threat to liberty.

4
(1884) 13 QBD 207
In majority strict liability offences, the defendant is a business and the penalty is a fine, therefore, the
individual liberty is not generally under threat. Strict liability in most cases seeks to protect the public
interest and unless a true crime is committed, one may not necessarily be imprisoned but have a small
penalty prescribed under law.

ARGUMENTS AGAINST STRICT LIABILITY:

1. Injustice.

Strict liability is characterized as unjust on various grounds. First, it is not in the interests of justice that
someone who has taken reasonable care and could not possibly have avoided committing an offence,
should be punished by criminal law. For example, in Callow v Tillstone where he had the meat examined
by two veterinary doctors but yet still was found to be at fault for selling meat unfit for human
consumption.

2. The argument that strict liability should be enforced because mens rea would be too difficult
to prove is morally doubtful.

It may not be in the best interest of justice if strict liability is imposed in these cases just because mens
rea would make things too difficult for the prosecution. It is therefore inconsistent with justice to
convict someone who is not guilty ‘in the normal sense of the word’, just because the penalty imposed
will be small.

3. It imposes guilt on people who are not blameworthy in any way.

Even those who take possible care are found guilty. For example, in Harrow LBC v Shah and Shah, where
the defendants did their best to prevent the sale of lottery tickets to anyone under the age of 16. Callow
v Tillstone is also applicable here.

4. It is ineffective.

In many cases, chances of being caught and prosecuted are not high, because enforcement agencies
frequently lack the resources to monitor the huge number of potential offenders. Even in an event
where the offenders are caught, it appears that the usual response of enforcement agencies is a warning
letter. Furthermore, the most serious offenders may be threatened with prosecution if they do not put
matters right but only a minority are actually prosecuted.

5. In as much as one of its justifications is the maintenance of high standards such as health and
safety, there is no evidence that it would improve such standards.
6. Limited administrative advantage.

Cases still have to be detected and brought to court and in some cases, selected elements of the mens
rea still have to be proved. Therefore, even though strict liability may make conviction easier, it leaves
the problem of sentencing as this cannot be done fairly without taking the degree of negligence into
account.

7. Better alternatives are available.

There are alternative to strict liability which would be less unjust and more effective in preventing hsrm,
such as better inspection of business premises and the imposition of liability for negligence. Smith and
Hogan suggest that strict liability should be replaced by liability for negligence as this would catch
defendants who were simply thoughtless or inefficient as well as those who broke the law rather than
punish people who were genuinely blameless.