There Should Never Be a Strict Liability Element in a Criminal Law Offence - Essay Example

There should never be a strict liability element in a criminal law offence. There should never be punishment without fault. Introduction The presumption of strict liability within the criminal law, most the legal experts feel is iniquitous in nature (McAuley and McCutcheon, 2000). There is a widespread consensus amongst these experts, which contend that, the strict liability convicts (also referred to as quasi-crimes, or public welfare offences) in strict moral terms, are innocent (Simester, 2005). In criminal law, strict liability is a culpability for which mens rea or ‘guilty of the mind’ need not be proven, as regards to the multiple aspects comprising of the actus reus of the actual act of guilt, though awareness, recklessness, or intention, may be necessary while examining the other elements of a particular offence (Reid, 2008, 173-194). Criminal liability is a stringent provision since the defendants are likely to be convicted even if they were truly unaware of one or the multiple factors that labelled their acts as criminal offense. The defendants therefore, may not be culpable or guilty, in actual sense, i.e. absence of criminal negligence, the minimum blameworthy status within mens rea. Thus, one may argue that strict liability in a true sense is an inappropriate use of the criminal law which, owing to the grave implications that it have on a ‘wrongly’ convicted defendant, should be made permissible only for the regulating or governing serious crimes committed by the culpable miscreants. This article will critically examine various cases and analyse whether there should not be a strict liability element within a criminal law offence, and there should never be punishment without fault. Discussion What are strict liability laws and their applications: Strict liability laws enacted in the 19th century aimed at elevating the working conditions and establishing standard safety norms within factories. The necessity to ascertain mens reas against the factory owners was not easy which culminated in very few prosecutions. The strict liability offences were created so as to tackle the factory owners more effectively and to ensure that the rate of convictions increased. In the modern context, common strict liability offences today include the driving over the prescribed speed limit and selling of alcohol to underage persons. Although the contentious issue here pertains to the fact that a person’s state of mind with which he/she acts should be made extraneous to his/her criminal liability (as opposed to the notions of how to deal with a defendant should he be proven guilty) it however, does not represent the law. This aspect is particularly relevant in the case of ‘real crimes’ where defendants are generally not held as criminally liable, for their conduct, if they are innocent (Ashworth and Blake, 1997). In a large number of offences, however, a prosecuted may face convictions even though his behaviour was unintentional, was not aware, not reckless or negligent, as regards to a necessary element of the offence charged. In such cases, an individual is liable to face punishment though there may be a total lack or absence of any wrongdoing on his part, as per the elements in question, which come under strict liability laws (Lemon, 1979). The debate: These laws are applicable either in ‘regulatory offences’ that administer social behaviour, where the stigma associated with the convicted person is minimal. The laws are also applicable in cases where the society is concerned with the harm prevention and reduction, and wants to obtain high deterrent values for a certain offense. However, a closer look at the various cases will reveal that are chances that some of the imposition of strict liability may function unjustly in certain isolated cases. As for example, if we study the case Pharmaceutical Society of Great Britain v Storkwain we will find that a pharmacist sold drugs to a patient who had produced a medical prescription that was a forged (Pharmaceutical Society of Great Britain v Storkwain, 1986). Although, the pharmacist was innocent in this case, and even the House of Lords pronounced his innocence, he nevertheless received a sentence of being guilty. Here, under the strict liability law, the justification given was that drug misuse being a serious social problem and pharmacists must be inspired to take more than perfunctory interest to test the veracity of the prescriptions, before supplying any buyer with drugs. Similarly, where culpability gets accredited to another, through ‘corporate liability’ or ‘vicarious liability,’ the effect of that accreditation may be strict liability, even though in some instances the defendant may possess a mens rea accredited, thus theoretically he/she will be culpable as the real criminal. In a majority of the cases pertaining to strict liability, the viewpoint holds that mistake or ignorance, however justified, as regards to specific elements of the actus reus of an offence cannot be treated as excuses, since no mens rea is necessary for thesis particular elements, although it may be required in connection to other elements. This is evident in the cases of Hibbert (R v Hibbert, 1869) and Prince (R v