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CRIMINAL LAW I
LECTURE NOTES – STRICT LIABILITY
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INTRODUCTION

It is a general principle of criminal law that an act does not make a person guilty unless
his mind be also guilty - “Actus non facit reum nisis mens sit rea”

This idea is based on the fact that where a person lacks the requisite mental element in
many cases it would be wholly unfair to find that person guilty of an offence. For
example, the person who is walking in a supermarket and a pack of biscuits unknowing
falls into his or her pocket – no one can argue that to finding that person guilty of theft
would be unfair. This is especially so as the prosecution for crimes is normally
accompanied by heavy fines, taking away a person’s liberty and/or a certain negative
social stigma.

Notwithstanding the above, in criminal law there are certain crimes which do not require
the proof of mens rea – these are referred to as “strict liability” crimes. Strict liability is
liability for which mens rea does not have to be proven in relation to one or more
elements comprising the actus reus 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.

These offences are often created by statute (as at common law historically there were few
such offences, that is public nuisance and criminal libel and parts of contempt of court)
and are generally said to be regulatory in nature as they are created to regulate behaviour
(often important health and safety concerns), also there is no real moral issue and usually
less stigma attached to the offence.

Some of the characteristics of these offences are therefore that they are:

1. usually regulatory in nature

2. May be committed by corporations

3. Usually punishably by a fine

4. Generally serves as a deterrent and

5. Helps to promote high standards of care in areas of public concern.

There is much criticism however in English Law regarding these offences as the criminal
Law generally only punishes offenders that are “responsible” for their actions. It is
therefore noted to have operated unfairly in certain cases as, under strict liability, persons
can be held criminally liable even though they took reasonable care to prevent the harm
occurring. In many instances, persons are therefore required to take unreasonable steps to
prevent the result.

An example of statute creating a strict liability offence which operated in such a way is in
England, that is, the Medicines Act 1968. Sec. 58(2) of that Act provided that no person
shall sell by retail specified medicinal products except in accordance with a prescription
given by an appropriate medical practitioner. See Pharmaceutical Society of Great
Britain v Storkwain (1986) 2 ALL ER 635 below.

Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635

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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. They were no findings that the defendant acted dishonestly, improperly or
even negligently. So far as it appeared the forgery was sufficient to decieve the
pharmacist without any shortcoming on his part.

The House of Lords found that the pharmacist had been rightly convicted. The Court
cited the following principles stated by Lord Scarman in the case of Gammon (Hong
King) Limited v A-G of Hong Kong[1984] 2 All ER 503:

In that case Lord Scarman stated:

(i) there is a presumption of law that mens rea is required before a person can be
held guilty of a criminal offence;
(ii) the presumption is particularly strong when the offence is “truly criminal” in
character;
(iii) the presumption applies to statutory offences and can be displaced only if this
is clearly or by necessary implication the effect of the statute;
(iv) the only situation in which the presumption can be displaced is where the
statute is concerned with the issue of social concern; public safety is an
issue;
(v) even where a statute is concerned with such an issue, the presumption of
mens rea stands unless it can be shown that the creation of strict liability
will be effective to promote the objects of the statute by encouraging
greater vigilance to prevent the commission of the prohibited act.

The justification here 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.

Note the facts of Gammons which are as follows:

The D’s here were involved in building works in Hong Kong, when part of a building
they were constructing fell down. It was found that the collapse had occurred because the
builders had failed to follow the original plans exactly. Hong Kong building regulations
prohibited diverting in any substantial way from the plans.

On appeal against conviction, the D’s argued that they were not liable because they had
not known that the changes they had made were substantial ones. However, the court held
that the relevant regulations created the offences of strict liability and the convictions
were upheld.

It was confirmed here that although there is a presumption of law that mens rea is
required before a person can be found guilty of a criminal offence, this presumption
could be displaced by strict liability offences.

