Law and You > Criminal Laws > Criminal Jurisprudence > Strict Liability
The Latin maxim actus non facit reum nisi mens sit rea simply means for imposing criminal liability, prosecution has to prove concurrence of two elements of an alleged offence: a) actus reus and b) mens rea. This is often referred to as fault-based liability. The objective behind inclusion of mens rea is to protect a person who has committed an act prohibited by criminal law by misfortune. However, certain offences do not require mens rea and mere actus reus is sufficient for conviction. Such offences are called strict liability or no-fault based liability. Thus, Strict criminal liability is conventionally understood as criminal liability that does not require the defendant to possess a culpable state of mind i.e., it is a liability in the absence of intention, belief, recklessness, or negligence. Most of these offences have been created by statute.
Strict liability can be defined as a liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence.
Strict Liability in civil law was introduced firstly in Rylands v. Fletcher, (1868) LR 3 HL 330 case, Blackburn Judge first expounded the principle: “That the person who for his own purposes brings on to his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape. … he is responsible, however careful he may have been, and whatever precautions he may take to prevent the damage ”. It is to be noted that Rylands v. Fletcher was decided in the era of predominantly agricultural society. This principle of tort liability was adapted to the era of expanding industrial enterprise.
In M.C. Mehta v. Union of India, AIR 1987 SC 1086 case the Supreme Court propounded the principle that if a person or enterprise engaged in hazardous or inherently dangerous activity causes harm to others irrespective of willful or negligent act is not even strictly but ‘absolutely’ liable for his act. Thus, the Court introduced principle of absolute liability.
In Gammon (Hong King) Limited v. A-G of Hong Kong [1984] 2 All ER 503 case, the defendants were involved in building works in Hong Kong, when part of a building they were constructing fell down. It was found that the collapse had occurred because the builders had failed to follow the original plans exactly. Hong Kong building regulations prohibited diverting in any substantial way from the plans. On appeal against conviction, the defendants argued that they were not liable because they had not known that the changes they had made were substantial ones. However, the court held that the relevant regulations created the offences of strict liability and the convictions were upheld. In judgment Lord Scarman stated:
- there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
- the presumption is particularly strong when the offence is “truly criminal” in character;
- the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute;
- the only situation in which the presumption can be displaced is where the statute is concerned with the issue of social concern; public safety is an issue;
- even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
In Pharmaceuticals Society of Great Britain vs. Storkwain Ltd., (1986) 2 All ER 635, case, where a person presented a forged prescription for purchasing controlled drug. The chemist attempted to verify the prescription by calling the number given in the prescription, which was the procedural requirement provided by the regulatory body. The receiver of the call, who had colluded with the customer, confirmed the genuineness of the prescription and the chemist handed drug to the customer. The busy chemist was held guilty even though he made an attempt to fulfill the procedural requirements. The justification here is that the misuse of drugs is a grave social evil and pharmacists should be encouraged to take even unreasonable care to verify prescriptions before supplying drugs.
According to utilitarian theory, an individual acts in a rational basis with the primary objective of achieving happiness. It is generally based on the consequence of an act rather than the act itself. The happiness of the public at large or greater good should prevail over individual happiness. It can be achieved by occasionally prosecuting an actor who has taken some care but may be held liable for the bad consequence by applying strict liability, denying the defence of reasonable mistake of fact or human error.
Crime may be classified into mala in se and mala prohibitum. Mala is se or truly criminal acts are those which are inherently wrong or evil in itself whereas; mala prohibitum offences may not be inherently wrong but are enforced through statute for the betterment of society. Although there is no clear demarcation between two categories, but mala prohibitum offences are generally regulatory in nature, and mostly strictly held liability.
Some of the important considerations in this regard are:
- the objective of the statute in question is perhaps the most important factor. Strict liability is imposed if the object of the law cannot be achieved by reading mens rea into the provision; and
- the quantum of social danger is relevant. The greater the degree of social danger, the greater chances for construing strict liability.
- the judiciary interprets cases in the light of contemporary situation.
- strict interpretation is the settled rule in certain cases under social welfare legislations.
- strict liability may be enforced in cases where it is difficult to prove mens rea.
- if the provision doesn’t provide the import of mens rea expressly and the court is not in position to take concrete call on acquittal or conviction, balancing is done at the stage of sentencing policy. The court may award lenient punishment or just impose compensation or fine.
In Sweet v Parsley [1970] AC 132 case, the defendant was a landlady who did not live on the premises and only visited occasionally. Her lodgers smoked cannabis and she was charged with being concerned in the management of the premises which were used for the purpose of smoking cannabis. It was not proved that she knew of the smoking. The House of Lords quashed the conviction and said it was not an offence of strict liability because knowledge of the use of the premises was essential to the offence and since she had no such knowledge, she did not commit the offence.In this case, Lord Reid laid down the following guidelines for all cases where the offence is criminal as opposed to quasi-criminal:
- Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision. To convict, guilty mind is required.
