Strict Liability: Stigma and Regret

Abstract

Is the only available justification for strict liability in the criminal law a consequentialist one? If so this will fail to satisfy the many critics that this form of liability has attracted. They will not, in G.R. Sullivan's words, 'countenance systemic injustice for the sake of consequentialist gains'.' And this is not because those gains are not potentially considerable or because forsaking such gains would not be potentially costly.2 For strict liability offences tend to target activities, often described as regulatory, that are highly damaging to society as a whole. It is a bad thing for example if rivers are polluted and if drugs are given out by pharmacists on the basis of forged prescriptions. A legislator could of course criminalize in these contexts without recourse to strict liability. But that might be costly. In strict liability offences, formally defined, the prosecution is required to prove the actus reus, but 'in relation to one or more elements of the actus reus, there is no mens rea element to prove'.3 Dispensing with the need to prove mens rea saves the prosecution and those charged with enforcing the law a lot of bother. For securing what is needed to establish it is, as everyone knows, complex, time-consuming and expensive. Moreover, the use of criminal law in