Strict liability (criminal)
Encyclopedia
In criminal law
, strict liability is liability for which mens rea
(Latin
for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus
(Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will 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
, the least blameworthy level of mens rea.
Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions. The creation of strict liability offences meant that convictions were increased. Common strict liability offences today include the selling of alcohol to underage persons.
These laws are applied either in regulatory offences
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 offence. The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords
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
or corporate liability
, the effect of that imputation may be strict liability albeit that, in some cases, the accused will have a mens rea imputed and so, in theory, will be as culpable as the actual wrongdoer.
the rule is that crimes require proof of mens rea except in cases of public nuisance
, criminal and blasphemous libel, and criminal contempt of court
. Where the liability arises under a statute
, there has been considerable inconsistency, with different rules of construction in statutory interpretation
producing varying assessments of the will of Parliament. But, in Sweet v Parsley
[1970] AC 132, Lord Reid
laid down the following guidelines for all cases where the offence is criminal as opposed to quasi-criminal:
Hence, the literal rule
is qualified, and there is a rebuttable presumption
that Parliament intended a mens rea to be a requirement in any section which creates an offence where the social stigma following conviction and the punishment
available to be imposed show this to be a truly criminal offence. In Gammon v AG for Hong Kong (1985) AC 1, Lord Scarman 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 Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. (1998) 2 WLR. 350, 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 offences created in the Children Act 1960, Lord Hutton in B (a minor) v DPP (2000) 1 AER 833, states the current position at p855:
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 offences, strict liability will be acceptable to give quick penalties to encourage future compliance, e.g. fixed-penalty parking offences. 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 offence, i.e. if defendants might escape liability too easily by pleading ignorance, this would not address the "mischief" that Parliament was attempting to remedy.
of a child under 13, a crime under Section 5 of 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
declined to reverse the conviction.
, the United States usually applies strict liability to only the most minor crime
s or infractions. One example would be parking violations, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. But serious crimes like rape
and murder
require some showing of culpability or mens rea
. Otherwise, every accidental death
, 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
" (where violence, or the potential for it, was inherent in the crime itself).
Another common strict liability felony is manslaughter
, or accidental murder
. Although there is no guilty mind in manslaughter (the very thing that separates it from murder), the fact that the negligent actions resulted in someone's death supersede any need for mens rea.
In many states, statutory rape
is considered a strict liability offense.
In these states, 22 as of 2007, 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. Frequently, this applies to all sex offenses.
The American Law Institute's Model Penal Code establishes strict liability only for violations, and for statutory rape of a girl under the age of ten.
Recent occupational health and safety legislation creates strict liability for OHS offences. Also, certain other industrial offences such as pollution tend to be enacted in terms of strict liability. Most air safety regulations in regards to operators of aircraft and un-manned rockets are enacted as strict liability offences.
. In R. v. City of Sault Ste-Marie
the Supreme Court of Canada
created a two-tiered system of liability for regulatory offences. Under this system, the Crown would continue to be relieved from proving the mens rea of the offence. However, offences of strict liability would grant the accused a defence 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 offences would be presumed to bear strict liability.
Following the enactment of the Canadian Charter of Rights and Freedoms
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 offence of absolute liability violated the accused's Section 7
right to liberty.
Still, there was Criminal Strict liabillity in the German Reich, i.e. § 18 Wechselstempelgesetz, § 95 Reichsstempelgesetz.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, strict liability is liability for which mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will 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
Criminal negligence
In the criminal law, criminal negligence is one of the three general classes of mens rea element required to constitute a conventional as opposed to strict liability offense. It is defined as an act that is:-Concept:...
, the least blameworthy level of mens rea.
Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions. The creation of strict liability offences meant that convictions were increased. Common strict liability offences today include the selling of alcohol to underage persons.
These laws are applied either in regulatory offences
Regulatory offences
A regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required...
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 offence. The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Imputation (law)
In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...
or attributed to another through vicarious liability
Vicarious liability
Vicarious liability is a form of 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 responsibility of any third party that had the "right, ability...
or corporate liability
Corporate liability
In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs...
, the effect of that imputation may be strict liability albeit that, in some cases, the accused will have a mens rea imputed and so, in theory, will be as culpable as the actual wrongdoer.
Discussion of English law
Under the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
the rule is that crimes require proof of mens rea except in cases of public nuisance
Public nuisance
In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...
, criminal and blasphemous libel, and criminal contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
. Where the liability arises under a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, there has been considerable inconsistency, with different rules of construction in statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
producing varying assessments of the will of Parliament. But, in Sweet v Parsley
Sweet v Parsley
Sweet v Parsley was an English legal case where the defendant was found guilty of allowing her property to be used for smoking cannabis. Even though she had no knowledge of the offence, it was on her property so she was liable without fault. This conviction was later quashed by the House of Lords...
