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Strict liability 2013 14

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Miss Hart

This document provides information about strict liability crimes from a law class. It discusses key concepts like mens rea and actus reus. It analyzes cases related to strict liability for various offenses like traffic violations, food safety laws, and environmental regulations. The document examines how courts determine if a statute establishes strict liability or requires mens rea. It also explores issues around age and sex offenses, and whether a reasonable belief in consent can be a defense.

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Strict Liability …your mind doesn’t matter! A2 Law 2013-14 Miss Hart
Starter… Can you work out the essentials? ALL of you will be able to match the case and the description in your pairs MOST of you will be able to identify the legal rule of the relevant case SOME of you will be able to assign the cases to one of the key areas we have looked at.
And now for something new… Look back at your homework Using your research and the people around you, work out the answers to the following questions: 1. What have the three cases got in common? 2. Which case is the odd one out and why? 3. Is the outcome in each case a fair and just result? Why? Callow v Tillstone 1900 Challenge: Can you create a scenario which would fit in with these cases, and predict the outcome for the court? B v DPP 2000 Sweet v Parsley 1970
Strict Liability: A crime which requires a voluntary actus reus, and no mens rea to at least one element. It is successfully completed when the actus reus is complete. An Example: 1. Why was D liable for the offence? D is driving along the road in Swansea. He is driving under the speed limit, but without a licence or insurance. V steps onto the road in front of D with no warning, and D hits him with the car. V is thrown across the road and dies of his head injuries. 2. Do you think it was fair to convict him? Why? Why not? 3. D was given 24 weeks imprisonment as his punishment, but this raises a problem. How can we sentence different DD to different sentences if all that is required is the same actus reus? How do you think the judges and magistrates approach this problem? s.3ZB Road Safety Act 2006
Your turn! Using your homework complete the section on Callow v Tillstone 1900 Facts: Charge: 1. Why was D liable for the offence? 2. Do you think it was fair to convict him? Why? Why not? 3. The vet, who checked the meat, was found not guilty as his offence required a mens rea, which he did not have as he genuinely thought it was ok. Is this fair? What critical comment on the use of strict liability might you make?
Starter: What’s the word or phrase? Strict liability No mens rea
Where do these offences come from? The majority are statutory – about half of all statutes contain at least some strict liability. A Couple of Common Law Areas… Public Nuisance Outraging Public Decency Blasphemous & criminal Libel Criminal Contempt of Court R v Goldstein 2005 R v Laing 2007 (unreported) Whitehouse v Gay News 1979 AG v MGN Ltd 2011 Means? Case: Still exists? Common or Statute? Why do you think that the courts are not fans of strict liability offences?
Why have strict liability? It’s all thanks to those pernickety Victorians who wanted to raise standards. Woodrow 1845 Cundy v Le Cocq 1884 Sherras v De Rutzen 1895 How did the divisional court distinguish between the two cases? Do you agree?
Rules of Interpretation: How do work out if a statute is strict or not? Gammon v AG of Hong-Kong In interpreting statutes, the courts will take the following approach:  They will presume that every criminal offence requires a mens rea.  This presumption will be even stronger if the offence is ‘truly criminal’ in nature.  This presumption will only be rebutted if the statute either clearly says so, or the outcome of the section clearly implies it..  Even then, it will only be rebutted if it is a matter of social concern; and  By imposing strict liability it will lead to greater vigilance and prevent the prohibited outcome.
Have you understood? Use the rules to determine whether this is a strict offence or not… Pharmaceutical Society v Storkwain STATUTE: s.58(2) Medicines Act 1968 “no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class, specified in an order under this section except in accordance with a prescription given by an appropriate practitioner” MAXIMUM PENALTY: 2 years imprisonment
Other guidance on interpreting the statute… 1. The Words of the Statute  All of you should be able to locate the words, and identify at least one which imposes mens rea.  Most of you should be able to divide the words into mens rea and no mens rea words.  Some of you should be able to explain why some of the words do not impose a fault element.
Starter: can the put you rules together ? On each table is a whole lot of cards, which contain the Gammon rules. All of you need to put them together correctly. Most of you should be able to identify the most important rules Some of you should be able to determine what the ‘red herrings’ have in common….
Other guidance on interpreting the statute… 2. The Presumption of Mens Rea Sweet v Parsley “Parliament did not intend to make criminals of those persons who are in no way blameworthy. Whenever a section is silent as to mens rea, here’s a presumption that …we must read in words appropriate to require mens rea” Thinking: The court talks about the difference between a “quasi” criminal and truly criminal offence. Is this an easy thing to determine?
