Divisional Court
| DOI | 10.1177/002201838605000402 |
| Date | 01 November 1986 |
| Published date | 01 November 1986 |
| Subject Matter | Article |
DIVISIONAL
COURT
STRICT LIABILITY
R. v. Wells Street Stipendiary Magistrate, ex p. Westminster City
Council
In deciding
whether
strict liability
should
be
imposed
in relation to
statutory
offences,
the
courts
are
guided by a
number
of principles,
for
example
the
need
to provide
protection
in an
area
of activity
creating
risks to society
and
the
severity
of
the
punishment
provided
for by
the
statute.
Both
these
factors were
considered
by
the
Divisional
Court
in R. v. Wells Street Metropolitan Stipendiary
Magistrate, ex p. Westminster City Council in a case
concerning
the
Town
and
Country
Planning
Act
1971.
Section 55(1) of
the
1971
Act
creates
the
offence of executing
unauthorised
works
for
the
alteration
of a listed building in a
manner
which
would
affect its
character
as a building of special
architectural
or
historical interest.
The
defendant
had
been
found
by
Westminster
City Council's historic buildingsofficer
and
apolice
officer
removing
chimney pieces,
panelled
doors
and
staircase
balustrading
from listed premises. In
committal
proceedings
for an
offence
under
section 55(1),
the
magistrate discharged
the
defendant
since he
took
the
view
that
the
offence was
one
requiring
mens rea
and
there
was no evidence
that
the
defendant
knew
the
building was listed.
In an application for a
declaration
and
orders
of certiorari
and
mandamus
against
the
magistrate's
refusal to
commit
for trial,
the
Divisional
Court
was
referred
in
particular
to
the
recent
decision of
Gammon
(Hong Kong) Ltd. v. Au-Gen.
of
Hong Kong [1985]
A.C.
1; 49
J.c.L.
153.
The
test
propounded
in
that
case was
that
the
presumption
that
mens rea is
required
can only be displaced
where
the
statute
is
concerned
with an issue of social
concern
and
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. It was
submitted
that
the
activity
involved in
the
instant
case was
one
which was
not
truly criminal
but
317
Journal
of
Criminal Law
was of social concern for which strict liability should be imposed to
encourage
greater
vigilance on the
part
of persons engaged in that
area
of activity. In response to this submission, the severity of the
punishment
provided for by section 55(8) (12 months imprisonment
and/or
a fine on conviction on indictment) was cited in support of
the
contention
that
the offence in section 55(1) is truly criminal in
character
and
mens rea is needed.
The
Divisional
Court
found that
the authorities clearly indicate
that
provision of imprisonment as a
form of punishment is not necessarily indicative of Parliament's
intention to require mens rea.
Furthermore,
it was considered
that
there
would be no injustice in imposing strict liability since in
appropriate
cases, discretion could be exercised not to prosecute in
the first place
or
some form of disposal
other
than imprisonment or
fine could be
adopted.
In finding the offence was
one
of strict liability it remained to be
decided
whether
the Divisional
Court
could properly exercise its
powers to interfere with the magistrate's decision in the committal
proceedings.
It
was held
that
in
order
to so interfere
the
court must
be satisfied
that
the magistrate declined to act
or
acted outside his
jurisdiction.
The
Divisional
Court
held that the decision of the
magistrate not to inquire into the offence since he considered it to
be
one
requiring mens rea
amounted
to his declining jurisdiction
where he was legally obliged to act.
The
magistrate's decision was
accordingly quashed
and
the case remitted to him to continue the
hearing.
R.1.
Cooper
The Polytechnic
Newcastle
UpOIl
Tvne
ONUS OF PROOF OF
DRIVING
Patterson v. Charlton
In establishing an offence contrary to section 6 of the
Road
Traffic
Act 1972, as substituted, of driving a
motor
vehicle with a
proportion
of alcohol in the breath beyond the prescribed limit, the
prosecution must prove (inter alia)
that
the defendant was driving
318
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