- It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
Where a case can be considered truly criminal so that the stigma attached to it is great- the greater the likelihood that a sense of blameworthiness or mens rea is required and the lesser the likelihood that Parliament intended to create a strict liability offence.
In State of Maharashtra v. M.H. George, AIR 1965 SC 722 case, the Court observed “It is a well settled principle of common law that mens rea is an essential ingredient of a criminal offence. Doubtless a Statute can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea.
In State of Orissa vs. Rajeshwar Rao, AIR 1992 SC 240 case, the accused sold adulterated cumin, which was in contravention of Sec. 7 of the Prevention of Food Adulteration Act, 1954 but the trial court and the High Court acquitted him on the ground that his father was the owner of the shop. The Supreme Court set aside the order of acquittal and convicted him on the ground of strict liability. The Supreme Court of India has observed “the Act is a welfare legislation to prevent health hazards by consuming adulterated food. The mens rea is not an essential ingredient. It is a social evil and the Act prohibits commission of the offences under the Act. The essential ingredient is sale to the purchaser by the vendor. It is not material to establish the capacity of the person vis-avis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. As stated earlier the sanctioning authority has to consider the material place before it whether the offence of adulteration of food was committed and punishable under the Act. Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid. It is not necessary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf”.
In M.P. Electricity Board v. Shail Kumar, AIR 2002 SC 551 case. Jogendra Singh, was riding on his bicycle on the night while returning after work from his factory. A snapped live electric wire was lying on the road. There was rain and the road was partially inundated with water. He could not notice the electric wire and came in contact with the same and met with instant death due to electrocution. An action was brought against the M.P. Electricity Board by the widow and minor son of the deceased. The rule of strict lability was applied and it was held that the board had statutory duty to supply electricity in the area. If the energy transmitted by the board caused injury to or death of a human being the electricity supplier shall be liable for the same. If the electric wire was snapped the current should have been automatically cut off. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. The defence that the snapping of the wire was due to the ‘act of the stranger’, who might have tried to pilfer the electricity was rejected. It was further observed that such an act should have been foreseen by the electric board, and at any rate, the consequences of the stranger’s act should have been prevented by the appellant board.
The court observed, even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under the law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known in law, as strict liability.
In Jaipur Golden Gas Victims Association v. Union of India, 23 October, 2009 case where one of the respondent had stored a consignment of rodent-killing pesticide (which contained aluminum phosphate & zinc phosphate) in a godown in a residential area. The owner of the godown had neither taken any precaution nor obtained prior license from the municipal corporation of Delhi as required by section 417 of the Delhi Municipal Corporation Act, 1958. On the fateful day, fire broke out in the godown which resulted in the emission of a highly poisonous gas. As a consequence, several persons were injured and four persons died. A question arose whether the storage of rodent-killing pesticide in the godown could be described as inherently dangerous and hazardous so as to attract the application of the rule of strict liability as propounded in Rylands v. Fletcher.
The court, applying the concept of non-natural use of land, laid down in Rylands v. Fletcher, held that once it was established that the land was put to non-natural use as a consequence of which damage had been caused to the public at large, the cause of fire in the godown became irrelevant. The court further added that once it recognized that the storage of chemical pesticides was certainly an inherently dangerous and/or hazardous activity,
Kinds of Strict Liabilities:
Regulatory Offences:
Several regulatory offences are created by enacting special laws. It is often a mode of enforcing civil right through criminal law. There are a number of enactments that have clearly excluded the element of the mens rea, Sections 7 and 16 of the Prevention of Food Adulteration Act of 1954, Sections 8(1) and 23(1) (a) of the Foreign Exchange Regulation Act, Section 178A of the Sea Customs Act, 1878, and Section 123(7) of the Representation of the People Act. There are a number of decisions in support of the above submission. For example, the Motor Vehicle Act, 1988 punishes certain acts such as rash driving and use of mobile phone while driving. The driver will be held liable even if he is in hurry to reach somewhere for protecting interest of someone or attends an urgent call in his mobile phone while driving without any actually having mala fide intention to endanger life and safety of others.
Socio-Economic Offences:
Generally, socio-economic offences are those which affect the social and economic conditions of the country and overall public welfare. For example: white collar crimes. White collar crimes are those which are committed by person holding respectable position in employment. It is considered very serious and often offenders are punished even without mens rea.
Public Nuisance:
Generally, nuisance is an act or omission which causes some kind of annoyance or inconvenience to other. It may be public or private. The former is the subject matter of crime as it causes inconvenience to public at large but the latter is a ground for civil law and is generally punishable under the law of torts because the target is an individual or certain group of individuals. For example, if a person throws garbage near the door of his neighbour, civil action may lie. But, criminal jurisdiction may be triggered if the same garbage is dumped in public place. In certain situations, civil as well as criminal action may arise out of same case. For example, if a person digs a manhole in the public place and another person fall into it. Action may be taken by the victim in civil law and criminal case may also be filed by any interested member of the society.