Other guidance on interpreting the statute… 3. Other sections of the same Act Cundy v Le Cocq Other sections of the Act did have mens rea word, but not s.13, so they must have meant to create strict liability. Sherras v De Rutzen but Although s.16(2) used the word knowingly and s.16(1) was silent they still decided it wasn’t strict! …so, this is more guidance than anything else! The approach of the courts is probably best summed up by the House of Lords in Sweet v Parsley: “the fact that other sections of the act expressly require a mens rea.. is not in itself enough to justify a decision that a section which is silent as to mens reas creates a strict liability offence.”
Got it?: Applying the Assumptions Warner v Metropolitan Police Commissioner 1969 Facts: My Lords, the appellant was tried at Inner London Quarter Sessions on 3 February 1967, on a charge that on 18 November 1966, he had in his possession a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 namely twenty thousand tablets containing amphetamine sulphate. When stopped by the police he had in his car, inter alia, two packages. His defence was that he believed both packages contained scent. In fact when they were opened in his presence one was found to contain scent and the other to contain these tablets. Charge: “it shall not be lawful for a person to have in his possession any of the specified substances unless in specified circumstances”. s.1(1) Drugs (Prevention of Misuse) Act 1960 Task: Using a range of the rules you have met so far, produce your law report explaining whether or not s,1(1) imposes strict liability or not and what this means for the defendant’s liability. Aim to support your conclusions with reference to at least two cases.
Stop and check… Have you got the essentials? Question… What is a strict liability crime? What does ‘quasi-criminal’ mean, and why have the courts invented it? What is the purpose of a strict liability offence? How might the court take D’s MR into account? Name three areas covered by SL
Protection of the environment Food Safety Road Traffic Offences Alphacell v Woodward Kirkland v Robinson Callow v Tillstone Smedleys v Breed R v Williams R v Blakely & Sutton When Has the Court imposed Strict Liability? Social Concern Harrow LBC v Shan and Shah Warner v MPC Barnfather v Islington Council Public Safety Atkinson v McAlpine R v Blake R v Howells R v Deyemi
Consolidating your knowledge… Area Social Concern Environment Public Welfare Food Safety Road Traffic Offences Why is it justified imposing SL here? Supporting case (explained) Why might it not be justified Supporting case (explained)
Age, Sex and Strict Liability: Is D’s reasonable belief that V is older a defence, even if V turns out to be younger? In the law, the age of consent to sex is . This means that a younger V cannot consent in the law. However, the court will sometimes accept that either they have consented in fact, or that D has reasonably believed V to be older. However, this is only a defence if the sexual offence requires a mens rea. Many of the statutory provisions in this area have no mens rea in them – and determining whether Parliament meant this, or just drafted the law really, really badly has proven a bit of a headache for the courts. Key thinking: V aged 14, D thinks is 16 V aged 12, D thinks is 16 Should D have a defence in both situations of reasonable belief?
Age, Sex and Strict Liability: Look at the definition, and the two cases below. Using what you know of strict liability so far… which D was liable and why? s.55 Offences Against the Person Act 1861 “Whosoever shall unlawfully take ... any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father... shall be guilty of a misdemeanour .” R v Prince 1875 R v Hibbert 1869 D ran away with V, who he thought was 18, but was in fact 13. He knew that she lived with her father. D met V in the street, went with her to a house, slept with her and kept her there for a few hours. He then returned her to where they met, and she went home to her father. He thought she was 18, but she was 14.
Age, Sex and Strict Liability: So that was the historical approach: Knowledge as to age was strict. What about the modern court? 1. V is under 16, but over 12 1. What was the problem with s.1 of the act, under which D was charged? 2. Which “presumption” was central to the appeal? 3. Which case do they follow and approve of? 4. What reasons do they give for deciding that s.1(1) is a truly criminal, or serious offence? 5. How does their decision affect D’s conviction and why? 6. Which case do they disapprove of and why? Do you agree? 7. According to Lord Steyn, which section of the act does impose strict liability and why do you think that is? 8. Do you agree with the outcome of the case and why?