The PC here admitted that the fact that the offence was punishable with a fine of
$250,000 and imprisonment for 3 years was “a formidable point” but found that “there is
nothing inconsistent with the purpose of the ordinance in imposing severe penalties for
offences of Strict Liability.”

Also note the earlier case of : Sweet v Parsley [1970] AC 132.

In that case, D was a landlady who did not live on the premises and only visited
occasionally. Her lodgers smoked cannabis and she was charged with being concerned in
the management of the premises which were used for the purpose of smoking cannabis. It
was not proved that she knew of the smoking. 

The HL quashed the conviction and said it was not an offence of strict liability because
knowledge of the use of the premises was essential to the offence and since she had no
such knowledge, she did not commit the offence.

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Here Lord Reid laid down the following guidelines for all cases where the offence is
criminal as opposed to quasi-criminal:
1. Wherever a section is silent as to mens rea 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. To convict, guilty mind is required.

2. 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.

3. Implied: Where a case can be considered truly criminal so that the stigma attached
to it is great- the greater the likelihood that a sense of blameworthiness or mens
rea is required and the lesser the likelihood that Parliament intended to create a
strict liability offence.

STATUTORY INTERPRETATION

The fact that most cases of strict liability are found in statutes leads to the need for
statutory interpretation to interpret whether Parliament intended the offence to be a strict
liability offence or not as the Courts in all instances are expected to give effect to the will
of Parliament as expressed in the statues. In light of this, the principles of statutory
interpretation operate and the Courts are supposed to try to discover the intention of
Parliament from the wording of the statute.

One principle of statutory interpretation as noted in the case of Gammon (Hong King)
Limited v A-G of Hong Kong[1984] 2 All ER 503 aforesaid is that in statues creating
criminal offences there is a presumption that mens rea will be required even where it is
not specifically mentioned.

Note however this presumption is just that - a presumption and as such it is rebuttable in
certain circumstances. Below are some of the instances where a court may hold that the
presumption has been successfully rebutted.

(i) The wording of the Act. – where the words “permitted” or “allowed” are
used, for example, where it is an offence to permit or cause another to do a
certain act, the prosecution will normally be expected to prove that the
accused was aware of the circumstances which made the act unlawful or that
he deliberately avoided finding out. For example: if it is an offence to permit
or allow another to drive a motor vehicle with defective brakes, the
prosecution would have to prove that the accused knew that his vehicle brakes
were defective before he could be said to have permitted or allowed the other
to drive a motor vehicle with defective brakes: See James & Son Ltd v Smee.
On the other hand where a statute makes it an offence to drive or use a vehicle
with defective brakes the courts have tended to say that the prosecution need
not prove that the driver or user knew that the brakes were defective: Green v
Burnett

(ii) Where the word “cause” is used so that it is an offence to cause something to
happen, the House of Lord have held in the case of Alphacell v Woodard
(1972) that the Courts should adopt a commonsense approach - of reasonable
people could say that the accused has “caused” something to happen

Alphacell v Woodard(1972)

The D’s were a company accused of causing polluted matter to enter a river. They were
using equipment to prevent any overflow into the river, but when the mechanism became

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clogged with leaves the pollution was able to escape. There was no evidence that the D’s
had been negligent, or even knew that the pollution was leaking out. 

However the H of L held that in the normal meaning of the word, the company had
“caused” the pollution to enter the water and their conviction was upheld though had
taken reasonable care to prevent the result from occurring.

(iii) Where the word “possession” has been used:

The word possession has caused much difficulty as it relates to the interpretation of
statutes and the hardship occasioned by strict liability has led courts to hold that in some
instances the word “possession” has both a physical aspect as well as a mental aspect, so
that not only must you be in physical possession, you must know that you are in physical
possession.

What is clear from case law is that where a person does not know that he is in possession
of a drug, for example: the drugs may have been slipped into his/her pocket unbeknownst
to him/her he/she is not thought to be in possession of the drugs: Warner v
Metropolitan Police Commissioner (1968).

