Strict Liability - Essay Example

?Strict Liability must be retained. It provides social benefits which could not be obtained through any of the supposed alternatives to it and the injustice caused by it is often exaggerated Introduction Discussions have been going back and forth on the application of strict liability provisions. In some quarters, arguments have been forwarded on the injustice which often comes from applying strict liability laws. However, its social benefits have been highlighted by other experts and interest groups. This dilemma has divided experts and has prompted further review of both sides of the issue. This paper shall discuss the thesis that: strict liability must be retained on the basis that it provides social benefits which could not be obtained through any of the supposed alternatives. Arguments for strict liability policies also point out that the claims of injustice in its applications are grossly exaggerated. A comparison and contrast of strict liability and absolute liability would be covered by this study, including a statement of relevant arguments for the proposition shall also be discussed. Body A strict liability offence is defined as one where “no mens rea need[s] be proved as to a single element in the actus reus” (Smith and Hogan, 1996, p. 118). Strict liability is also apparent when it has at least one element in the actus reus, even without the related mens rea (University of Pennsylvania, 2003). Strict liability lacks the mens rea element in relation to one of more elements related to actus reus. One of the classic examples of this case was seen in the R v Prince (1875) case where the conviction was based on the fact that the Offences against the Person Act 1861 were violated (University of Pennsylvania, 2003). In this case, Section 55 stated that whoever was to take an unmarried girl, one below the age of 16 years, out of the possession and against the will of her father or mother would be strictly considered liable for a misdemeanour (University of Pennsylvania, 2003). Strict liability is sometimes used interchangeably with absolute liability. As such, confusion is often seen between these two terms. Nevertheless, it must be understood that absolute liability refers to the liability without mens rea in conjunction with actus reus and without any defence like duress or compulsion “other than the fact that the defendant is under 10” (Oxford University, n.d, p. 141). Strict liability is the liability imposed regardless of mens rea (in relation to actus reus); on the other hand absolute liability is liability even with the lack of mens rea (in conjunction with actus reus) “without the availability of any defence other than the defendant is under 10” (Oxford University, n.d, p. 141). In instances when a state has favourable reasons for wanting to reduce certain acts and incidents, the reasons behind such prohibition may be associated with the harm principle, where incidents which would cause harm are being prevented. An example of an act which may be regulated by the state is driving. This is an act which can be defined without having to refer to a mental element (University of Pennsylvania, 2003). There may however be instrumental reasons which can be used to define the prohibition and regulation of the act as a strict liability act. In reviewing the benefits of imposing strict liability, a benefit may be seen in terms of cost. Based on administrative assessments, costs before and during the adjudication of a case would likely be reduced with the application of strict liability policies (Oswald, 1993). The elements which have to be proved and tried in court would be reduced and issues encountered also largely minimized. The element of cost is significant because criminal justice often racks up significant costs (Page, 1986). If states would require proof for the commission of any offence in compliance with the elements of actus reus, the implementation of criminal justice would be largely unaffordable and significantly challenging for both the offended parties and the state. Strict liability crimes would significantly simplify criminal prosecution and eliminate issues with finding liabilities (Page, 1986). Another benefit seen in the implementation of strict liability is that of accuracy (University of Pennsylvania, 2003). Decreasing the number of issues by eliminating some elements of mens rea from the definition of crimes can provide forensic accuracy during trial (University of Pennsylvania, 2003). This accuracy would become apparent because it would also decrease the elements by which the court would establish error; it would also eliminate elements of the mens rea which is often difficult to prove. Knowing and proving what the criminal is thinking is very much difficult because only inferences can be made of a person’s thoughts (Shavell, 1980). Accuracy can hardly be reached during criminal trials. More often than not, laws protect the rights of the defendant. This is seen in the evidence required for criminal prosecution where all elements of crime must be proven beyond reasonable doubt. Strict liability helps tip the scales in favour of the prosecution and that inaccuracies in the verdict would favour the prosecution not the defendant (University of Pennsylvania, 2003). Strict liability also helps regulate and manage corporate activities. Efficiency and accuracy often run in favour of corporate defendants (Simester and Sullivan, 2000). Proof of mens rea is very much difficult to establish. In corporations there is usually not one person who can be considered as an agent and with whom individuals do business with. Applying strict liability would help resolve this difficulty with corporations since liability can be imposed without referring to the defendant’s mental state or motivation (Smith and Hogan, 1996). This application is more significant due to the fact that corporate activity often happens on a large scale and