Age, Sex and Strict Liability: What happened next? R v K 2001 s,14 Sexual Offences Act 1956 R v Kumar 2004 s,12 Sexual Offences Act 1956 So, in summary… R v S 2005 s,12 Sexual Offences Act 1956 For a sexual offence, where the statute does not stipulate mens rea the court will assume…. Which means D’s reasonable belief in the age of D is…
Age, Sex and Strict Liability [2]: Is D’s reasonable belief that V is older a defence, even if V turns out to be under 13? Thinking point: Why might the rules be different here? What is different about an 11 year old, compared to a 15 year old? R v G 2009 s. 5 Sexual Offences Act 2003 (1) A person commits an offence if — (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis; and (b) the other person is under 13. (2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
What’s the problem? Can the same offence be strict for one D, and not strict for another? Sexual Offences Act 2003 s.5 Rape of V aged under 13 s.6 Assault of V under 13 by penetration s.7 Sexual Assault of V aged under 13 s.9 Sexual activity with a child aged under 16 D holds an honest and reasonable belief that V is aged over 16 and she is 14 D holds an honest and reasonable belief that V is aged over 16 and she is 12 Do you agree with approach of the courts to the problem of secual offences and the age of V?
So, you’ve been charged with a strict liability offence… Can I have a defence please?  Should you have a defence if you have tried to stop the harm and failed?  Can you think of any cases we have already looked at, where D argued this as a defence? Challenge: could we use the distinction between truly criminal offences and quasi criminal offences to justify a defence in some situations?
Due Diligence: A Potential Defence? Harrow LBC v Shah and Shah Why was the defence not open to them? Some Statutory Exceptions: Reasonable belief as to V’s age s.28 Misuse of Drugs Act 1971 s.6 Sexual Offences Act 1959
Got it so far? Find the mistakes. Strict liability crimes are very common. To be liable for one you need have no mens actus rea. reus. Most of them come from the common law and such as pollution and food Most of them come from statute and it covers areas it covers areas such as hygiene. Because it requires no fault element, it fault element, it if D does pollution and food hygiene. Because it requires no means that even means that everythingdoes everything he can to avoid still liable as in Callow v Tillstone, where even if D he can to avoid the harm, he is the harm, he is still liable as in Tallow v the butcher was found liable for selling diseased meat, even though even though Tillstone, where the baker was found liable for selling diseased meat,he had had a vet examine it. he had had a doctor examine it. They really started in the Victorian era, and were aimed at raising the standards. They really started in the Elizabethan era, and were aimed at raising the standards. One of the first cases is Woodrow, where he was charged with possession of unadulterated tobacco, even though forgotten he had anyhadhis pocket. pocket. cocaine, even though he had he had forgotten he in any in his One very problematic area for the courts is sexual offences and D’s belief that V is over 16. The key case is B DPP , which confirms if V if V is 10 12 but D thinks over 18. The key case is R vvK, which confirms thatthat is overoverbut D thinks they they are older, there will be defence ofof reasonable belief open. This disapproves are older, there will be a a defence reasonable belief open. This follows the of the historicalof Prince, whichwhichheld he should have a defence.aMore recently, historical case case of Prince, also also held he should not have defence. More recently, the courts have taken a different approach for younger victims as well. the courts have taken the same approach for younger victims as well.
Plenary: On your Post-it write one argument for or against the following statement
starter: What’s that case? 1. A shin(i)er bus I've never seen... Are you really (not) sweet 15? 2. Vet's a strange looking piece of meat... munch... puke. 7. Not sure blue is my colour boss... cough cough. 8. Hmm... that parcel smells nice. 3. Jesus Christ! 4. Plans? What plans? Crash! 5. Weed know nothing if we were teachers... All of you should be able to describe the facts/name of the case 6. Pease... cat you see anything in there? I checked! 9. I've come to take you away on my noble steed. 10. Dad? What dad? she's an adult... oops! Most of you should be able to identify the area of the law engaged by the case Some of you should be able to determine whether D’s liability was strict or not and why.
intro: So is Strict Liability worth it? Use the information on the dominoes, and your own understanding to complete the evaluation grid. All of you need to have a clear list of positive and negative points about the current use of Strict liability Most of you should be able to support the points with references to appropriate supporting cases or statutes Some of you should be able to link up the arguments to create a more discursive summary of the law.
What could we do to improve it? Reform & change All offences have a presumption of MR unless Parliament expressly states otherwise in the act What do you think? Which of these reforms do you think England and Wales should adopt? Use at least one case in your reasoning! Make all offences strict liability, and let the judge take mens rea into account in sentencing. Introduce a general defence of due diligence to all strict liability crimes.
Got it? Complete the revision sheet to check your understanding of strict liability. Don’t like the squares? Produce a revision brainstorm in your green book using the headings to organise it!
