ESSAY - STRICT LIABILITY IN CRIMINAL LAW

STRICT LIABILITY IN CRIMINAL LAW

Good answer would address the fairness of strict liability. Examples of strict liability offences. Is it fair to make a person criminally liable even though they did not have the mens reas to the state of affairs or consequences that is prohibited

Advantages:

i) It encourages high standards of care
ii) Removes the great difficulty in some cases of proving mens reas
iii) Makes the enforcement of regulations easier
iv) Protect other citizens from the negative consequences of some of these act if they occurred fully

Disadvantages

i) It is not clear if the fact of strict liability or the threat of fine that imposes high standard (speeding)
ii) Most offences concern businesses, too and there are many of such regulations
iii) They are not easy police and businesses add the risk of being prosecuted as one of the cost – dip in profit if you are caught but otherwise make money while you can.
iv) It is unfair to make a person (including a legal person) liable when they have no control over the state of affairs that is prohibited
v) s.9(1)(a): Entering part of a building with intention to steel – Walkington (1979)

Strict liability does recognise responsibility in a different way; if a person decides to set up a business, or engage in some potential dangerous activity (e.g. driving), then that person has special duties to put him or herself into a position where that potentiality is constantly monitored and minimised: do not buy your meat from a disreputable wholesaler; if in doubt, drive more carefully than less carefully; etc, etc.

This requires an understanding of what went on in Smith (Morgan) [2001) AC 146, then an account of provocation and diminished responsibility. Difficulty arises as to the meaning of relevant circumstances that are taken into account in assessing whether provocation is made out, since it seems in practice very artificial to divide human characteristics up.In smith it seems that its is, in the end, a question of fact for the jury and that only in exceptional circumstances should the jury be informed by the judge. Characteristics should have some degree of permanency – Lord Slynn. Jelousy, obsession etc should be ignored Lord Hoffmann. The majority of Lord thought that it was wrong fro the jury to have been told by the trial judge that Smith’s depression was neither her nor there; rather it was up to the jury to decide the relevancy of the depression. But continuing depression seems to be an abnormality of the mind, and it substantially impaired mental responsibility, then it would seem provocation has been extended into the defence of diminished responsibility.Weller (2005) 1 Cr App R 1; Privy Council case Paria (2003( IKPC 36. Lord Hoffman’s invocation in Smith of the ‘monsters’ of ‘the reasonable obsessive’ and ‘the reasonable depressive alcoholic’.