Strict Criminal Liability: A Violation of the Convention?
| Published date | 01 December 2006 |
| DOI | 10.1350/jcla.2006.70.6.531 |
| Date | 01 December 2006 |
| Subject Matter | Article |
Strict Criminal Liability:
A Violation of the Convention?
Solomon E. Salako*
Abstract Since its inception in the late 19th century, strict criminal liabil-
ity has been used to grapple with regulatory offences. The object of
this article is to show that in most cases and in spite of the utilitarian
arguments advanced for its retention, strict criminal liability violates
Convention rights and that civil sanctions would offer equivalent possibil-
ity of enforcing regulatory offences.
Strict criminal liability as an efficient mechanism for allocating the costs
of risk-creating activities was established in Anglo-American jurispru-
dence in the late 19th century1and not in R v Woodrow2as hinted by
some commentators.3Neither the Sale of Food and Drugs Act nor the
Public Health Act of 1875 created strict criminal liability. As regards the
former, the statute sought to protect the innocent consumer and ven-
dor4and the latter expressly provided for recovery if the sellers were not
in default. For example, Hobbs v Winchester Corporation,5often cited as a
locus classicus on strict criminal liability was a civil proceeding taken
pursuant to the Public Health Act 1875. The fons et origo of strict criminal
liability was the attempt to grapple with the complexities of the In-
dustrial Revolution: the invention of automobiles, congested living ac-
commodation and the social evils of alcoholism, the growth of factories
and the erection of modern buildings and skyscrapers which required
new forms of regulation.
The ensuing categories of strict liability offences are almost endless:
from strict substantive liability and strict procedural liability6to the seven
kinds identified by Husak.7In this article, we shall adopt a taxonomy of
* LLM (London), MPhil (London), ACIS, Barrister; Senior Lecturer in Law, Liverpool
John Moores University; e-mail S.E.Salako@ljmu.ac.uk.
1 R. G. Singer, ‘The Resurgence of Mens Rea: III—Rise and Fall of Strict Liability’
(1989) 30 Boston College Law Review 337 at 340, 345.
2 (1846) 15 M & W 404, 153 ER 907.
3 See, e.g., D. Ormerod, Smith & Hogan Criminal Law, 6th edn (Oxford: Oxford
University Press, 2005) 136.
4Pain vBroughtwood (1890) 24 QBD 353 and Spiers & Bond vBennett [1896] 2 QB
65.
5 [1910] 2 KB 471. In that case, meat offered for sale by Hobbs, a butcher, was
destroyed as being diseased. Hobbs who had been previously acquitted of selling
unsound meat sought compensation allowed by the Public Health Act 1875 to a
person who sustained damage ‘to any matter as to which he is not himself in
default’. The judges denied compensation.
6 D. N. Husak, ‘Varieties of Strict Liability’ (1995) 8 Canadian Journal of Law and
Jurisprudence 189 at 199.
7 Ibid. at 225: ‘(1) a defendant’s guilt need not be proved by the prosecution beyond
reasonable doubt; (2) a defendant could be convicted despite his lack of mens rea;
(3) liability was not defensible by any of the justifications that defeat liability for
other defences; (4) liability was not defensible by any of the excuses that defeat
liability for other offences; (5) a defendant could be vicariously liable even though
he had no relationship to the perpetrator that enabled him to control the latter’s
conduct; (6) a defendant need not have performed any voluntary act on which
531
four varieties of strict criminal liability: (1) common law strict criminal
liability; (2) absolute liability offences; (3) public welfare offences; and
(4) offences where the reverse burden is placed on the defendant. We
shall discuss the justificatory theories of strict criminal liability with a
view to assessing whether any of the above varieties could be justified
without violating the rights protected by the European Convention on
Human Rights (the Convention).
Justifications for strict criminal liability
Scholars and judges have struggled to develop a coherent principle of
strict liability: first by the unsuccessful reliance on words used in the
statutory provisions and later on the odium or threat posed to commun-
ity by the perpetrators of the proscribed acts. Words such as ‘using’,
‘causing’, ‘permitting’, ‘wilfully’, and ‘knowingly’ have proved incon-
clusive in determining whether or not a statutory provision created a
strict liability crime.8However, a semblance of coherence seems to be
emerging due to the evolving categories of strict liability (regulatory)
offences enacted to deal with social dangers such as pollution,9protec-
tion of trees10 and wildlife,11 selling unsound meat12 or adulterated
tobacco,13 selling tobacco to a child,14 possessing or supplying pro-
scribed15 or regulated drugs,16 possession of firearms,17 selling intoxicat-
ing liquor to a drunken person18 or to a policeman while on duty,19 using
a station for wireless telegraphy without a licence,20 transportation of
clandestine entrants into the UK,21 sexual offences and abduction of a
young person,22 being a parent of a child who failed to attend school
liability could be based; and (7) any innocent purpose a defendant may have had
would be irrelevant’.
8 See Alphacell Ltd v Woodward [1972] AC 824 where the House of Lords upheld the
conviction of a company of ‘causing’ the pollution of a river without the need for
either mens rea or negligence. See also R vSheppard [1980] 3 All ER 899 where the
House of Lords held that in the offence of wilfully neglecting under s. 1 of the
Children and Young Persons Act 1933 there was an element of mens rea as to the
relevant risks; and Maidstone Borough Council vMortimer [1980] 3 All ER 552, DC
for an offence which was interpreted as one of strict liability despite the use of the
word ‘wilfully’.
9Alphacell Ltd v Woodward [1972] AC 824.
10 Maidstone Borough Council v Mortimer [1980] 3 All ER 552 and R v Alath
Construction, R vBrightman [1990] Crim LR 516.
11 Kirkland vRobinson [1987] Crim LR 643.
12 Hobbs v Winchester Corporation [1910] 2 KB 471.
13 R v Woodrow (1846) 15 M & W 404, 153 ER 907.
14 St Helens Metropolitan Borough Council vHill The Times (26 March 1992).
15 Warner vMPC [1969] 2 AC 256; cf. Sweet v Parsley [1970] AC 132.
16 Pharmaceutical Society of Great Britain vStorkwain Ltd [1986] 2 All ER 635, HL.
17 R v Howells [1977] 3 All ER 417.
18 Cundy v Le Cocq (1884) 13 QBD 207.
19 Sherras vDe Rutzen [1895] 1 QB 918.
20 R v Blake [1997] 1 All ER 963, CA.
21 International Transport Roth GmbH and Others v Secretary of State for the Home
Department [2003] QB 728, CA.
22 R vPrince (1875) LR 2 CCR 154. cf. B (A Minor) vDPP [2000] 2 AC 428, HL and
R vK [2001] 3 All ER 897.
The Journal of Criminal Law
532
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