Starter: Strict or not? You’re going to see 8 case clues. For each, on the whiteboards:  All of you need to identify the case  Most of you need to identify whether the liability was strict or not.  Some of you will be able to identify the importance of the case. No knight in shining armour Is TheyArmbandin the river? of their made avetting?a out No A shocking just D? conviction jail? lottery? Salmon pig’s ear A bus to torch? Bad saved after all? those plans?
Applying your understanding: Section C Jerome owns a riverside hotel. Simon, the barman, is told not to serve intoxicated customers. Simon sells lager to Tony who is clearly very drunk. Part of Simon's job is to clean the drains weekly but he often fails to do this. As a result, toxic chemicals build up in the drains and leak into the river, killing fish. Jerome buys meat which a vet has checked. The meat makes the hotel customers ill. Jerome lets a house a mile away to students. The police raid the house and find that the students are growing cannabis plants. What can you tell me about how answer these successfully? Evaluate the accuracy of each of the four statements A, B, C, and D individually, as they apply to the facts in the above scenario. Statement A: Jerome commits a strict liability offence when Simon sells lager to Tony. Statement B: Jerome does not commit a strict liability offence when the fish die. Statement C: Jerome commits a strict liability offence as the house where the students are growing cannabis plants belongs to him. Statement D: Jerome does not commit a strict liability offence when customers are ill after eating meat in his hotel. to
Got the skills? How many marks would this get and why? Statement A: Jerome commits a strict liability offence when Simon sells lager to Tony. • Strict liability offences only require a voluntary actus reus, and no mens rea, which here is selling lager to someone who is already drunk. • Simon completes the actus reus when he serves Tony, and as Jerome is responsible the statement is true. In your green books, improve it, aiming to attain at least 4 marks.
Demonstrate those skills! Working with the person next to you, produce a complete set of answers to the remaining statements in your green books. Statement B: Jerome does not commit a strict liability offence when the fish die. Statement C: Jerome commits a strict liability offence as the house where the students are growing cannabis plants belongs to him. Statement D: Jerome does not commit a strict liability offence when customers are ill after eating meat in his hotel.
What makes a good essay? Look at the essay you have been given. Can you be the teacher? AO1 LEVEL 5 Wide-ranging, accurate, detailed knowledge with a clear and confident understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with wide citation of relevant statutes and case law – 8 cases LEVEL 4 Good, well-developed knowledge with a clear understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate by good citation to relevant statutes and case-law. 5 cases LEVEL 3 Adequate knowledge showing reasonable understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with some citation of relevant statutes and case-law. 3 cases LEVEL 2 Limited knowledge showing general understanding of the relevant concepts and principles. There will be some elaboration of the principles, and where appropriate with limited reference to relevant statutes and case-law. 1 case LEVEL 1 Very limited knowledge of the basic concepts and principles. There will be limited points of detail, but accurate citation of relevant statutes and case-law will not be expected. Marks AO2 Ability to identify correctly the relevant 21-25 and important points of criticism, showing good understanding of current debate and proposals for reform, or to identify all of the relevant points of law in issue. A high level of ability to develop arguments and reach a cogent, logical and well-informed conclusion. Ability to identify and analyse issues 16-20 central to the question, showing some understanding of current debate and proposals for reform, or to identify most of the relevant points of law in issue. Ability to develop clear arguments and reach a sensible and informed conclusion. Ability to analyse most of the more 11-15 obvious points central to the question or to identify the main points of law in issue. Ability to develop arguments and reach a conclusion. 6-10 1-5 Ability to explain some of the more obvious points central to the question or to identify some of the points of law in issue. A limited ability to produce arguments based on their material but without a clear focus or conclusion. Ability to explain at least one of the simpler points central to the question or to identify at least one of the points of law in issue. The approach may be uncritical and/or unselective. Marks 17-20 13-16 9-12 5-8 1-4 You have the indicative mark scheme in your summary sheet (the sort of content that we would expect) You need to use that and this general mark scheme here to mark it as a whole.
What did the examiner have to say? The AO1 content in this script is clearly limited but does show general understanding of the relevant concepts and principles. There is limited citation. Level 2. AO1 marks 10 The AO2 content meets the levels of assessment descriptor for Level 2. Some of the more obvious points are discussed although the quality of the argument is limited, evaluation is hinted at, and tends to be repetitive. AO2 marks 8 There are some errors of spelling and grammar but the material does have a structure and the candidate has at least completed the answer in paragraphs with an introduction and brief conclusion. AO3 marks 2 Total marks 20

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Strict liability 2013 14

  • 1. Strict Liability …your mind doesn’t matter! A2 Law 2013-14 Miss Hart
  • 2. Starter… Can you work out the essentials? ALL of you will be able to match the case and the description in your pairs MOST of you will be able to identify the legal rule of the relevant case SOME of you will be able to assign the cases to one of the key areas we have looked at.
