Strict Liability: Some Principles for Parliament

The Principles on which Strict Liability Is Imposed For the purposes of this article, the definition of strict liability is taken from Smith & Hogan as approved by Lord Edmund Davies in Whitehouse v Gays News: ‘an offence is regarded … as one of strict liability if no mens rea need be proved as to a single element in the actus reus’.1 This is what is called ‘formal strict liability’ in the sense used in Green's definition which is perhaps clearer: ‘offences that contain at least one material element for which there is no corresponding mens rea element’.2 Green's ‘six senses of strict liability’ may cover all the situations where a reduced amount or no mens rea is required and that list more accurately describes the liability than does the standard definition of Smith & Hogan as the former more clearly differentiates the types of criminal liability rather than including such wide ranges of liability in a single definition. Overall though it would not be practicable to go through six definitions to consider what is really meant when the phrase ‘strict liability’ is mentioned. The key problem in practice is that clear presumptions and principles are outlined in important judgements but often very difficult to apply and individual principles are often ignored or given little weight. Lord Scarman's five principles in Gammon3 are probably the most significant statement of the criteria for finding that strict liability is applicable to a particular offence. ‘(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the …