Notably however the mental element does not require that you know the exact nature of
the drugs in your possession. It just means that you must be aware that you are in
possession of the drugs.

For example: if you are knowingly in possession of some tablets which you think are
panadol but are in fact compressed cocaine tablets you will be convicted of being in
possession of that drug. Unless the controlling legislation speaks to :knowingly being in
possession” or unless one of the defences provided for under the act would be mistake of
fact, then you would be properly convicted under the act which prohibits possession of a
substance, notwithstanding that you did not know the exact nature of the drug you had in
your possession.

Note: Container cases:

Where however the drugs are given to you in a container, and you are mistaken as to the
nature (category) and not the quality (features) of the drugs and have had no
opportunity to examine the contents of the container then you would not be deemed to
be in possession of the drugs. For example, if someone gave you the drugs in a container
and you thought it was a reel of film, you did not get a chance to examine it and it you
were caught with it, then it would be a mistake of nature and you would not be found to
be in possession of the drugs. Where however you thought it was aspirin but it turned out
to be heroin, it would be a mistake of quality and you would be held liable for
possession of the act notwithstanding that you were unaware of the illegality of the
substance, as this would be a mistake in quality, you knew that you were in
possession of a drug . ment

The case of Warner v Metropolitan Police Commissioner [1968] 2 All ER 356, is most
instructive on this point.

In that case, the defendant was stopped by the police when found with 2 boxes.  One of
the boxes contained scent, and the other contained 20,000 tablets containing
amphetamine sulphate, a prohibited drug under the Drugs (Prevention of Misuse) Act
1964.  The defendant claimed that he thought that both boxes contained scent.  He was
found guilty, and was sentenced to two years’ imprisonment.

In that case, Lord Pearce noted:

“I think that the term “possession” is satisfied by a knowledge only of the of

the thing itself and not its qualities, and that ignorance or mistake as to its
quality is not an excuse. This would comply with the general meaning of the
word “posess.”Though I reasonably believe the tablets which I possess to be
aspirin, yet if they turn out to be heroin I am in possession of heroin tablets.

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This would be so I think even if I believed them to be sweets. It would be

otherwise if I believed them to be something of a wholly different nature. At
this point a question of degree arises as to when difference in quality
amounts to difference in kind. That is a matter for a jury who would
probably decide it sensibly in favour of the genuinely innocent but against
the guilty.”

Note the full judgment of Lord Pearce in the aforesaid case of Warner v Metropolitan
Police Commissioner (1968)

It is submitted that this distinction is a fanciful invention of judges, as where a statute

speaks to the word “possession” opposed to “willfully being in possession” then
knowledge of the nature and quality of the drug should be irrelevant. Notwithstanding the
aforesaid submission, it is clear that this distinction has been made to help mitigate the
often harsh results of the application of strict liability.

Where however drugs are not kept in containers it would appear as though stricter
provisions apply. See case of Marriot [1971] 1 All ER 595

(iv) Where the word “knowingly” is used. – Courts have interpreted sections of an
Act to be strict liability section where the word “knowingly” appears in one
section of the Act and not another or in some but not all subsections of a given
section. Where this happens there is the presumption that the absence of the
word “knowingly” imposes a strict liability offence. Note however it is
merely a presumption.

(v) Where the word ‘willfully’ and ‘maliciously’ is used it connotes the need for
some kind of mental element and as such rules out the offence as a strict
liability offence.

Note, there is no sure way to determine if a statue has imposed strict liability, it is a
matter of interpretation for the courts.

Looking at Strict Liability in its Social Context.

(i) Whether the offence is ‘truly criminal’ in character versus of course a purely
regulatory one or a “quasi-crime” here the court often looks at how the
offence is view in the public’s eye – that is the level of stigma attached. The
greater the stigma attached, the less likely the courts will interpret the section
as a strict liability section.