  • 3. And now for something new… Look back at your homework Using your research and the people around you, work out the answers to the following questions: 1. What have the three cases got in common? 2. Which case is the odd one out and why? 3. Is the outcome in each case a fair and just result? Why? Callow v Tillstone 1900 Challenge: Can you create a scenario which would fit in with these cases, and predict the outcome for the court? B v DPP 2000 Sweet v Parsley 1970
  • 4. Strict Liability: A crime which requires a voluntary actus reus, and no mens rea to at least one element. It is successfully completed when the actus reus is complete. An Example: 1. Why was D liable for the offence? D is driving along the road in Swansea. He is driving under the speed limit, but without a licence or insurance. V steps onto the road in front of D with no warning, and D hits him with the car. V is thrown across the road and dies of his head injuries. 2. Do you think it was fair to convict him? Why? Why not? 3. D was given 24 weeks imprisonment as his punishment, but this raises a problem. How can we sentence different DD to different sentences if all that is required is the same actus reus? How do you think the judges and magistrates approach this problem? s.3ZB Road Safety Act 2006
  • 5. Your turn! Using your homework complete the section on Callow v Tillstone 1900 Facts: Charge: 1. Why was D liable for the offence? 2. Do you think it was fair to convict him? Why? Why not? 3. The vet, who checked the meat, was found not guilty as his offence required a mens rea, which he did not have as he genuinely thought it was ok. Is this fair? What critical comment on the use of strict liability might you make?
  • 6. Starter: What’s the word or phrase? Strict liability No mens rea
  • 7. Where do these offences come from? The majority are statutory – about half of all statutes contain at least some strict liability. A Couple of Common Law Areas… Public Nuisance Outraging Public Decency Blasphemous & criminal Libel Criminal Contempt of Court R v Goldstein 2005 R v Laing 2007 (unreported) Whitehouse v Gay News 1979 AG v MGN Ltd 2011 Means? Case: Still exists? Common or Statute? Why do you think that the courts are not fans of strict liability offences?
  • 8. Why have strict liability? It’s all thanks to those pernickety Victorians who wanted to raise standards. Woodrow 1845 Cundy v Le Cocq 1884 Sherras v De Rutzen 1895 How did the divisional court distinguish between the two cases? Do you agree?
  • 9. Rules of Interpretation: How do work out if a statute is strict or not? Gammon v AG of Hong-Kong In interpreting statutes, the courts will take the following approach:  They will presume that every criminal offence requires a mens rea.  This presumption will be even stronger if the offence is ‘truly criminal’ in nature.  This presumption will only be rebutted if the statute either clearly says so, or the outcome of the section clearly implies it..  Even then, it will only be rebutted if it is a matter of social concern; and  By imposing strict liability it will lead to greater vigilance and prevent the prohibited outcome.
  • 10. Have you understood? Use the rules to determine whether this is a strict offence or not… Pharmaceutical Society v Storkwain STATUTE: s.58(2) Medicines Act 1968 “no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class, specified in an order under this section except in accordance with a prescription given by an appropriate practitioner” MAXIMUM PENALTY: 2 years imprisonment
  • 11. Other guidance on interpreting the statute… 1. The Words of the Statute  All of you should be able to locate the words, and identify at least one which imposes mens rea.  Most of you should be able to divide the words into mens rea and no mens rea words.  Some of you should be able to explain why some of the words do not impose a fault element.
  • 12. Starter: can the put you rules together ? On each table is a whole lot of cards, which contain the Gammon rules. All of you need to put them together correctly. Most of you should be able to identify the most important rules Some of you should be able to determine what the ‘red herrings’ have in common….
  • 13. Other guidance on interpreting the statute… 2. The Presumption of Mens Rea Sweet v Parsley “Parliament did not intend to make criminals of those persons who are in no way blameworthy. Whenever a section is silent as to mens rea, here’s a presumption that …we must read in words appropriate to require mens rea” Thinking: The court talks about the difference between a “quasi” criminal and truly criminal offence. Is this an easy thing to determine?