Prince, 1875). In R. vs. Prince, the charge consisted of leading an underage (below 16 years of age) unmarried girl out her father’s possession against the latter’s expressed consent, contrary to the Offences Against the Person Act 1861, s 55 (this act does not exist anymore). Prince was aware (hence knowledgeable) that the girl was under her father guardianship or custody, but he sincerely believed, (proven as true, on facts based on reasonable grounds, and presented evidences) that the girl was 18. Had the girl really been 18, the question of offence would not have arisen in the first place. Despite strong supporting evidences in favour of Prince he was convicted by the Court for Crown Cases Reserved, that justified by their decision by stating that under such circumstances knowledge that the girl was below 16 years of age was not necessary. The Court was clearly of the view that the knowledge that the girl was still under the possession or custody of her father was necessary to be proven, and when the requisite evidences were submitted, they were not disputed. Thus, we find another instance where an innocent person had been help guilty for no actual fault of his under the jurisdiction of the strict liability laws. Prince is different from Hibbert case, where we find that Hibbert’s conviction for an offence under the same section stood nullified, owing to evidences presented in the court that showed beyond doubt that Hibbert was not aware of the fact that the girl he abducted was in somebody’s custody or possession. The jury seems to have been satisfied with the presented evidences that the defendant did not know that the girl was under someone’s guardianship. There are also isolated cases where the courts have held that an offence does not require any mens rea. An example of such instances comprise of the offence of driving with high alcohol levels in the blood, in contrast to the Road Traffic Act 1988, s 5 that was stated in DPP v H as not proof was required for any mens rea (DPP v H, 1997). Under the common law, crimes require proof of mens rea with the exception of cases pertaining to criminal contempt of court, public nuisance, and in charges of serious libel. In cases of liability that comes under a statute, there have been a large number of perceived inconsistencies. However, in Sweet v Parsley [1970] AC 132, Lord Reid framed guidelines for all future cases where offence is criminal, as against charges that are quasi-criminal: 1. in cases where a section does not mention mens rea there is an assumption that, in order to realise Parliament’s will the words conveying mens rea must be included into the provision; 2. Under general principles, if a penal code is capable of double interpretations, then the interpretation that is more favourable toward the defendant has to be accepted; 3. It is essential to take a look outside the Act and explore all relevant circumstances in order to establish signs of offense. Thus, we find that guidelines are created where one is not held a de fcato criminal, without any logical evidence (the point no. 3 categorically mentions that one must seek beyond the act). Nagel once observed that strict liability does indeed have its legal uses, but is irrational from a moral viewpoint, where a person who may be really innocent is held guilty and convicted (Nagel, 1979). From the ethical or moral view, Nagel’s observations were correct, and the punishment meted and the subsequent moral condemnation of the innocent and blameless actions is not correct. Conclusion Looking at the various instances where innocents were sentenced, owing to the strict liability laws, it is necessary that the court, when dealing with a liability element in a criminal law offence, examine the overall nature and objectives of the statute. If the objective is to bring in quasi-criminal offences, strict liability will be permissible to produce fast penalties in order to advocate all future acquiescence, as for example, in case of fixed-penalty, for all parking offences. However, if the issues involved are important and the sentencing harsher, examinations must be made as regards whether the reading in mens rea criteria will hinder the Parliaments objective in alleviating that rate of certain offenses. Here, it must be remembered while trying to protect the defendant that if he/she manages to flee the liability clause rather too easily by pleading lack of knowledge, then this would serve to defeat the basic purpose of correcting a "mischief" from recurring. Bibliography Ashworth, A., and M. Blake, M., 1996. The Presumption of Innocence in English Criminal Law. Criminal Law Review May 306-17.  DPP v H (1997) 1 WLR 1406 McAuley, F., and  McCutcheon, P., 2000. Criminal Liability. Dublin: Round Hall, Sweet and Maxwell. Pharmaceutical Society of Great Britain v Storkwain [1986] 2 all er 635. Nagel, T., 1979. "Moral Luck." Mortal Questions. Cambridge: Cambridge University Press. R v Hibbert [1869] LR 1 CCR 184. R v Prince [1875] LR 2 CCR 154. Reid, K., 2008. Strict Liability: Some Principles for Parliament. Statute Law Rev 29 (3): 173-194. Simester, A., (ed) 2005. Appraising Strict Liability. Oxford: Oxford University Press. Sweet v Parsley [1970] AC 132.   Whitehouse v Lemon [1979] AC 617, per Lord. Edmund-Davies, p. 656 Read More