(ii) Whether the prohibition is general or special? That is, whether the provision is
of general application or relates only to those following a particular trade,
profession or special activity. In the latter type of case (regulatory) the court
will generally be more ready to hold it as Strict Liability. Therefore most SL
offences regulate the sale of food, drugs, management of industrial activities
and the conduct of licensed premises etc. As noted by Lords Reid in the case
of Warner v Metropolitan Police Commissioner:

“….there is a long line of cases in which it has been held with regard to less
serious offences that absence of mens rea was no defence. Typical examples
are offences under public health, licensing and industrial legislation. If a
person sets up as say a butcher, a publican, or manufacturer and exposes
unsound meat for sale, or sells drink to a drunk man or certain parts of his
factory are unsafe, it is no defence that he could not by exercise of reasonable
care have known or discovered that the meat was unsound, or that the meat
was bad or that his premises was unsafe. He must take the risk and when it is
found that the statutory prohibition or requirement has been infringed he must
pay the penalty. This may well seem unjust, but it is a comparatively minor
injustice and there is good reason for it as affording some protection to his
customers or servants or to the public at large. Although this man might be

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able to show that he did his best, a more skilful or diligent man in his position
might have done better, and when we are dealing with minor penalties which
do not involve the disgrace of criminality, it may be in the public interest to
have a hard and fast rule.”

(iii) Even where a statute is concerned with the above issues, the presumption of
mens rea may stand unless it can also be shown that the creation of strict
liability will be effective to promote the objects of the statute by encouraging
greater vigilance to prevent the commission of the prohibited act.

See: R v Blake (1996) The Times, 14 August.

Facts: - Investigation officers heard an unlicensed radio station broadcast and

traced it to a flat where the defendant was discovered alone standing in front
of the record decks, still playing music and wearing a set of headphones.
Though the defendant admitted that he knew he was using the equipment, he
claimed that he believed he was making demonstration tapes and did not know
he was transmitting. The defendant was convicted of using wireless
telegraphy equipment without a licence, contrary to s1(1) Wireless Telegraphy
Act 1949 and appealed on the basis that the offence required mens rea.

The Court of Appeal held that the offence was an absolute or a strict liability
offence.

The Court applied Lord Scarman's principles in Gammon (noted above) ( here
the presumption was deemed rebutted because public safety was threatened)
and found that, though the presumption in favour of mens rea was strong
because the offence carried a sentence of imprisonment and was, therefore,
"truly criminal", yet the offence dealt with issues of serious social concern
in the interests of public safety (namely, frequent unlicensed broadcasts
on frequencies used by emergency services) and the imposition of strict
liability encouraged greater vigilance in setting up careful checks to avoid
committing the offence.

(iv) The Courts are also influenced by the degree of social danger which in their
opinion will flow from the breach of the particular prohibition.

Such as: Dangerous Drugs – Warner v Metropolitan Police Commissioner

(1969) and Pollution – Alphacell v Woodard (1972)

(v) Severity of the Punishment – It is often argued that the provision for a severe
maximum punishment shows that Strict Liability could not have been
intended by Parliament.

Note that because an offence is a strict liability offence it does not follow that there are
no defences to it, as the same statute which creates the offence may set out certain
exceptions which the defendant may come under. Furthermore in certain strict liability
offences automatism may be pleaded, and where pleaded, the defendant is saying that
he/she did not actually commit the actus reus as he/she was in a state of automatism.

ARGUMENTS FOR AND AGAINST STRICT LIABILITY

 A number of reasons have been advanced FOR enforcing strict liability offences,
that is:

- it is easier to enforce – as there is no need to prove mens rea;

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- it is aimed at ensuring, particularly, business owners and corporations, maintain high

standards – social interests require a high level of care and attention, persons are more
likely to maintain high standards if they know that ignorance of the law or excuse will not
excuse them from liability.