[1970] AC 132, Lord Reid
James Reid, Baron Reid
James Scott Cumberland Reid, Baron Reid, CH, KC FRSE was a Scottish Unionist politician and judge. His reputation is as one of the most outstanding judges of the 20th century....
laid down the following guidelines for all cases where the offence is criminal as opposed to quasi-criminal:
- Wherever a section is silent as to mens reaMens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
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 offence. 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
Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
is qualified, and there is a rebuttable presumption
Rebuttable presumption
Both in common law and in civil law, a rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty...
that Parliament intended a mens rea to be a requirement in any section which creates an offence where the social stigma following conviction and the punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
available to be imposed show this to be a truly criminal offence. In Gammon v AG for Hong Kong (1985) AC 1, Lord Scarman 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 Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. (1998) 2 WLR. 350, 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 offences created in the Children Act 1960, Lord Hutton in B (a minor) v DPP (2000) 1 AER 833, states the current position at p855:
- the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime the test is whether it is a necessary implication.
As to the meaning of "necessary implication", Lord Nicholls said
- Necessary implication connotes an implication that is compellingly clear. Such an implication can be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence. Necessary implication may arise from not only the statutory provision under review but also from the rules governing that provision to be deduced from other provisions.
Thus, the court must examine the overall purpose of the statute. If the intention is to introduce quasi-criminal offences, strict liability will be acceptable to give quick penalties to encourage future compliance, e.g. fixed-penalty parking offences. 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 offence, 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 a 2005 case, a 15 year old boy was convicted of statutory rapeStatutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
of a child under 13, a crime under Section 5 of the Sexual Offences Act 2003
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
. 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
Conditional discharge
A discharge is a type of sentence where no punishment is imposed. An absolute discharge is unconditional: the defendant is not punished, and the case is over. In some jurisdictions, an absolute discharge means there is no conviction despite a finding that the defendant is guilty...
, but, in a 3-2 decision, the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
declined to reverse the conviction.
United States
As a jurisdiction with due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, the United States usually applies strict liability to only the most minor crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
s or infractions. One example would be parking violations, where the state only needs to show that the defendant's vehicle was parked inappropriately at a certain curb. But serious crimes like rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
and murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
require some showing of culpability or mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
. Otherwise, every accidental death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
, 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
Leocal v. Ashcroft
Leocal v. Ashcroft, 543 U.S. 1 , held that aliens may not be deported after being convicted of DUI if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct....
, 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
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
" (where violence, or the potential for it, was inherent in the crime itself).
Another common strict liability felony is manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
, or accidental murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. Although there is no guilty mind in manslaughter (the very thing that separates it from murder), the fact that the negligent actions resulted in someone's death supersede any need for mens rea.
In many states, statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
is considered a strict liability offense.
In these states, 22 as of 2007, 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. Frequently, this applies to all sex offenses.
The American Law Institute's Model Penal Code establishes strict liability only for violations, and for statutory rape of a girl under the age of ten.
Australia
The Australian Criminal Code Act of 1995 defines strict liability and absolute liability in division 6.Recent occupational health and safety legislation creates strict liability for OHS offences. Also, certain other industrial offences such as pollution tend to be enacted in terms of strict liability. Most air safety regulations in regards to operators of aircraft and un-manned rockets are enacted as strict liability offences.
Canada
Since 1978, Canadian criminal law has recognized a distinction between offences of "strict" and "absolute" liabilityAbsolute liability
Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind...
. In R. v. City of Sault Ste-Marie
R. v. City of Sault Ste-Marie
R. v. City of Sault Ste-Marie [1978] 2 S.C.R. 1299 is a Supreme Court of Canada case where the Court defines the three types of offences that exist in Canadian criminal law and further defines the justification for "public welfare" offences.- Background :...
the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
created a two-tiered system of liability for regulatory offences. Under this system, the Crown would continue to be relieved from proving the mens rea of the offence. However, offences of strict liability would grant the accused a defence 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 offences would be presumed to bear strict liability.
Following the enactment of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
in 1982, this distinction was upheld in Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
. The Supreme Court further held that the inclusion of the possibility of imprisonment − no matter how remote − in an offence of absolute liability violated the accused's Section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
right to liberty.
Germany
In Germany Criminal Strict liabillity is not existing today, since it is not consistent with the "nulla poena sine culpa" principle (no punishment without guilt).Still, there was Criminal Strict liabillity in the German Reich, i.e. § 18 Wechselstempelgesetz, § 95 Reichsstempelgesetz.