Strict Liability Offences Research Articles

Automatism and driving offences

Automatism is a rarely used defence, but it is particularly used for driving offences because many are strict liability offences. Medical evidence is almost always crucial to argue the defence, and it is important to understand the bars that limit the use of automatism so that the important medical issues can be identified. The issue of prior fault is an important public safeguard to ensure that reasonable precautions are taken to prevent accidents. The total loss of control definition is more problematic, especially with disorders of more gradual onset like hypoglycaemic episodes. In these cases the alternative of ‘effective loss of control’ would be fairer. This article explores several cases, how the criteria were applied to each, and the types of medical assessment required.

The Most Recent Take on 'Take': U.S. v. Apollo Energies & the Migratory Bird Treaty Act

Feathers continue to fly as courts debate just how far the Migratory Bird Treaty Act’s talons extend, most recently when applied to the industry sector. This note examines the possible implications of requiring the government to prove proximate cause under the misdemeanor provision of the Migratory Bird Treaty Act (MBTA). The Tenth Circuit is the most recent federal appeals court to analyze the misdemeanor takings provision of the MBTA in United States v. Apollo Energies, Inc. Absent a proximate cause element, the court held the MBTA misdemeanor provision violated the Due Process clause of the Fourteenth Amendment of the United States Constitution. To understand the implications of Apollo, the first part of this note will provide the statute’s history and provisions, including the general interpretation of the MBTA’s misdemeanor provision as a strict liability offense. The second part will explore two energy cases decided prior to Apollo, in which the courts refused to convict oil companies under the MBTA. In the third section, I will discuss the recent Apollo decision whose proximate cause requirement purports to solve many of the concerns expressed by the prior courts. These concerns include: fear that the MBTA will be used to prosecute absurd bird deaths resulting from collisions with cars and windows; a lack of statutory notice as to what may lead to MBTA prosecution; and too much reliance on prosecutorial discretion when deciding whether to charge an MBTA violation. The fourth section explores whether Apollo really does solve such concerns and whether requiring the government to prove proximate cause actually dulls the MBTA’s talons and goes against legislative intent. Lastly, proposals are offered which could help Congress and the Fish and Wildlife Service (the agency tasked with enforcing the statute) to clarify their statutory intent. These include amending the MBTA itself, raising the misdemeanor penalty, imposing an industry wide bird fee, and adding a permit provision for bird takings within the energy industry.

Jurisprudence of Over Criminalisation - A Criminological Perspective of Over Criminalisation Under Section 34 of Indian Penal Code

The Situation discussed in the paper engenders many questions regarding the current penal law provisions in India. If one looks at various schools of thought in criminology and different theories of punishment; the purpose of punishing a person is basically to deter others from committing a same crime, or for retribution and maintenance of social solidarity; none of these objectives are fulfilled by excessively criminalising a person under Section 34 of Indian Penal Code for Common Intention. The broad provisions under this section excessively criminalise and scapegoat certain persons for the acts which were not envisaged when the code was enacted. With changing time the penal code of India needs to change and take into consideration various permutations and combinations of situations especially in cases of strict liability offences so that no innocent is punished.

A Fair Punishment for Humbert Humbert: Strict Liability and Affirmative Defenses

In this article, I focused on the intersection of strict liability offenses and affirmative defenses. I sought to explore and evaluate a peculiar discrepancy: all states, as well as the Model Penal Code, deny to a defendant charged with a strict liability offense the defense of mistake, yet at the same time, allow most other affirmative defenses. Is this discrepancy warranted? Consider the following scenarios in which Humbert Humbert is charged with the statutory rape of Lolita: If Humbert Humbert tried to argue that he had acted under a mistaken belief that Lolita was above the age of consent, he most likely would not prevail. He would not prevail even if he made all possible efforts to find out Lolita's true age (e.g., checked Lolita's birth certificate and received a signed sworn affidavit from Lolita's mother) or if he fell prey to Lolita's own deception. The outcome, however, would be different if Humbert Humbert could prove that his misperception of Lolita's age was a result of insanity. In that case, Humbert Humbert would have a valid defense. He would also have a defense if he could show that he had had sex with Lolita under duress. Say, Clare Quilty, engrossed in the production of his pornographic movie, threatened to beat up Humbert Humbert unless he and Lolita performed a sexual act in front of his camera. Obviously, the defenses of mistake, insanity, and duress, albeit belonging to the same family of excuses, differ in many important respects. To see whether certain formative differences may account for the different treatment of these defenses, I examine various excuses on the scales of cognitive-volitional, external-internal, and permanent-temporary. In the end, I conclude that, from the moral perspective, there is: (i) no difference between a permanent and temporary impairment; (ii) a marginal difference in favor of external limitation compared to internal; (iii) a meaningful difference in favor of cognitive impairment compared to volitional. Effectively, this conclusion means that a person who commits a strict liability offense pursuant to a reasonable mistake deserves punishment even less than a person who commits the same crime under duress. I further explore the discrepancy between the treatment of the defense of mistake and other excuses in cases of strict liability from the perspectives of efficiency and other public policies. I conclude that this discrepancy is unwarranted, unfair, and arguably, unconstitutional. Accordingly, I advocate for a revision of the current law and adoption of an across-the-board rule that would make the defense of a reasonable mistake available in any criminal prosecution.

