SOME SOCIOLOGICAL ASPECTS OF STRICT LIABILITY AND THE ENFORCEMENT OF FACTORY LEGISLATION
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01283.x |
| Published date | 01 July 1970 |
| Date | 01 July 1970 |
| Author | W. G. Carson |
SOME SOCIOLOGICAL ASPECTS OF STRICT
LIABILITY
AND
THE
ENFORCEMENT OF
FACTORY LEGISLATION
“
He did not understand the noble Lord [Althorpe]
to
object
to
machinery being properly boxed and guarded
.
.
.
but
to
the impropriety
of
attaching such a punishment as that
of
manslaughter for
such
comparatively small offences as an
accident from machinery, where, in fact, the proprietor
of
the
mill
might not
be
to blame at all.
. . .
in their wish
to
carry
into effect benevolent designs, they had overlooked the magni-
tude of the consequencee--sn
error
not very unusual with all
righters of wrongs and redressers of grievances from the days
of
Don
Quixote to those of the noble Lord [Shaftesbury].”
(Mr.
Hyett, House of Commons, July
1888.)
“
It
should be made evident that when you find things wrong,
you do
so
with regret, and that the punishments of the law
will
be
employed only against wilful and obstinate offenders.”
(A
factory inspector’s instructions to his assistants, September
1887.)
1.
THE
LEGAL
ISSUE
m
SOCIOLOGICAL
RESE~SCH
FEAR
that the morally blameless might be sacrificed to unproven
assumptions about the criminal law’s peculiar superiority as a
means
of
curtailing serious social evils is by
no
means new. It has,
however, become intensaed in recent years as more and more
people have grown uneasy over a number of statutes embracing
strict liability, a principle under which intention, recklessness
or
negligence are not specified as essential ingredients
of
the offences
created. Reaching its peak with the much publicised case of
Sweet
v.
Parsley
in which Lord Reid referred to
“
the public scandal
of convicting
on
a serious charge persons who are in
no
way
blameworthy
.
.
.
,’)
this concern has also come to be shared
on
a
general level by the members of the Law Commission.
In
May
1968,
nearly a year before Lord Reid’s pronouncement, one of the
Commission’s working parties announced its bold intention of con-
sidering whether
“
the purposes
for
which such offences are enacted
[could] be achieved by other means than through the machinery
of
the criminal law
)’
and, possibly anticipating a negative con-
clusion
on
this dramatic possibility,
of
considering also a number
of
ways to protect
“
persons who offend but who nevertheless are
regarded
as
morally without blame.”
*
1
[1969]
1
All
E.R.
347.
3
Law
Commission’s
Working
Party
on
Codification
of
the
Criminal
Law,
Pub-
4
Ibid.
at
p.
13.
2
rbid.
at
p.
351.
lished
Working
Psper
No.
17,
1868,
p.
17.
896
JULY
1970
SOCIOLOOICAL ASPECTS
OF
STRICT LIABILITY
897
One of the Commission’s suggestions in the latter oontext-
severe restriction upon penalties-would merely alter the degree
rather than the nature of strict liability’s affront to tender
con-
sciences. The remainder, though not all legal innovations in
themselves, would entail changes
of
a
more basic kind in many
criminal statutes. Offences
of
strict liability might
be
placed in
‘‘
a lower
or
less serious category than crimes
’
”;
the use of
devices such as orders of prohibition might be extended;
or
a
defence such as due diligence might be provided as an escape route
for the blameless.
(I
Several of the above possibilities raise issues which correspond
to crucial theoretical problems in the sociology of law.
In
setting
itself to consider the viability of securing the same objectives by
means other than the criminal law, the Commission implicitly
recognised important sociological questions about the functions of
such law
in
general and, more specifically, about the role
of
many
recent statutory enactments as active instruments
of
social policy
and social change.‘ Similarly, the suggestion that strict liability
offences might be placed in a different category from
(‘
crimes
”
even
if,
to use the Commission’s
own
words, they were
cc
left within
the ambit of criminal law,” is echoed by those sociologists who
seek to distinguish criminological categories such as
cc
folk crimes.”
*
This area of convergence between legal and sociological prob-
lems, even
if
couched
in
somewhat different language, is certainly
one of those in which cross-fertilisation between the two disciplines
could be very fruitful. Such co-operation would contribute more
however, to the long-term development of common theoretical
perspectives than
it
would to resolution of the immediate dilemma
about strict liability.
In
this less abstract context two practical
questions remain paramount for sociologists and lawyers alike.
Is
it possible that the harshness of strict liability is substantially
mitigated in practice by the wise exercise of discretion-that the
law
in
action affords considerable protection
to
the morally blame-
less, even
if,
in particular instances, the law in books does not?
Equally important, where a statute does provide some escape route,
how effective is this as a safeguard for the morally innocent
?
With regard to one statute embracing strict liability, the
Food
and Drugs
Act
1955,
the first of these questions has already received
a negative answer from two non-sociologists,
M.
Smith and
A.
Pearson.lo Equating moral fault
or
blameworthiness with intent,
5
6
I
8
9
10
See below.
Op.
cit.,
pp.
13
and
17.
See,
for example,
Edwin
M.
Lemert’s discussion of what
he
refer.@ to
a8
I‘
active
Social
control
”
in
Human
Deviance, Social
Problems
and Social
Control
(1967),
Chap.
1.
09.
cit..
D.
17.
H.
L.
&;a,
“
Traffic Law Violation: A Folk Crime,”
Social
Problem,
Vol.
8,
No.
3,
1960-61,
236-237.
“
The Value of Strict
Liability
”
[1969]
Crim.L.R.
5-16.
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