Law and Crime by Gerry Johnstone Tony Ward

Author:Gerry Johnstone, Tony Ward [Gerry Johnstone, Tony Ward]
Language: eng
Format: epub
Tags: Social Science, Criminology, Law, Criminal Law, General
ISBN: 9781446243671
Google: ONQeyaInLnYC
Publisher: SAGE
Published: 2009-12-09T04:00:42+00:00

Strict liability

An offence of strict liability is one for which the prosecution need not prove mens rea, in order to secure a conviction, for some or all of the elements of the actus reus of the offence (Leigh, 1982: 1). Within contemporary criminal law scholarship these offences are generally seen as aberrations – departures from the general principle that a person may not be convicted of a crime unless they acted in a prohibited way (the actus reus) with a certain state of mind (the mens rea) such as ‘knowingly’, intentionally’ or ‘recklessly’.

This principle is widely regarded as being of crucial moral significance. Arguably it ensures that only those who meant to harm other people or violate their property rights, or did something dangerous with reckless disregard for the safety of other people or their property, are subject to the condemnation and stigma of criminal conviction and punishment. Those who cause such harm without meaning to, or without displaying recklessness, are not subjected to such condemnation. Hence, it is regularly suggested that mens rea plays the crucial role of ensuring that only those people who are proved to be at fault for harm resulting from their actions or omissions to act are punished for crimes (Herring, 2008: 146).

Because the creation of strict liability crimes dispenses with the requirement to prove mens rea – for at least one element of the actus reus – they are frequently criticized for flouting this basic principle of criminal justice. Dispensing with mens rea seems to allow ‘the conviction of a person who … is either free from moral fault, or who has not been proved to be so at fault’ (Leigh, 1982: 7). For many criminal legal scholars such offences are therefore morally repugnant and should not exist. A few are willing to accept that strict liability might be acceptable for trivial offences which are widely regarded as ‘not really criminal’ and which ‘do not carry the weight of moral censure that more serious crimes carry’ (see Herring, 2008: 214). For such offences, economic considerations – such as the costs involved (e.g. time spent on investigations, court time) in requiring prosecutors to prove fault – may override moral objections to convicting people who have not been proved at fault. However, those who think strict liability may be acceptable in such cases tend to do so on the assumption that there is barely any social stigma attached to being convicted of such offences and the penalties are – relative to other criminal sanctions – mild (Ashworth, 2006: 169–70). Principles of justice are deemed to require that conviction for more serious offences – which can result in stigma and severe punishment such as imprisonment – should be on the basis of proof of mens rea.

Nevertheless, offences of strict liability are the most numerous offences in English criminal law (Ashworth, 2006: 164). Nor is strict liability reserved for conduct which is obviously ‘not truly criminal’ or for which the punishments are slight.

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