strict liability in Tort Law and Criminal Law
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This article has been written by Parth Thummar, a student pursuing LLB(hons.)  from RGSOIPL, IIT Kharagpur.

Abstract

The mens rea or mental element of the crime is one of the integral elements of the definition of any crime. But the doctrine of Strict liability is a departure from this requirement of mens rea. It has given rise to many strict liability offences with the changing time. With this in mind, this article examines the doctrine of strict liability and its rise in two common law countries i.e. UK and USA. Arguments of scholars and reasoning put forward by judges in favour and against the strict liability offences are also discussed. Certain offences where courts are likely to tilt towards strict liability doctrine i.e. absence of mens rea are also listed. Lastly the development of strict liability offences, an examination of offences in the Indian Penal Code, 1860 and enactment of certain special statutes by Parliament to implicitly recognise the strict liability offences are discussed. 

Introduction

The fundamental principle of criminal liability is that there must be a wrongful act- actus reus combined with a wrongful intention. In criminal law, mens rea is a technical term, generally taken to mean some blameworthy mental condition, the absence of which on any particular occasion negates the condition of crime. It is one of the essential ingredients of criminal liability. Actus non facit reum nisi mens sit rea, “the act itself does not make a man guilty unless his intentions were so” is a doctrine as old as criminal itself. But there are certain offences where a defendant can be convicted notwithstanding that he did not have any mens rea. These offences are generally referred to as offences of strict liability. J. Herring gives a very simple definition of strict liability offence as follows:

“A defendant is guilty of a strict liability offence if by a voluntary act he causes the prohibited result or state of affairs and in this case, there is no need to prove that the defendant had a particular state of mind.”

A strict-liability doctrine is a rule of criminal responsibility that authorizes the conviction of a morally innocent person for violation of an offence, even though the crime, by definition, requires proof of a mens rea. An example is the rule that a person who is ignorant of, or who misunderstands the meaning of a criminal law may be punished for violating it, even if her ignorance or mistake of law was reasonable.

One must not confuse strict liability doctrine in criminal law with tort strict liability. Difference between both is given below. 

Difference between strict liability in Tort Law and Criminal Law

Rule of strict liability in tort was first laid down by the House of Lords in Rylands v. Fletcher, where also it held that a person may be liable for harm even though he was not negligent, or he had no intention to cause harm or he may have done some positive efforts to avert the same. While remedy in tort is damages, in criminal law the defendant is punished. Tort damages are understood as a form of taxation on dangerous enterprise or imposed as a “cost of doing business”. This view of sanction is compatible with the notion of liability without wrongdoing; one need not do anything wrong to incur a tax or a business cost. But strict liability in criminals cannot be imposed by analogous meaning. Being sentenced to jail or even being censured by the court- cannot be thought of as a tax or doing business. For convenience, the phrase “strict liability” used henceforth is to be understood in a criminal sense. 

To better understand the evolution of strict liability offence, we will consider its position in two common law countries the United Kingdom and the United States of America.

Strict liability offences in the United Kingdom (UK)

In Sweet vs. Parsley a teacher had rented her house. The tenants were caught smoking cannabis within the premises, which was not permitted by law. The teacher was found guilty by the trial court for the violation of the provisions of the Dangerous Drugs Act, 1965 for mismanagement of the premises. The teacher appealed on the ground for lack of knowledge about the activities of tenants and argued that it was not foreseeable for her to anticipate such activities. The court attempted to differentiate true crime with regulatory offence without any proper categorization and acknowledged that strict liability was appropriate for regulatory offence. The court added that generally, mens rea is essential for the offence to which real stigma is attached. The court considered the instant case as ‘true crime’ and the accused was not held liable by the appellate court for lack of mens rea on the ground that the stigma would cause her to lose her job. 

In Harrow London BC v. Shah the defendant was convicted for selling a lottery ticket to a person under the age of 16, even though he was not aware that the purchaser was under 16 nor was it obvious that the person was underage. 

