Offences of Absolute Liability
| DOI | http://doi.org/10.1177/002201839906300601 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Divisional Court |
Divisional Court
Offences of Absolute Liability
Harrow
BCv Shah (1999) 163 JP 401
Westminster
City
Council
v
Blenheim
etc
Ltd and ors (1999) 163
Jf
401
Whether an offence charged is 'truly criminal' or is a quasi-criminal
statutory offence, the question may well arise
whether
the establish-
ment
of the offence requires proof of mens
rea
or is an absolute offence
of strict liability. The distinction will depend on
the
wording of the
legislation which creates the offence, for it is from that
that
the courts
will have -to draw
the
inference as to the type of offence intended. The
authorities state that an important (though
not
necessarily the most
important) test
may
be that of the
nature
of
the
subject matter of the
offence, the question being
whether
Parliament has considered the
mischief so serious
that
there is the necessity of creating an absolute
offence, to suppress the mischief. In each of
the
cases noted here,
however, there was a social problem which Parliament might think best
dealt with by the Draconian means of creating an absolute offence,
namely, in
the
one case, gambling by children
under
age and, in the
other, acts of prostitution in night clubs. The discrete results in the two
cases respectively are therefore to be explained in terms ofthe difference
in language between the rules creating
the
offences.
Harrow
BCv Shah
This was a prosecutor's appeal by way ofcase stated against the decision
of the justices
who
had
dismissed an information against the respond-
were newsagents whose employee had sold a National Lottery ticket to
a boy of 131years of age. One of the respondents was at
the
back of the
shop and the
other
was
not
on the premises
when
the
sale was made
and
they were, therefore,
not
aware of it. The employee
knew
that it was
illegal to sell a ticket to a person below
the
age of 16 and he had been
instructed that if he
had
any doubt as to the age of a customer, he was to
consult the proprietors, after trying to obtain details of the customer.
There were hand-written notices on the counter
and
by the
tilt
remind-
ing employees of this, so that the proprietors were able to claim that they
had taken reasonable steps to avoid a contravention of
the
Act. The
employee stated
that
he believed that the boy was at least 16 years of
age and it was .held that this belief was genuine and reasonable. The
proprietors stated
that
they frequently reminded the staff orally of the
relevant rule.
Section 12 of the National Lottery Act 1993 empowers the Secretary
of State to make regulations for the promotion of lotteries
under
the
Act, as he considers necessary and expedient,
and
in particular regula-
tions as to the
minimum
age of purchasers of tickets. Regulation 3 of
the
503
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