Strict Responsibility: Possible Solutions
| Published date | 01 July 1974 |
| Date | 01 July 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02391.x |
STRICT
RESPONSIBILITY
:
POSSIBLE
SOLUTIONS
I
THE four years that have elapsed since the House of Lords decided
Sweet
v.
Parsley
have provided an opportunity to reflect upon
its implications. At a first reading, one was tempted to hail the
decision as putting an end to the doctrine of strict responsibility.
Later readings, however, induce a more cautious mood.
To
say this is not to denigrate the decision. Undoubtedly it
reflects a strong desire on the part of members of the House to
eradicate the more odious aspects of strict responsibility. But their
Lordships were not at one as to how this might be done. Of the
five who sat, two (Lords Morris of Borth-y-Gest and Wilberforce)
did not discuss the matter; they disposed of the case by using
traditional techniques of statutory interpretation. The remaining
three (Lords Reid, Pearce and Diplock) recognised that there is, as
decisions stand
at
present, a basic issue
of
morals and justice at
stake. They accordingly discussed that issue but differed as to the
means whereby it might best be handled.
Lord Diplock’s solution was that the ordinary principles of
criminal law should apply here as elsewhere. But Lords Reid and
Pearce were unwilling to go
so
far. Believing, apparently, that
if
those principles are applied
it
will not be possible to police various
undesirable activities-a thesis often advanced but rarely,
if
ever,
supported by evidence-they preferred to speculate on the desira-
bility of introducing a
‘‘
half-way house
”
which would allow an
accused to free himself from the risk of conviction and punishment
if he could positively establish
his
innocence. Lord Reid offered an
alternative, in the shape of liability for gross negligence. But the
thrust of his speech favours the
“
half-way house
”
solution.
For
the present the question remains unresolved; we can thus
well afford to use this breathing space to consider what ought to be
done, and how it might be.
I
shall later argue that, on the basis of
principle, Lord Diplock’s approach is the correct one.
I
shall argue
further that if the adoption of that approach be thought too drastic
a change, there is another and better solution available that
is
consistent with principle. But
I
first wish to discuss the solution
propounded by Lords Reid and Pearce.
It
is
quite clear that these Lords were strongly influenced by
what they believed to be a solution adopted in decisions of the High
1
[1970]
A.C.
132.
417
418
THE
MODERN
LAW
REVIEW
VOL.
37
Court of Australia. Their source of information was an article by
Professor Colin Howard,
"
Strict Responsibility in the High Court
of Australia," which was cited
to
the House in argument and
referred to in their speeches. Lord Diplock referred to the decisions
mentioned in the article, but plainly did not accept Professor
Howard's conclusions.
Those conclusions were that the High Court has resolved the
problem by abandoning strict responsibility in favour of the
'(
half-
way house
)'
of imposing liability for negligence. This liability
arises, in effect,
from
holdings that
it
is
''
normally a good defence
for
D to prove that he acted under
a
reasonable mistake of fact."
Moreover, this latter defence
is
different from the
('
so-called
defence of mistake of fact frequently mentioned in relation to
offences requiring full
mens
rea."
The differences are two in
number
:
Common-Law Defence
1.
The accused need do
no
more
than raise a reasonable doubt'
as to his having acted under
a
mistake of fact.
based on reasonable grounds.
Special
High
Court Defence
'1.
The accused must establish
on
the balance of probabilities
that he acted under a mistake
of
fact.
2.
The mistake must be based
on reasonable grounds.
2.
The mistake need not be
It
is my purpose to argue that the High Court has not produced
these results-in short, that Professor Howard's thesis is
a
mis-
interpretation of the decisions on which he relies.
I
shall further
argue that the theoretical underpinning with which Professor
Howard supports his interpretation-it may be at once said that
this theoretical exegesis is his, being nowhere mentioned in the
cases-is likewise unsound.
If
my views on these matters are
correct, they provide sufficient reason for English courts to dis-
regard, in working out
a
solution, what has allegedly been done in
Australia. But as an additional reason,
I
shall urge that the
fundamental principles of rationality and justice require a rejection
of what may be called the Howard solution.
There are two matters which need to be clarified before any
discussion of Professor Howard's theme can fruitfully be under-
taken. Let me first briefly consider these.
I1
Discussions and judgments on the problem of strict responsibility
are bedevilled by two phrases-"
mens
rea
')
and
cc
burden of
proof." Each of these is pregnant with ambiguity.
One common use of the phrase
"
mens
rea
"
(derived from a
2
i.l.OG0)
76
L.Q.R.
547.
3
This use of the
phrafie
"
half-wny
home
"
is
Professor
Ho~ard'~; in
adopting
it
he
follows
Profeseor
Glanville
RTilliainR.
Lords
Reid
and Pearce
use
the
phrase
differently,
to
denote
a
shifting of
the
burden of
proof.
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