Recent decisions in R v. K and B (a Minor) v. Director of Public Prosecutions (DPP), the House of Lords have strengthened their position in favour of mens rea and all the pre-decided cases have to be read in light of them. Hence courts are required to read mens rea into a statute unless either: 

  1. There is a clear wording in the statute indicating that the offence is to be one of the strict liability. 
  2. There is a ‘compellingly clear’ inference that the offence is to be one of the strict liability.

Strict liability offences in the United States of America (USA) 

In the USA creation of strict liability crimes began in 1920s and 1930s. Strict liability crimes are mostly seen in the motor vehicle codes, hunting regulations, and food and liquor laws of most of the states. This nullifies the defence taken by the bartender that the person to whom he sold his liquor looked 22 when in fact the person was only 17 or the driver of an overweight truck can’t argue that the company for which he works had faulty scales.

In cases of federal criminal statutes, the U.S. supreme court has consistently maintained a position that strict liability crimes are not preferred and that Congress must make it clear if it wishes to eliminate the mens rea requirement from a criminal statute.

In Staples v. United States the court held that in a prosecution under the National Firearms Act, which requires registration of automatic weapons that meet the definition of “firearms” under the act, the prosecution must prove that the accused knew the weapons he possessed constituted a firearm under the act. As a matter of fact, the defendant had owned an automatic rifle, which qualified as a firearm that must be registered under the act. The main argument of the prosecution was that the statute stated simply that it was a crime to possess or receive a firearm that was not registered, the prosecution was not required to prove that the defendant knew the weapon in his possession qualified as a firearm under the Act. The Court reasoned that the act – possession of rifle was not clearly dangerous, the statute should be construed as a requiring that the defendant knew the weapon in his possession was the one that must be registered, which is different from the case involving firearms like grenades, as any person would know that a grenade is inherently dangerous. 

In United States v. Zhou, A had accessed celebrities health records after he had been terminated from employment, hence he was not authorised to access those records. He was convicted under the statute which made it a crime for a person “who knowingly and in violation of statute accesses patient health information”. He was convicted and he appealed contending that neither there was evidence that he intended to use or sell the records in any manner, nor prosecution had proved that he knew that his actions violated the statute. But the court rejected his arguments holding that the only knowledge required under the statute was knowledge that the defendant was obtaining an individual record. 

Major application of strict liability crimes in the UPA is in the laws that seek to protect the children. Age of the minor is an essential element in the crimes such as sexual intercourse with a child, violation of liquor law or child pornography laws and giving or selling a minor a pistol, drugs, cigarettes, and so on. As these laws seek to protect children, many states have taken away the defence of “mistake of age”. Here defendants can’t argue that they made an honest mistake about the age of the child. Hence the State is only required to prove that defendants committed the forbidden act. In State v. Jabowski defence of honest but mistaken belief as to the age of the victim in statutory rape charge (even though the victim misrepresented her age) was not available and in State v. Fan, employing minors for nude dancing was enough for conviction and mistaken belief as to the age of the child was not available. 

In certain cases, the mistake of fact can serve as a defence to criminal liability, but in strict liability crimes, this defence of mistake is not allowed as liability depends on the doing of a forbidden act without any requirement for the state or government to prove any mental fault. In United States v. Feola, in assaulting a federal officer, the defendant was not allowed to use the honest but mistaken belief that he did not know the victim was a federal officer.

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When will a court not presume mens rea

In the following circumstances, the court is likely to thwart the requirement of mens rea and apply the doctrine of strict liability. 