- it is considered desirable that those who make a huge profit from harm caused should
pay for it, whether it intended or not;

- the imposition of strict liability has some deterrent value see Blake above where the CA
in relation to the Wireless Telegraphy Act 1949 stated that “the imposition of strict
liability would encourage greater vigilance on the part of those establishing or using a
station, or installing or using the apparatus, to avoid committing the offence or would
operate as a deterrent.”

- Strict liability is the most efficient and effective way of ensuring compliance with
minor regulatory legislation and the social ends to be achieved are of such
importance as to override persons who may be free of moral turpitude.

- Only slight penalties are usually imposed and it does not carry the same stigma
normally associated with a criminal offence.

 Arguments AGAINST its use have also been canvassed that is:

- it violates a fundamental principle of penal liability; namely that there should be

no liability without proof of fault;

- there is no empirical evidence that a higher standard of care results from the
imposition of strict liability. If a person is taking every reasonable precautionary
steps, it is likely that he will not take any further steps as he knows no matter how
much care is taken it will not serve as a defence in the event of a breach.

- it is wrong to punish those who have taken steps to prevent the harm in question;

- it is doubted whether it will really act as a deterrent for huge corporations that will
find it better to pay a comparatively small price where found guilty of a strict
liability offence rather than comply with it if is particularly inconvenient or
expensive procedures.

- Perceived injustice of conviction may lead to a disrespect for the law.

VICARIOUS LIABILITY

Vicarious Liability is liability for the acts of another. The general rule in the criminal law
is that there is no vicarious liability, that liability is personal and a person is not liable for
the acts of others. This reflects the general principle that a crime is composed of both an
actus reus (the Latin tag for "guilty act") and a mens rea (the Latin tag for "guilty mind")
and that a person should only be convicted if he, she or it is directly responsible for
causing both elements to occur at the same time. Thus the practice of holding one person
liable for the actions of another is the exception and not the rule in criminal law. True
Vicarious Liability is often said to confined to the law of Tort where the principle is that
the Employer is liable for all acts of the employee performed during the course of his
employment. See Lloyd v Grace, Smith and Co. (1912) and Huggins (1730)

An employer can be held liable for his employee’s crimes as a general rule only where he
is a participant in them subject to two exceptions at common law, that is, public nuisance
and criminal libel. There are however several other exceptions created by statute which
are generally contained within two main headings:

(i) The Delegation Principle

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Imputes the mens rea of the employee to whom the task or compliance with the duty has
been delegated to by the employer, making the employer liable for the breach of duty.
This is based on the fact that these statutory provisions are largely regulatory and it
would be impossible for the employer to comply personally with all of their requirements
and therefore impossible to prosecute, if it was framed with the employer or delegator
only in mind.

An excellent example of same can be seen in the case of Allen v Whitehead (1930) –

Here D the occupier of a café though he received the profits of the business did not
manage it. Occupier having received a warning from the police instructed the manager
not to allow prostitutes to congregate on the premises and had a notice to that effect
displayed on the wall.

He visited the premises once or twice a week and there was no evidence that any
misconduct took place in his presence. However on a number of occasions known to the
manager prostitutes met together and remained there for hours.

Held: That D was liable for breaches of s.44 of the Metrpolitan Police Act- “that is
knowingly permitting or suffering prostitutes or…. to meet together and remain in a place
where refreshments are sold and consumed.”

- and that his ignorance of the actual facts was no defence as the knowledge of the
manager to whom he delegated the authority of running the business was imputed to him.
The occupier was responsible for the acts of the manager as he employed the
manager.

This case was applied in Linette v Metropolitan Police Commissioner (1946)

There is some degree of doubt as to the degree of delegation which is necessary to bring
the principle into operation. See Vane v Yiannopoullos ((1865) compare with Howker v
Robinson

In Vane v Yiannopoullos the Court determined that there must be a complete delegation
of the licensee or manager’s duties and reponsibilities.

