Justifications for Imposing Strict and Absolute Criminal Liability, and the Case for a Halfway House Defence
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/00220183241274920 |
| Author | Aaron H. L. Wong |
| Date | 01 December 2024 |
Justifications for Imposing Strict
and Absolute Criminal Liability,
and the Case for a Halfway
House Defence
Aaron H. L. Wong
City University of Hong Kong, Hong Kong
Abstract
The imposition of strict criminal liability is often controversial. This article first revisits the
important functions of mens rea and establishes that imposing strict liability is prima facie
unfair. This article then turns to explore arguments in favour of imposing strict liability, and
evaluates whether these arguments are convincing. After establishing that displacing the
requirement for the prosecution to prove mens rea can be justified in some circumstances,
this article explores different alternatives that allow a balance to be struck between achiev-
ing the purpose of criminalisation and minimising the infringement of the presumption of
innocence. Through a comparative analysis, it is suggested that enabling a halfway house
defence through statutory construction by the courts would be valuable.
Keywords
Strict liability, strict criminal liability, absolute liability, halfway house defence, mens rea,
presumption of innocence
Introduction, Definition and Scope of the Paper
The terms ‘strict criminal liability’or ‘strict liability’could carry different meanings. In this article, con-
sistent with Hong Kong courts’approach and Ashworth’sdefinition,
1
strict liability will be used to
describe situations in which the prosecution is not required to prove mens rea (e.g. intention/ reckless-
ness/ knowledge/ dishonesty etc.) in relation to one or more key elements of the offence.
2
English courts define strict liability differently. Even when the prosecution is not required to prove
mens rea, when there is a statutory defence regarding mental state available for the defendant to rely
Corresponding author:
Aaron H. L. Wong, School of Law, City University of Hong Kong, Hong Kong.
Email: aaron.wong@my.cityu.edu.hk
1. Ashworth A, ‘Should Strict Criminal Liability Be Removed from All Imprisonable Offences?’(2010) 45 Irish Jurist 1.
2. See HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 at [39].
Article
The Journal of Criminal Law
2024, Vol. 88(5-6) 358–373
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241274920
journals.sagepub.com/home/clj
on, the offence is not considered as one of strict liability.
3
An offence is only considered as one of strict
liability when the defendant could not rely on any defence regarding mental state whatsoever. Such strict
liability in England and Wales is termed absolute liability in Hong Kong and Canada.
4
This article would
use the term ‘absolute liability’to describe situations in which conviction would follow once the prohib-
ited act was proved, regardless of the accused’s state of mind, and that the accused cannot avail him/
herself by proving lack of fault.
5
With the famous Latin maxim ‘actus reus non facit reum nisi mens sit rea’–which means an act is
not a guilty act without the accused’s culpable mind,
6
mens rea is considered an essential component
in criminal law. As an example, it is not fair to criminalise someone who accidentally tripped another
over. The crime of battery
7
therefore only catches those who did so intentionally or recklessly.
However, in strict liability offences, a defendant could be convicted without the need for the pros-
ecution to prove his/her/their mens rea. This article thus aims to explore the justifications for impos-
ing strict liability.
In practice, the courts’approach in determining whether an offence is one of strict liability is often to
ascertain parliamentary intent by way of statutory interpretation.
8
The court will presume that mens rea is
an essential ingredient of an offence unless there are reasons to hold otherwise.
9
In this article, rather than
being concerned with statutory interpretation, the focus is on exploring the normative question of when
would imposing strict liability and absolute liability be acceptable, or even preferable.
The first part of this article examines the important functions of mens rea, and explains why displacing
the requirement for the prosecution to prove mens rea (i.e. imposing strict liability) is prima facie unfair.
The second part explores the arguments in favour of imposing strict liability, and evaluates whether these
arguments are convincing. After confirming that imposing strict liability could sometimes be justified, the
third part discusses the alternatives between the spectrum of (a) requiring the prosecution to prove full
mens rea and (b) imposing absolute liability. It is suggested that a halfway house defence should be
made available to better achieve justice. While this article mainly makes references to England and
Wales and Hong Kong cases, the discussion aims to provide a useful comparative perspective that
may be applicable to other jurisdictions.
This article will not discuss a few things. Firstly, this article will not discuss whether constructive
liability is fair,
10
as this is a very controversial area that merits discussion in a separate paper.
Similarly, this article will not address whether strict liability of a consequence element (e.g. dangerous
driving causing death) is fair. Nor does this article concern the fairness of substantive strict liability
(i.e. offences with mens rea but the effect is to remove any mens rea requirement as to the real mischief
that the legislature intended to address),
11
because attempting to do so would distract the focus into
3. Pwrv Director of Public Prosecutions [2022] UKSC 2 at [48]: ‘This is plainly not a strict liability offence because section 57(2)
goes on to provide a defence where the defendant can prove that the possession was not for terrorist purposes’.
4. HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 at [101].
5. HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 at [10].
6. "Actus reus non facit reum nisi mens sit rea", Oxford Reference. https://www.oxfordreference.com/view/10.1093/oi/authority.
20110803095349253 (accessed 9 March 2023).
7. The offence of battery criminalises one who intentionally or recklessly applies unlawful force on another (touching another
would suffice): see Faulkner v Talbot [1981] 3 All ER 468 and HKSAR v Ng Man Yuen Avery (2019) 22 HKCFAR 241.
8. See R v Lane [2018] UKSC 36 at [9] and HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 at [12].
9. Sweet v Parsley [1970] AC 132; HKSAR v Kulemesin(2013) 16 HKCFAR 195 at [38].
10. Anexample of constructive liability is that a defendant can be convicted of murder when the intention is only to cause grievous
bodily harm (but not to kill). It does not fall under the definition defined above because the prosecution is required to prove mens
rea in relation to all key elements of the offence, despite the actus reus and the mens rea required do not correspond. “Strict
liability in grading”is an alternative term that captures the same concept of constructive liability: see Simons K, ‘When Is
Strict Criminal Liability Just?’(1997) 87 J Crim Law Criminol 1075.
11. An example of substantive strict liability offence is that when the true purpose of the legislature is to prevent people from
causing a forest fire, the legislature created an offence to prohibit “knowingly carrying a match near forest”: Simons K,
above n. 10.
Wong 359
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting