Strict Liability (criminal) - Discussion of English Law

Discussion of English Law

Under the common law 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 AC 132, 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.
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. 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 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:

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.