Regulatory Crime: History, Functions, Problems, Solutions

This paper offers a response to concerns that have been expressed in Ireland about the growth in the use of criminal law as an instrument for empowering state agencies to investigate and prosecute breaches of regulatory rules. The criticism appears to be concerned not only with the diffuse enforcement of regulatory crime but also with the risks to the essential character of criminal law associated with the growth of strict liability offences. I argue in the paper that diffuse criminal law enforcement goes back many centuries and pre-dates modern attempts to centralise the enforcement of crimes against person and property in the office of the Director of Public Prosecution. Similarly the emphasis on the mental element in contemporary criminal law is relatively modern. This argument does not take away from real concerns that the bifurcation of criminal law between ‘regulatory’ and ‘real’ crime creates problems. I discuss the potential for greater use of administrative penalties for breaches of regulatory rules, but conclude that such an approach is never likely to offer a complete solution to enforcement within regulatory regimes. Whatever may happen with the development of administrative penalties we are likely to be stuck with the presence of a range of serious strict liability offences, policed by specialized agencies. Accordingly a richer mutual understanding of the traditional and regulatory worlds of criminal law will be required.

The web of contempt: A trap for website operators?

The Internet's central role in delivering news and the ability through search engines to assimilate information very quickly on a particular person or court case means that website operators and others involved with websites may be at risk from contempt of court proceedings, in this country and abroad. Website operators and others involved with websites are increasingly becoming aware of the particular risk posed by the instantaneous and global reach of the Internet in the context of contempt. So where do Internet publishers, in particular website operators, stand in relation to liability for contempt? This article considers the potential impact of the laws of contempt on those who host Internet comment. It also considers whether website operators may take comfort from the E-Commerce Regulations 2002 (S.I. 2002 No. 2013), and how protection for hosts under those Regulations can be consistent with the strict liability offence under the Contempt of Court Act 1981 (CCA).

What is a Crime?

This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged.

Strict Liability: Stigma and Regret

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

Defending Begging Offenders

Begging is a criminal offence in most Australian States and Territories. It is a strict liability offence, and thus the bases upon which those arrested for begging may defend the charge are limited. Most people charged with begging plead guilty and incur a penalty, and very few decisions in relation to the offence of begging are appealed or reported. The criminalisation of begging is unjust and unwarranted. Begging is directly associated with extreme poverty and homelessness, and common justifications for the retention of begging offences, including safety fears, aesthetics and mere annoyance are unpersuasive. In view of the fact that there seems to be little prospect of the removal of the offence of begging from Australian statute books, this paper suggests a number of bases upon which a charge of begging might be defended. It argues that the criminal law defence of necessity may be available to demonstrate that the resort to begging was proportionate to the peril of being unable to meet material needs such as food and shelter. It also raises constitutional arguments upon which the criminalisation of begging may be challenged, making use of the implied freedom of political communication and rule of law principles. Further, it provides an analysis of the various provisions of international human rights law which the criminalisation of begging contravenes.

Insanity in summary trials

Defence of insanity in a summary trial – whether applicable to strict liability offences – medical evidence required to prove – meaning of ‘wrong’ in the McNaughtan rules Case: DPP v Harper Law report of case: unreported (15 April 1997); transcript provided by Legal Information Resources Ltd

An Objectional Offence: A Critique of the Possession Offence in the Films, Videos, and Publications Classification Act 1993

This article examines the strict liability offence of the possession of objectionable publications in s 131 of the Films, Videos, and Publications Classifications Act 1993 ("FVPCA"). The use of strict liability in relation to the possession offence was criticised during the passing of the FVPCA. This article explores fully the criticisms that can be made about the use of strict liability generally, specifically in the context of censorship legislation.