  • 14. Other guidance on interpreting the statute… 3. Other sections of the same Act Cundy v Le Cocq Other sections of the Act did have mens rea word, but not s.13, so they must have meant to create strict liability. Sherras v De Rutzen but Although s.16(2) used the word knowingly and s.16(1) was silent they still decided it wasn’t strict! …so, this is more guidance than anything else! The approach of the courts is probably best summed up by the House of Lords in Sweet v Parsley: “the fact that other sections of the act expressly require a mens rea.. is not in itself enough to justify a decision that a section which is silent as to mens reas creates a strict liability offence.”
  • 15. Got it?: Applying the Assumptions Warner v Metropolitan Police Commissioner 1969 Facts: My Lords, the appellant was tried at Inner London Quarter Sessions on 3 February 1967, on a charge that on 18 November 1966, he had in his possession a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 namely twenty thousand tablets containing amphetamine sulphate. When stopped by the police he had in his car, inter alia, two packages. His defence was that he believed both packages contained scent. In fact when they were opened in his presence one was found to contain scent and the other to contain these tablets. Charge: “it shall not be lawful for a person to have in his possession any of the specified substances unless in specified circumstances”. s.1(1) Drugs (Prevention of Misuse) Act 1960 Task: Using a range of the rules you have met so far, produce your law report explaining whether or not s,1(1) imposes strict liability or not and what this means for the defendant’s liability. Aim to support your conclusions with reference to at least two cases.
  • 16. Stop and check… Have you got the essentials? Question… What is a strict liability crime? What does ‘quasi-criminal’ mean, and why have the courts invented it? What is the purpose of a strict liability offence? How might the court take D’s MR into account? Name three areas covered by SL
  • 17. Protection of the environment Food Safety Road Traffic Offences Alphacell v Woodward Kirkland v Robinson Callow v Tillstone Smedleys v Breed R v Williams R v Blakely & Sutton When Has the Court imposed Strict Liability? Social Concern Harrow LBC v Shan and Shah Warner v MPC Barnfather v Islington Council Public Safety Atkinson v McAlpine R v Blake R v Howells R v Deyemi
  • 18. Consolidating your knowledge… Area Social Concern Environment Public Welfare Food Safety Road Traffic Offences Why is it justified imposing SL here? Supporting case (explained) Why might it not be justified Supporting case (explained)
  • 19. Age, Sex and Strict Liability: Is D’s reasonable belief that V is older a defence, even if V turns out to be younger? In the law, the age of consent to sex is . This means that a younger V cannot consent in the law. However, the court will sometimes accept that either they have consented in fact, or that D has reasonably believed V to be older. However, this is only a defence if the sexual offence requires a mens rea. Many of the statutory provisions in this area have no mens rea in them – and determining whether Parliament meant this, or just drafted the law really, really badly has proven a bit of a headache for the courts. Key thinking: V aged 14, D thinks is 16 V aged 12, D thinks is 16 Should D have a defence in both situations of reasonable belief?
  • 20. Age, Sex and Strict Liability: Look at the definition, and the two cases below. Using what you know of strict liability so far… which D was liable and why? s.55 Offences Against the Person Act 1861 “Whosoever shall unlawfully take ... any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father... shall be guilty of a misdemeanour .” R v Prince 1875 R v Hibbert 1869 D ran away with V, who he thought was 18, but was in fact 13. He knew that she lived with her father. D met V in the street, went with her to a house, slept with her and kept her there for a few hours. He then returned her to where they met, and she went home to her father. He thought she was 18, but she was 14.
  • 21. Age, Sex and Strict Liability: So that was the historical approach: Knowledge as to age was strict. What about the modern court? 1. V is under 16, but over 12 1. What was the problem with s.1 of the act, under which D was charged? 2. Which “presumption” was central to the appeal? 3. Which case do they follow and approve of? 4. What reasons do they give for deciding that s.1(1) is a truly criminal, or serious offence? 5. How does their decision affect D’s conviction and why? 6. Which case do they disapprove of and why? Do you agree? 7. According to Lord Steyn, which section of the act does impose strict liability and why do you think that is? 8. Do you agree with the outcome of the case and why?