  1. If some sections of a statute refer explicitly to a mens rea requirement and others do not, that may indicate that those sections which do not are meant to be taken to be strict liability. However, this will not be a conclusive factor.
  2. The court will not only examine the statute in question, but also other statutes which cover analogues offences, in an attempt to ascertain the will of parliament. Sometimes the court may also examine the legislative history of the statute, statements of members of legislatures while debating the law (before it became law and was a bill) and reports of the committees to ascertain the mens rea requirement.
  3. The court will consider the social context of the offence. If it is not intended to be ‘truly criminal’ and more in the nature of a regulatory offence then that may be a factor indicating that the offence is to be one of strict liability. Court will consider the following factors in deciding a ‘truly criminal’ offence. 
  4. The severity of punishment and the level of stigma attached to conviction for that offence. 
  5. Whether the offence is aimed at preventing a very serious danger. When an activity involves a potentially grave social harm, it is more likely to be an offence of strict liability.
  6. Whether rendering the offence one of strict liability will assist in discouraging the activity. In Barnfather v. Islington London court held that just because strict liability will make it easier to prove and enforce will not itself be sufficient argument, but if it persuades potential defendants to change their behaviours then that would be an argument in favour of strict liability. 
  7. Whether offence applies generally to members of the public at large or to those who engage in a particular kind of activity. It is less likely to be one of strict liability if the offence is addressed to members of the public at large. 

Arguments in favour strict liability offences

  1. Special governmental purpose- Protection of the public:
  1. It is based on protectionism or ‘social defence’ as one of the primary aims of the criminal law is the protection of fundamental social interests. Certain areas like sale of food, medical drugs and alcohol pose a risk to others, hence companies or a person which is about to engage in a potentially dangerous activity, through strict liability, we cannot just make it to take reasonable steps to prevent harm, but to do everything that it possibly can do. Imposition of strict liability and not negligence, may courage the company to pull out every step to prevent pollution. 
  2. The offence is civil in nature and no proof of culpability is needed:

Here, the offence is merely a civil offence, and fine is imposed regardless of culpability, proven or presumed, in order to stimulate more careful behaviour in the future. It would follow that the matter should altogether be taken out of the criminal court and treated as an administrative matter, analogous to the imposition of penalties for the late submission of income tax returns.

4. The offence is criminal but the occurrence of result generates a convincing presumption of culpability:

Here, the element of liability need not be proven at all at trial. The occurrence of the objective event, namely marketing of impure drugs or food, raises a presumption of culpable neglect by the supervisory personnel.

5. Wrongdoer runs the risk of their conduct turning out worse than they expected. 

This can be understood from one example, if a man makes a malicious assault on another, and the victim turns out to be a public officer, the wrongdoer should be held accountable for the aggravated offence of assaulting a police officer. 

Arguments against strict liability offences

Some scholars argue that there is no evidence that the strict liability crimes are more effective than negligence-based offences in preventing harmful activities and it will be unjust to convict defendants who have acted in an entirely reasonable way but unpredictably caused harm. To convict such defendants will weaken the stigma that attaches to a criminal conviction and endangers the distinction between criminal and civil law. This will also have the effect of discouraging people from engaging in socially beneficial commercial activities. But after considering both the arguments, arguments in favour of imposing strict liability in certain offences is more stronger. 

Position of strict liability offences in India

One of the reasons why strict liability doctrine is not as developed in India as it is in the UK is, in Britain, criminal law is not contained in single code promulgated by the legislative body, but it is a conglomerate mass of rules based upon the ancient common law of England modified and extended by the authoritative decisions of the judges in the long passage of history, and vastly enlarged by the addition of statutory enactments made by parliament from time to time. On the contrary penal laws in India are exhaustively codified leaving no scope for the judiciary to go beyond statutes. 

If we examine the Indian Penal Code, 1860 (hereinafter IPC) then, chapter IV (general exception) mainly deals with matters of the existence of which negate the existence of such an intent. The definition of offences generally contains reference to evil intent so as to exclude all acts where such an intent is not present. Even where the definition is silent regarding intent, it has been held that on general principles an evil intent must be imported into the definitions of all strictly criminal offences. 

The general doctrine of mens rea is not of very great importance where, as in India, the law is codified and offences are carefully defined so as to include the mens rea in the definition itself. The definitions in the Indian penal code along with the chapter of general exceptions are perhaps sufficient to exclude all cases to which a mens rea cannot be attributed. IPC defies offences with great care and precision and the chapter in general exceptions is very comprehensive. 

