What is Strict Liability?

Strict liability is an interesting concept in the criminal justice system. In some crimes there is a guilty act (actus reus) which has an identified consequence, but the defendant did not know about, or intend for that consequence. Despite this lack of a guilty mind (mens rea) liability is said to be strict to the guilty act, and thus a crime has been committed without mens rea being present in all the elements of the actus reus. It’s a difficult concept to grasp, and the best way to do so is look at some criminal case law. This article refers to UK case law, but many of the concepts hold true for other Western legal systems.

People often make the mistake of saying that strict liability is a crime absent of mens rea, but in fact complete absence is extremely rare. Where an offence requires no mens rea, and the actus reus need not be voluntary, the crime is said to be one of absolute liability. It is more common that mens rea is missing for one element of the actus reus.

There is a presumption in court that mens rea is required, and this was demonstrated in the case of Sweet vs. Parsley (1969) when a landlady was found not guilty on appeal of being concerned in the management of premises at which cannabis was smoked. It was found that since she could not reasonably prevent the smoking of cannabis, or be shown to be aware of it, that there was no mens rea, and that this was not a crime of strict liability.

If a defense successfully rebuts mens rea then the only opportunity for the prosecution is to establish that it is a crime of strict liability. This is most commonly achieved in regulatory offenses and public danger offenses. Regulatory offenses, such as those governing some aspects of employment law, usually have small penalties, and having them as strict liability makes it easier to enforce them. Public danger offenses are another example of this, and the case of Steele in 1993 provides a good example. The defendant was found guilty of possession a firearm even though he claimed that he did not know what it was. Given the risk to public safety that firearms pose such crimes are those of strict liability.

The imposition of strict liability is flexible and varies from case to case, however, it is more likely to be imposed given certain types of crimes: dangerous drugs, road traffic offenses, sexual offenses, pollution, and sale of food. For example, in the case of Mariott (1971) he was found to have possession of a penknife with traces of a prohibited drug on it. The court stated that whilst mens rea was required for possession of the penknife, no such hurdle was required for proving that the defendant knew, or should reasonably have known, what the substance was.

We can see from case history that strict liability is an important concept in law which lawyers and courts can turn to in order to protect the public from danger. However, it is a controversial standard as some people consider it contrary to the principle of human rights, and that it seems unjust to penalize those who have taken care not to engage in criminal activity.

The best way to get comfortable with the concept is to consider the case law, some further examples of which are:

R v Prince (1875)

The defendant was charged with taking an unmarried girl, below sixteen, against the will of her father. The defendant had believed that the girl was eighteen. The under age element on the offence is one of strict liability and thus any mistaken belief that he had that the girl was sixteen was irrelevant.

R v Lemon (1979)

A gay news editor and publisher were charged with blasphemous libel after publishing a poem about Christ, which was considered to be an insult to Christianity. The court held that there was no need to prove an intent to blaspheme.

R v Hallam (1957)

A defendant was charged with knowingly possessing explosives, and he claimed that he thought the substance was soap powder. The court held that the prosecution must prove that the accused knew that the substance was in fact explosives.

R v Shorrock (1993)

A farmer had agreed to hire out his field, but did not know that an acid house party was planned. He was convicted of public nuisance as it was found that he ought to have known the nature of the party, so whether he actually knew or not was not relevant.

Smedleys v Breed (1974)

A big manufacturer of tinned peas was convicted under the Food and Drugs Act (1955) (now Food and Safety Act 1990) when one tin was found to contain a caterpillar.