  • 22. Age, Sex and Strict Liability: What happened next? R v K 2001 s,14 Sexual Offences Act 1956 R v Kumar 2004 s,12 Sexual Offences Act 1956 So, in summary… R v S 2005 s,12 Sexual Offences Act 1956 For a sexual offence, where the statute does not stipulate mens rea the court will assume…. Which means D’s reasonable belief in the age of D is…
  • 23. Age, Sex and Strict Liability [2]: Is D’s reasonable belief that V is older a defence, even if V turns out to be under 13? Thinking point: Why might the rules be different here? What is different about an 11 year old, compared to a 15 year old? R v G 2009 s. 5 Sexual Offences Act 2003 (1) A person commits an offence if — (a) he intentionally penetrates the vagina, anus or mouth of another person with his penis; and (b) the other person is under 13. (2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
  • 24. What’s the problem? Can the same offence be strict for one D, and not strict for another? Sexual Offences Act 2003 s.5 Rape of V aged under 13 s.6 Assault of V under 13 by penetration s.7 Sexual Assault of V aged under 13 s.9 Sexual activity with a child aged under 16 D holds an honest and reasonable belief that V is aged over 16 and she is 14 D holds an honest and reasonable belief that V is aged over 16 and she is 12 Do you agree with approach of the courts to the problem of secual offences and the age of V?
  • 25. So, you’ve been charged with a strict liability offence… Can I have a defence please?  Should you have a defence if you have tried to stop the harm and failed?  Can you think of any cases we have already looked at, where D argued this as a defence? Challenge: could we use the distinction between truly criminal offences and quasi criminal offences to justify a defence in some situations?
  • 26. Due Diligence: A Potential Defence? Harrow LBC v Shah and Shah Why was the defence not open to them? Some Statutory Exceptions: Reasonable belief as to V’s age s.28 Misuse of Drugs Act 1971 s.6 Sexual Offences Act 1959
  • 27. Got it so far? Find the mistakes. Strict liability crimes are very common. To be liable for one you need have no mens actus rea. reus. Most of them come from the common law and such as pollution and food Most of them come from statute and it covers areas it covers areas such as hygiene. Because it requires no fault element, it fault element, it if D does pollution and food hygiene. Because it requires no means that even means that everythingdoes everything he can to avoid still liable as in Callow v Tillstone, where even if D he can to avoid the harm, he is the harm, he is still liable as in Tallow v the butcher was found liable for selling diseased meat, even though even though Tillstone, where the baker was found liable for selling diseased meat,he had had a vet examine it. he had had a doctor examine it. They really started in the Victorian era, and were aimed at raising the standards. They really started in the Elizabethan era, and were aimed at raising the standards. One of the first cases is Woodrow, where he was charged with possession of unadulterated tobacco, even though forgotten he had anyhadhis pocket. pocket. cocaine, even though he had he had forgotten he in any in his One very problematic area for the courts is sexual offences and D’s belief that V is over 16. The key case is B DPP , which confirms if V if V is 10 12 but D thinks over 18. The key case is R vvK, which confirms thatthat is overoverbut D thinks they they are older, there will be defence ofof reasonable belief open. This disapproves are older, there will be a a defence reasonable belief open. This follows the of the historicalof Prince, whichwhichheld he should have a defence.aMore recently, historical case case of Prince, also also held he should not have defence. More recently, the courts have taken a different approach for younger victims as well. the courts have taken the same approach for younger victims as well.
  • 28. Plenary: On your Post-it write one argument for or against the following statement
  • 29. starter: What’s that case? 1. A shin(i)er bus I've never seen... Are you really (not) sweet 15? 2. Vet's a strange looking piece of meat... munch... puke. 7. Not sure blue is my colour boss... cough cough. 8. Hmm... that parcel smells nice. 3. Jesus Christ! 4. Plans? What plans? Crash! 5. Weed know nothing if we were teachers... All of you should be able to describe the facts/name of the case 6. Pease... cat you see anything in there? I checked! 9. I've come to take you away on my noble steed. 10. Dad? What dad? she's an adult... oops! Most of you should be able to identify the area of the law engaged by the case Some of you should be able to determine whether D’s liability was strict or not and why.
  • 30. intro: So is Strict Liability worth it? Use the information on the dominoes, and your own understanding to complete the evaluation grid. All of you need to have a clear list of positive and negative points about the current use of Strict liability Most of you should be able to support the points with references to appropriate supporting cases or statutes Some of you should be able to link up the arguments to create a more discursive summary of the law.
  • 31. What could we do to improve it? Reform & change All offences have a presumption of MR unless Parliament expressly states otherwise in the act What do you think? Which of these reforms do you think England and Wales should adopt? Use at least one case in your reasoning! Make all offences strict liability, and let the judge take mens rea into account in sentencing. Introduce a general defence of due diligence to all strict liability crimes.
  • 32. Got it? Complete the revision sheet to check your understanding of strict liability. Don’t like the squares? Produce a revision brainstorm in your green book using the headings to organise it!