Here The House of Lords held that a restaurateur was not guilty of what would now be
knowingly selling intoxicants to unpermitted persons. One of the waitresses, contrary to
the restaurateur’s instructions, sold an intoxicant to a customer who was not having a
meal. The restaurateur had gone to the basement at the time, but he had not delegated
control of the restaurant to the waitress.

By a three to two majority in the House of Lords it was held that there was only a partial
delegation, which was not sufficient for a conviction. Note should be made here as well
of the dictum of varying law lords as some doubt was cast on the validity of the
delegation principle.

Cf. Howker v Robinson (1973)

A licensee who was serving in the public bar was held liable for an illegal sale made by
his barman in the lounge. Here though it did not seem to have been a case where the
whole authority of the licensee was transferred or he was not managing the business
himself, the Court found that there had factually been a delegation and that this point had
therefore been properly decided by the magistrates.

Nb. The criticisms of this authority as having gone too far with the delegation principle.

(2) Where the Agent’s act is deemed to be the Act of the principal – Extensive
Construction Principle

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Vicarious Liability can also be said to arise in what is sometimes known as cases of
EXTENSIVE CONSTRUCTION where the law may simply deems the actions of an
employee to be those of the employer.

This is the result of an extended construction of certain verbs (“selling” or “being in

possession”) that appear in criminal statutes. It commonly occurs where something is
being sold; see, for example Coppen v Moore (No. 2) [1898]. The accused, who owned a
number of shops (and therefore could not be present in all of them for all of the time),
was convicted of selling goods bearing a false trade description. Contrary to his
instructions, one of the assistants had sold an American ham as a “Scotch” ham.

Here the law deemed D to be the “seller” though he was not the actual salesman.

Liability of Corporations

In English law, a corporation can only act through its employees and agents so it is
necessary to decide in which circumstances the law will apply to hold the corporation
criminally liable for the acts of its employees or agents.

(i)By the law of agency or vicarious liability that is the corporation will be held VL for
the acts of its employees and agents where a natural person would have similarly been
held liable.

(ii) Notably however, a corporation also be held “personally” liable for acts committed by
their controlling officers, that is those persons who are deemed the “directing mind and
will” of the company, who when acting on the company’s business are considered to be
the embodiment of the company or of sufficient standing within the corporation to be
identified as part of the corporation. Their actions and mens rea can be seen as
representing that of the company. See Lord Reid’s dictum in Tesco v Nattrass (1972)

Often applied in cases of non-feasance that is where a statute imposes a duty upon a
corporation to act and it fails to act.

See: Birmingham and Gloucester Railway Co (1842) where a corporation was convicted
for failing to fulfill a statutory duty.

NB. An extension of the principle in the Meridian case [1995] WLR 413 where it stated
that whether an act is to be attributed to a corporation is a question of the construction of
the particular statute so that the statute may impose corporate liability in respect of an
employee who could be said to be the directing mind and will of the corporation under
the primary rules of attribution.

Aggregation Theory

The theory here is that the court can aggregate the mental status and actions of the
employees of the company, and if together they provide sufficient mens rea for the crime
then the company can be convicted, even though no one employee had the mens rea.

Although this theory has received some support among academics it was rejected in R v
HM Coroner for East Kent ex p Spooner where Bingham LJ stated that “ as the law
does not permit the conviction of an individual person based on aggregating other
people’s mens rea, the same should be true for a company.” A rejection of this theory was
also noted by the Ca in Attorney General’s reference (No2 of 1999)

Why is there a need for vicarious liability?

1. The offence may be one that can only be committed by the employer. Example he is
the holder of the license and only the licensee can commit the offence.

2. It may be very difficult to prove fault on the part of the employer, so the actus reus and
and mens rea of the employee are relied on.

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3. For policy reasons the employer may be regarded as the appropriate target.

See Lord Russell’s dictum in Coppen v Moore above.

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