Response to Alexander

The case Professor Alexander poses at the beginning of his rejoinder, that of the intentionally drunken officer, is a variant of a familiar problem. One does something, usually ingesting drugs or alcohol voluntarily, which then makes one's, subsequent behavior involuntary. Alexander's case is slightly different in that the officer intentionally gets drunk with the further intention (as part of the course of action) of sinking the Bismarck. Why is this a problem for my analysis? He proposes three escape routes from his argument (though I confess, I'm not sure what I'm escaping from). In discussing the second route, he seems to concede that my analysis would work for his counter example since . . the officer's past voluntary acts led him to be where he was when the wave caused him to lose his balance. But, he goes on, . . This route will not allow us to distinguish cases of proper strict liability and negligence liability from cases of no liability due to the absence of a voluntary act. Why not? The issue is the existence of an independently specifiable act or course of action or voluntary omission preceding an involuntary motion that somehow makes us responsible for the involuntary motion. Let us take an example. Suppose one reads but ignores a clear warning label on drugs, then operates a vehicle, then--lapsing into unconsciousness--injures someone. Surely, this is a case of negligence. Following my analysis, it requires the injurious consequence and an act intentional under a variety of descriptions (taking medication, ignoring the directions, and so on) carried out in a proscribed manner, that is, violative of a duty of due care. In the involuntary motion cases, there is no series of prior voluntary acts which we could specify and would characterize as negligence. Of course, all involuntary motions are preceded by various voluntary acts. But not all are preceded by a series of such acts which both cause those involuntary motions to cause injury and are done in a negligent manner. Alexander offers no argument that we cannot distinguish cases of negligence from what Holmes calls no act cases, only the naked assertion that we cannot. But the above approach, following my discussion of negligence in the paper, seems clearly to do that. The one example Alexander does offer as counterargument is the strict liability case, the one in which sinking the Bismarck is a strict liability offense. Note first that this offense is defined by a consequence alone. Typically, this is not how strict liability offenses are defined. Rather, they are constituted by a course of action producing death, injury, or property damage, such as manufacturing impure drugs or causing injury while doing demolition work. …

Intentional Contempt of Court

The law relating to contempt of court previously involved a widely applicable strict liability offence and broad time frames that were harsh on journalists. These issues were clarified by the Contempt of Court Act 1981 which limited the application of the strict liability rule. However, recent decisions show that there are still problems in this area of law, mostly relating to the common law which is applicable in some circumstances and easily extended. The author hopes that these issues will be resolved by higher courts in the near future. Abstract by Rose Goss.

Beyond R. v. Sault Ste. Marie: The Creation and Expansion of Strict Liability and the Due Diligence Defence

The Supreme Court of Canada decision in R. v. Sault Ste. Marie created strict liability offences as a middle ground between mens rea offences and absolute liability offences. Strict liability offences allow the defence of due diligence, where the accused has exercised a reasonable standard of care in protecting against the event which occurred. This article examines the acceptance, incorporation and development of strict liability offences and the due diligence defence by Canadian courts, legislatures and industry. In Canadian courts, strict liability and the due diligence offence arise in quasi-criminal, public welfare offences. The reverse onus imposed by the due diligence defence was challenged and upheld in a Charter case. Cases have shown that corporations and directors may be held directly and vicariously liable for the actions of employees and contractors under strict liability principles. Legislatures at both the provincial and federal level have incorporated strict liability and the due diligence defence into a wide variety of quasi-criminal statutes. Industry has responded by taking positive steps to ensure it is complying with legislated standards. The article notes that strict liability is a logical and timely development for Canadian law, as the "due diligence" defence encourages industry's co-operative efforts in the protection of the public interest without hindering regulatory and legal enforcement of public welfare legislation.