  • 33. Starter: Strict or not? You’re going to see 8 case clues. For each, on the whiteboards:  All of you need to identify the case  Most of you need to identify whether the liability was strict or not.  Some of you will be able to identify the importance of the case. No knight in shining armour Is TheyArmbandin the river? of their made avetting?a out No A shocking just D? conviction jail? lottery? Salmon pig’s ear A bus to torch? Bad saved after all? those plans?
  • 34. Applying your understanding: Section C Jerome owns a riverside hotel. Simon, the barman, is told not to serve intoxicated customers. Simon sells lager to Tony who is clearly very drunk. Part of Simon's job is to clean the drains weekly but he often fails to do this. As a result, toxic chemicals build up in the drains and leak into the river, killing fish. Jerome buys meat which a vet has checked. The meat makes the hotel customers ill. Jerome lets a house a mile away to students. The police raid the house and find that the students are growing cannabis plants. What can you tell me about how answer these successfully? Evaluate the accuracy of each of the four statements A, B, C, and D individually, as they apply to the facts in the above scenario. Statement A: Jerome commits a strict liability offence when Simon sells lager to Tony. Statement B: Jerome does not commit a strict liability offence when the fish die. Statement C: Jerome commits a strict liability offence as the house where the students are growing cannabis plants belongs to him. Statement D: Jerome does not commit a strict liability offence when customers are ill after eating meat in his hotel. to
  • 35. Got the skills? How many marks would this get and why? Statement A: Jerome commits a strict liability offence when Simon sells lager to Tony. • Strict liability offences only require a voluntary actus reus, and no mens rea, which here is selling lager to someone who is already drunk. • Simon completes the actus reus when he serves Tony, and as Jerome is responsible the statement is true. In your green books, improve it, aiming to attain at least 4 marks.
  • 36. Demonstrate those skills! Working with the person next to you, produce a complete set of answers to the remaining statements in your green books. Statement B: Jerome does not commit a strict liability offence when the fish die. Statement C: Jerome commits a strict liability offence as the house where the students are growing cannabis plants belongs to him. Statement D: Jerome does not commit a strict liability offence when customers are ill after eating meat in his hotel.
  • 37. What makes a good essay? Look at the essay you have been given. Can you be the teacher? AO1 LEVEL 5 Wide-ranging, accurate, detailed knowledge with a clear and confident understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with wide citation of relevant statutes and case law – 8 cases LEVEL 4 Good, well-developed knowledge with a clear understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate by good citation to relevant statutes and case-law. 5 cases LEVEL 3 Adequate knowledge showing reasonable understanding of the relevant concepts and principles. Where appropriate, candidates will be able to elaborate with some citation of relevant statutes and case-law. 3 cases LEVEL 2 Limited knowledge showing general understanding of the relevant concepts and principles. There will be some elaboration of the principles, and where appropriate with limited reference to relevant statutes and case-law. 1 case LEVEL 1 Very limited knowledge of the basic concepts and principles. There will be limited points of detail, but accurate citation of relevant statutes and case-law will not be expected. Marks AO2 Ability to identify correctly the relevant 21-25 and important points of criticism, showing good understanding of current debate and proposals for reform, or to identify all of the relevant points of law in issue. A high level of ability to develop arguments and reach a cogent, logical and well-informed conclusion. Ability to identify and analyse issues 16-20 central to the question, showing some understanding of current debate and proposals for reform, or to identify most of the relevant points of law in issue. Ability to develop clear arguments and reach a sensible and informed conclusion. Ability to analyse most of the more 11-15 obvious points central to the question or to identify the main points of law in issue. Ability to develop arguments and reach a conclusion. 6-10 1-5 Ability to explain some of the more obvious points central to the question or to identify some of the points of law in issue. A limited ability to produce arguments based on their material but without a clear focus or conclusion. Ability to explain at least one of the simpler points central to the question or to identify at least one of the points of law in issue. The approach may be uncritical and/or unselective. Marks 17-20 13-16 9-12 5-8 1-4 You have the indicative mark scheme in your summary sheet (the sort of content that we would expect) You need to use that and this general mark scheme here to mark it as a whole.
  • 38. What did the examiner have to say? The AO1 content in this script is clearly limited but does show general understanding of the relevant concepts and principles. There is limited citation. Level 2. AO1 marks 10 The AO2 content meets the levels of assessment descriptor for Level 2. Some of the more obvious points are discussed although the quality of the argument is limited, evaluation is hinted at, and tends to be repetitive. AO2 marks 8 There are some errors of spelling and grammar but the material does have a structure and the candidate has at least completed the answer in paragraphs with an introduction and brief conclusion. AO3 marks 2 Total marks 20