often causes various risks and harms. Moreover, as offenses manage corporate behaviour, prosecutors would likely find it difficult to understand the nature of the defendant’s activities and find fault in such (University of Pennsylvania, 2003). This makes it even more difficult to prove fault in the conduct of certain activities within the corporations. Strict liability policies would ensure that corporations are held liable for their acts without having to prove all elements of the crime. Moreover, the burden of crimes would be endured as a production expense by corporations who initiate activities which place the welfare and lives of people at risk (Simester and Sullivan, 2000). Deterrence is also an important benefit of strict liability policies. With strict liability, more precautions are applied by individuals before they would think of committing an act or violating a law (Donovan, 1958). Strict liability implies a higher level of deterrence because it eliminates mens rea considerations. It also highlights the fact that protecting the general public actually calls for a greater standard of care on the part of those who carry out risky acts. Strict liability would require individuals to take more care in carrying out risk-generating actions and for them to undertake precautions which would reduce mishaps and errors (Wootton, 1981). The threat of criminal liability provides motivations for individuals in risky-generating activities to consider precautions which would not normally be taken. In particular instances where the negative effect of actus reus is widespread, the laws have serious reasons to prompt individuals to avoid any wrongdoing and to prevent any preventable harms from befalling other people (Wootton, 1981). Strict liability can be linked with statutory tort (Tebbens, 1979). The usual implications of risk without fault are based on tort liability, however these concerns can also be concerns of criminal law. This is the impact of the argument that the burden of criminal sanctions may be evaluated as costs incurred by those carrying out risk-generating actions. As was evaluated in the Alphacell Ltd. v. Woodward case involving minor pollution, a low fine would likely be imposed. This may be viewed as a fair imposition which is a necessary offshoot of a business which is causing pollution on the banks of a river (University of Pennsylvania, 2003). Strict liability crimes would impose allocations for costs, supported by a system of serious offences calling for proof of mens rea. Acts may indeed be made criminal based on these considerations, and tort law may even be considered. There are however major benefits in allowing criminal laws, not tort laws, to be imposed (University of Pennsylvania, 2003). For one, there is a stronger impact of establishing that an act is prohibited. Regulating an offence may be used to communicate with the public—informing them that a prohibited act is something which must not be done, rather that something which “must be paid for if done” (University of Pennsylvania, 2003, p. 9). Other considerations in this discussion also establish that tort law calls for a victim offended and affected by the act. However, some acts do not have identified victims or may have unclear victims. On the other hand, even in cases where some victims are apparent, the overall harm caused to offended parties may not equal the harm done to society (Standing Committee on Legal Affairs, 2008). Focusing on tort law may therefore cause under-enforcement of the ruling. Since states handle the cost of detecting and punishing offences, it may be in a better position to regulate certain acts, as compared to private individuals controlling said acts via tort laws (University of Pennsylvania, 2003). Criminal regulation would help support the rule of law by highlighting the consistency upon which rights are based and enforced. Another reason for the appropriate imposition of strict liability policies relates to authoritarian principles. The law requires for criminal laws to be maintained in the hands of individual officials, and that it also would be firmly set among citizens (Standing Committee on Legal Affairs, 2008). The primary consideration of a legal prohibition is to manage social interactions by implementing firm standards of behaviour and regulating the diverse standards that individuals have. This coordination would not be possible if individuals were not covered under the law because they have different personal beliefs and values (Standing Committee on Legal Affairs, 2008). This is a primary expectation in most wrongful acts which must be based on standards which are not dependent on the beliefs and standards of defendants. Assuming that the justifications for a law are sufficient to justify the implementation of a common standard, these justifications must be utilized to ensure strict liability (University of Pennsylvania, 2003). The concept of strict liability was discussed by Roadpeace London (2008), an organization charity for road traffic victims. They point out that as far as motor vehicle regulations, strict liability is the fairer policy. They discuss that in most road accidents, the pedestrians or cyclists often suffer and are injured or killed. And yet, it is unfortunate to note that the laws place the burden on pedestrians to prove injury and fault on the part of the drivers. The Court of Appeals held in the case of Eagle v. Chambers that pedestrians must not be held more than 50% liable. The court pointed out that it would be unnatural for pedestrians to be found more responsible than the driver for injuries unless the pedestrian himself deliberately stepped in front of the moving vehicle. Motor vehicle owners have a choice of reducing the risk to other road users by using vehicles which have higher road safety settings (Roadpeace London, 2008). Vehicle owners can also choose tires which do not leave skid marks and this can often make