Sentencing Guidelines for Organizational Defendants

Research Article| November 01 1990 Sentencing Guidelines for Organizational Defendants William W. Wilkins,, Jr. William W. Wilkins,, Jr. Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (1990) 3 (3): 118–120. https://doi.org/10.2307/20639305 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Twitter LinkedIn Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation William W. Wilkins,; Sentencing Guidelines for Organizational Defendants. Federal Sentencing Reporter 1 November 1990; 3 (3): 118–120. doi: https://doi.org/10.2307/20639305 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. Copyright 1990 Vera Institute of Justice, Inc. Article PDF first page preview Close Modal You do not currently have access to this content.

On the Use of Strict Liability in the Criminal Law

A highly controversial issue in criminal law theory has been the use of strict liability offenses, i.e., offenses which create liability ‘without fault.’ The collection of strict liability offenses is varied according to the element of the particular offense with respect to which liability is strict. For example, a statute prohibiting the filing of a false financial statement with the Secretary of State might impose liability despite a reasonable error as to the truth of the statement, or as to the financial nature of the statement, or as to the identity of the official in question. What all strict liability offenses have in common is the imposition of liability despite the possibility of reasonable mistake or due care regarding some important element of the offense. Generally, then, a strict liability offense is one to which a claim of no-negligence is not a defense. Indeed, such a claim will not even be heard. All that the prosecution need prove is the voluntary commission of the proscribed acts by the defendant; no other question concerning the defendant's efforts or opportunity to obey the law is relevant to liability or conviction.

Negligence and Ignorance

The purpose of this paper is to discuss and to relate to each other two topics: (a) the admissibility of ignorance and mistake of fact as defences against negligence in crime; and (b) the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in (a) not concerned at all with torts negligence, only with criminal offences (whether common law or statutory) which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification of elements, one or other of which is needed to provide the required mens rea (the exception of strict liability offences is here ignored): intention ( = purpose or aim), knowledge (or belief), recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called (partly) a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind (in the positive sense). His not attending, noticing, etc., is equally compatible with his daydreaming (not attending to or noticing anything) and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. (In the present state of English law most offences of criminal negligence do require inadvertence, the notable exceptions being traffic offences such as careless driving. On the other hand, the proposal in the Law Commission Working Paper, No. 31 (1970) would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are (1) whether his performance fell below scratch, (2) what are to be the excusing conditions for such a performance, and (3) if the answer to (1) is yes, whether his performance was covered by the excusing conditions.

Autonomy of Corrective Law: A Projection of the Doctrine of Constructive Negligence

Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent.(Montesquieu,Esprit des Lois,liv. xxvi, chap. 24)Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.(Sir Patrick Devlin, “Statutory Offences” (1958) 4Soc. Pub. Teachers of Law 215)The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.

Adulterated Food—Sentencing Problems in Strict Liability Offences

The serious criticism expressed by many scholars of criminal law against strict responsibility offences (sometimes called Public Welfare Offences), has not brought about their abolition. The courts of this country, as of most common law countries, continue to interpret certain offences as imposing responsibility without fault and the legislator on his part has not interfered.While the debate on the very existence of strict liability offences continues, very little attention has been paid to another not insignificant problem, the principles and considerations on which the courts should determine the severity of sentence to be imposed on conviction for such offences. It is, of course, impossible to deal with this latter aspect in isolation from the rationale given by the proponents of strict responsibility in favour of its retention. It follows, then, that any analysis of sentencing in strict liability offences is to a great extent also a renewed probing from another angle into the basic problems involved in the imposition of liability without fault in criminal law.

The Element of Mens Rea in Recklessness and "Criminal Negligence"

A fundamental principle of Anglo-American criminal law is that for conduct to be punishable criminally, there must be a concurrence of criminal intent, the mens rea, and of a forbidden act, resulting in a proscribed harm. Based on the premise that criminal sanctions. should not be imposed on those who act involuntarily, or without the required criminal intent, the converse of this rule is that criminal sanctions should fall only on those who knowingly violate those rights of others which the state protects. The desirability of requiring mens rea represents an ideal, as shown by the fact that the element of criminal intent has been abrogated in the strict liability offenses. One accepting the desirability of continuing mens rea as an element of criminal offenses is hard put to find a rational basis for the concept that homicide resulting from negligent conduct alone suffices for criminal liability, and thus for the concept of involuntary manslaughter. The difficulty stems from a clash between the desire to continue the requirement of criminal intent, with the definitional inconsistencies flowing in the wake of the terms negligence and involuntary, which imply an absence of intent or of even a mental awareness that a risk has been incurred.