If definitions of offences are analysed in IPC, they generally comprise the following principal elements: 

  1. A human being, 
  2. An intention on the part of such a human being to cause a certain consequence considered injurious to individuals or to society, which for the sake of brevity can be called an evil intent,
  3. The act willed, 
  4. The resultant evil consequence. 

As to (b)-the evil intent- it is indicted generally by the use of such words as intentionally, voluntarily, fraudulently, dishonestly, malignantly, wantonly, maliciously etc. 

But there are a few cases where the words indicating intention are not used in defining an offence. But these are either cases where the acts with their consequence are so harmful to the state or society that it has been deemed just and expedient to punish them irrespective of any intention to cause those consequences, or cases where the acts themselves are of such a character that they raise a violent presumption that whoever willed the act must have intended the consequences. Section 121 (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), 124A (Sedition), 359-363 (Kidnapping and Abduction) are examples of former. While Section 232 (Counterfeiting Indian coin) is an example of later. 

Analysis of IPC crimes suggest that these crimes are traditional common law offences that deal with offences against the person, property, state and public morals. All these offences consist of specific acts of aggression that have been recognised as crimes per se or mala in se as opposed to mala prohibita. The distinction between an act that is malum in se and act that is malum in prohibitum has been fully recognised in America where crimes have been defined according to their nature into crimes mala in se and crimes mala prohibita. 

Analysis of Indian Judgements 

In J. K. Industries Ltd. vs. Chief Inspector of Factories and Boilers, the Supreme Court observed, 

“The offences under the Act (the Factory Act 1948) are not a part of general penal law but arise from the breach of a duty provided in a special beneficial social defence legislation, which creates absolute or strict liability without proof of any mens rea. The offences are strict statutory offences for which establishment of mens rea is not an essential ingredient. The omission or commission of the statutory breach is itself the offence. Similar type of offences based on the principle of strict liability, which means liability without fault or mens rea, exist[s] in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution etc…”

The finding of this case was approved in the recent decision of Hemant Madhusudan Nerurkar vs. State of Jharkhand. 

In Union of India vs. M/s Ganesh the court recognized three exceptions of mens rea liability i.e. all cases of public nuisance; acts not criminal in the real sense but prohibited in the public interest; and civil rights enforced through criminal law. The very strong public interest clubbed with a comparatively moderate penalty justifies extending criminal responsibility to cases where there is no mens rea.

Indian Courts have held that mens rea is an integral part of the definition of crime, hence whenever there is no specific mention of it, courts presume its requirement unless a statute expressly or by necessary implication exclude mens rea

Indian courts have justified the non-requirement of mens rea on the grounds that many of the Acts impose only payment of fines as punishment or even if imprisonment is provided, very rarely do courts award it and conviction under public welfare offences does not attach to itself the same kind of social stigma and damage to reputation that conviction under IPC would attract. 

General trend is seen that modern legislative bodies often choose not to create “true” crimes, especially in the areas of traffic, liquor, purity of food, hunting, and narcotic offences, but rather to enact statutes that do not require any proof of mens rea, as it is legislature’s interest in promoting public safety that justifies strict regulation of acts that threaten that public safety. India also seems to follow that path. Professor Jerome Hall has rightly preferred to call strict liability offences as offences relating to ‘economic law’ or ‘administrative regulations’, instead of penal offences.

Conclusion

It has always been prerogative of the legislature to make laws, which includes the power to define what constitutes a crime and what are the elements of a particular crime. In defining crime, the legislature is competent to legislate in respect of a particular crime to omit the essential requirement of mens rea. But many of the enacted legislation neither mention that the mens rea is not an essential element of the offence concerned nor does it state that mens rea is an essential ingredient of the crime. This silence makes the role of judicial interpretation more crucial and this has led to the creation of judge-made law resulting in confusion and contradiction when offences are interpreted by various High Court in India differently. The fact that the defendant can be convicted without proof of his mens rea does not infringe the right to a fair trial. As strict liability has the potential to create injustice and operate harshly, it is rightly said that the doctrine of strict liability is a dangerous instrumentality that should be handled with utmost care. 


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