Strict Liability in Criminal Law

In this blog post, we will be looking at the concept of strict liability in criminal law and how it works. Strict liability offences are uncommon as they require no mens rea, meaning that people can potentially be found guilty of crimes that they had no intention or recklessness for and had taken all reasonable precautions against. For this reason, most strict liability offences tend to either be regulatory ones aimed at businesses or driving offences such as speeding or driving without insurance. Although strict liability can be harsh on defendants, it is mostly used for health and safety reasons that try to protect the general public, so the benefits are seen to outweigh the negatives.

There are some requirements that an offence must meet before it can be classed as strict liability, which we will look at now. As strict liability imposes fault on the defendant for just their actions and can therefore produce unfair outcomes, there is a general presumption that mens rea must be present for the defendant to be found guilty. However, this presumption can be rebutted, which gives us the requirements mentioned above. These were first set out in Gammon (Hong Kong) Ltd vs Attorney-General of Hong Kong [1985] AC 1, a case where the defendant substantially deviated from construction plans but thought the deviation was only minor. As the crime was one of strict liability, it was irrelevant whether he believed the deviation to be substantial or minor.

Rebuttal of Presumption of Mens Rea

For a crime to be one of strict liability, there must be a rebuttal of the presumption of mens rea. This can be done in one of four ways. Firstly, strict liability may arise where an offence is regulatory rather than a “true crime”. Regulatory offences are those that are concerned with things such as health and safety, for example, the sale of food. In cases where it is a regulatory offence, the presumption of mens rea is replaced by the rule of strict liability. The reasoning behind this is that regulatory offences are fairly routine and do not really require a lengthy investigation, nor carry the same social stigma as a “true crime”.

The presumption of mens rea can also be rebutted if the crime is one of social concern. Essentially, a crime can become a strict liability one if it is in the public interest for prosecutions to be made in this area. Strict liability generally imposes high standards of care and should therefore protect the public from these sorts of crimes. For example, driving offences are often strict liability crimes, as in the case R vs Williams [2011] 1 WLR 588, where the defendant hit and killed a pedestrian while driving without insurance or a licence. Even though witnesses agreed that there was no way the driver could have prevented the death, he was still convicted of causing death by driving without a licence, as this is a strict liability offence that does not require fault.

A third way that the presumption of mens rea can be rebutted is if the wording of the act indicates that the offence could be one of strict liability. This can be done in a few ways. Firstly, the act may specifically state that it is a strict liability offence. Secondly, it could state that there is no mens rea required, which would amount to much the same thing. In the third situation, it may not be immediately obvious whether it is a strict liability offence, but the courts can interpret the wording of the act to decide whether strict liability applies. We will now look at how this third way works with a case example to illustrate.

The case we will be looking at is PSGB vs Storkwain Ltd [1986] 2 All ER 635, where a pharmacist sold prescription drugs without a prescription from an approved medical professional. However, they were given a prescription, but the signature was a fraudulent copy. The pharmacist was unaware of this and thought the prescription was genuine. It was decided that the offence was one of strict liability as another section of the same act (Medicines Act 1968) gave the mens rea for offences. As none was given, the assumption of strict liability was made.

The final way the presumption of mens rea can be rebutted is if the offence only carries a light penalty in proportion to the crime. This can be seen as proof that the offence is not considered serious or a true crime and so strict liability can be applied. However, the presence of a heavy penalty does not mean that there is a requirement for mens rea.

Wrapping Up

I hope that this helps you to understand how strict liability works in criminal law and the offences that it exists for. In my next blog post, we will be looking at factual causation in criminal law, so come back in two weeks for that!

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