it difficult to prove speed during collisions. The rule of no witness no justice can often take over in this case, leaving the victim pedestrians without any legal relief for the crime committed against his person (Roadpeace London, 2008). Strict liability policies are therefore a valuable policy in these cases because it helps equalize the position of the driver and that of the pedestrian. Drivers would therefore be prompted to make safer vehicle choices, to drive safely on the streets, and to work towards reducing their impact on the pedestrians. Strict liability policies therefore promote road safety. Imposing the strict liability system is very much in line with the UK’s driver training approach, an approach which supports defensive driving and with drivers being more vigilant about avoiding collisions (Roadpeace London, 2008). The UK Highway Code imposes that the speed limit is the highest limit and it means that driving at speeds higher than the limit is not allowed, regardless of conditions. Speeds which are higher than the limit are dangerous and must be reduced especially when sharing these roads with other pedestrians, with cyclists, horse riders, and other road users (Roadpeace London, 2008). Variations in modes of transport and traffic policies also highlight the need for strict liability. Soundless electric cars and motor vehicles are now being supported as environment-friendly options. Strict liability policies would highly support the need for drivers to “give way to pedestrians crossing on the green signal” (Roadpeace London, 2008, p. 3). The UK has long been known for its bad records on child pedestrian safety with statistics in 2006 registering a 20% increase (from 2005) in child deaths due to road accidents. Children below 12 years cannot be held criminally responsible and therefore strict liability policies would hold these road users summarily liable for their actions (Roadpeace London, 2008). The concept of fairness plays a significant role in rationalizing the strict liability system. Fairness implies that in instances where both parties are deemed blameless, the party who caused the risk or the harm must therefore bear the fault of the loss (Oswald, 1993). The party who usually causes the harm would likely derive the most economic benefit from the activity; therefore, he must also bear its risks and costs. Strict liability would ensure fair results as the defendant would claim more benefits from an activity, all the more that he must also pay for the costs of such benefits. It is also appropriate to hold defendants strictly liable for their activities because some costs must be internalized (Oswald, 1993). This concept is based on the idea of economic efficacy and free economy. Some activities have natural risks or harm. Therefore, the injuries which arise from such activity must be also be borne by the person carrying out such activity. “Societal welfare is maximized when the price of a good accurately reflects both its true cost and the degree of consumer demand for the product” (Oswald, 1993, p. 595). In this setting, strict liability would call for economic resources being allocated in ways which would maximize social welfare (Oswald, 1993). Conclusion Based on the above discussion, strict liability must be retained because it provides social benefits which could not be obtained through any of the supposed alternatives to it and the injustice caused by it is often exaggerated. Strict liability policies are fair policies which would equalize the impact of activities on the people, especially those who are vulnerable to its risks. It is also a strong deterrent to crimes and to reckless activities. When strict liability would be imposed on individuals, they would be prompted to be more careful in their activities and to avoid the commission of crimes. In effect, strict liability shifts the burden of proof on the defendant, especially for crimes where benefits from the activity are significantly gained by the defendant. In other words, strict liability policies helps promote a safer and a more accountable society for all individuals, regardless of economic, social, and political standing. References Donovan J, in St Margaret’s Trust Ltd 1958, 2 All ER 289, 293 Oswald, L. 1993, Strict Liability of Individuals Under CERCLA: A Normative Analysis, B.C. Envtl. Aff. L. Rev., vol. 20(579), viewed 09 January 2012 from http://lawdigitalcommons.bc.edu/ealr/vol20/iss4/2 Oxford University (n.d) Strict Liability, viewed 09 January 2012 from http://www.oup.com/uk/orc/bin/9780199578665/cardetal19e_ch06.pdf Page, T. 1986, Responsibility, Liability, and Incentive Compatibility, Ethics, vol. 97(240) Reid, K. 2008, Strict Liability: Some Principles for Parliament, The Principles on which Strict Liability Is Imposed, Statute Law Rev, vol. 29 (3): pp. 173-194. Roadpeace London 2008, Strict liability – a civilised compensation system, viewed 09 January 2012 from http://www.fevr.org/new/wp-content/uploads/2010/12/Strict-liability-discussion-paper-April-2008.pdf R v Prince (1875) LR 2 CCR 154 Shavell, S. 1987, Economic analysis of accident law, USA: Harvard University Press Simester, A. & Sullivan, G. 2003, Criminal Law: Theory and Doctrine (2nd ed.), London: Hart Smith, J. & Hogan, B. 1996, Criminal law: cases and materials, London: Butterworths. Standing Committee on Legal Affairs, 2008, Strict and Absolute Liability Offences, viewed 09 January 2012 from http://www.parliament.act.gov.au/downloads/reports/07StrictLiability.pdf Tebbens, H. 1979, International product liability: a study of comparative and international legal aspects of product liability, London: BRILL. University of Pennsylvania, 2003, Is Strict Liability Really Wrong?, viewed 09 January 2012 from http://www.law.upenn.edu/academics/institutes/ilp/200304papers/simesterpaper.pdf Wootton, B. 1981, Crime and the criminal law: reflections of a magistrate and social scientist, London: Stevens. Read More