According to Section 286 IPC, “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage”. Section 268 of the IPC doesn’t require mens rea for punishing acts amounting to public nuisance. According to Section 12 IPC, the term public “includes any class of the public or any community”.
In Gobind Singh vs. Shanti Sarup, AIR 1979 SC 143 case, the smoke emitted from the chimney from legal business was carried by a strong wind, causing a conflagration was considered as injurious to the health of people.
In K. Ramakrishnan vs. State of Kerela, AIR 1999 Ker, 385 case, the court held that smoking in public place (illegal activity) makes the non-smoker passive smokers, thereby causing public nuisance.
Offence Against Vulnerable Groups:
Strict liability may be applied in offences caused against vulnerable classes such as women, children, disabled, scheduled caste and scheduled tribe. For example, mens rea is not required in offence of kidnapping (Section 359-369 of IPC), certain offences related to human trafficking (The Immoral Traffic (Prevention) Act, 1956; Section 370 & 370A of IPC) and atrocities (The Prevention of Atrocities Act 1989).
Strict liability may be imposed for protecting the rights of the working class. For example, under the Factory Act 1948, the occupier may be strictly held liable.
In J. K. Industries Ltd. v. Chief Inspector of Factories and Boilers, (1996) 6 SCC 665 case, the Supreme Court observed “The offences under the Act 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 mensrea, exist[s] in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution etc…”
Offence Against State:
There are several offences against the security and integrity of the nation where mens rea is not essential element for convicting the offender. It includes waging war against the state (Section 121, 121A, 122 & 123 of IPC), sedition (Section 124 A of IPC), counterfeiting of Indian coins (S.232 of IPC) offences relating to official secrets (The Official Secrets Act, 1923) and unlawful activities (The Unlawful Activities (Prevention) Act, 1967).
Other Offences:
a person may be held responsible without mens rea for acts which obstruct the administration of justice (The Contempt of Court Act 1971), degrading the environment and offences relating to decency and morality.
Words Associated With Strict Liability:
At present it is not always clear whether a particular form of words will be interpreted as creating an offence of strict liability. However, some words have been interpreted fairly consistently, including the following.
Cause:
In Alphacell v Woodward (1972) the defendants were a company accused of causing polluted matter to enter a river. They were using equipment designed to prevent any overflow into the river, but when the mechanism became clogged by leaves the pollution was able to escape. There was no evidence that the defendants had been negligent, or even knew that the pollution was leaking out. The House of Lords stated that where statutes create an offence of causing something to happen, the courts should adopt a common-sense approach – if reasonable people would say that the defendant has caused something to happen, regardless of whether he or she knew he or she was doing so, then no mens rea is required. Their Lordships held that in the normal meaning of the word, the company had ‘caused’ the pollution to enter the water, and their conviction was upheld.
Possession:
There are many offences which are defined as ‘being in possession of a prohibited item’, the obvious example being drugs. They are frequently treated as strict liability offences.
In R v Deyemi (2007) the defendants had been found in possession of an electrical stungun which they claimed to have mistaken for a torch. The offence was interpreted as a strict liability offence and so it was irrelevant if they had made a mistake. The harshness of this approach is highlighted by a statement by the trial judge: . . . Although it does offend one’s sense of justice to exclude mens rea from an offence so a defendant can be guilty of being in possession of something when he knows he is in possession, if it is a prohibited article, albeit he thinks it is something different, and that view is not unreasonable, having regard to its appearance and usage, I am satisfied that that is the state of affairs Parliament intended to create in making the offence one of strict liability. The conviction was therefore upheld by the Court of Appeal.
In Warner v Metropolitan Police Commissioner (1968) case, the Court observed that where a person does not know that he is in possession of a drug, for example: the drugs may have been slipped into his/her pocket unbeknownst to him/her he/she is not thought to be in possession of the drugs
Arguments For and Against Strict Liability
Advantages of Strict Liability:
- By promoting high standards of care, strict liability protects the public from dangerous practices.
- It is easier to enforce – as there is no need to prove mens rea. If the prosecution had to prove mens rea in even the smallest regulatory offence, the administration of justice might very quickly come to a complete standstill.
- 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.
- Persons are more likely to maintain high standards in their business or activity if they know that ignorance of the law or excuse will not excuse them from liability.
- Strict liability is the most efficient and effective way of ensuring compliance with minor regulatory legislation and the social ends to be achieved are of such importance as to override persons who may be free of moral turpitude.
- In many strict liability cases, the defendant is a business and the penalty is a fine, so individual liberty is not generally under threat. Thus, it does not carry the same stigma normally associated with a criminal offence.
Criticism of Strict Liability:
- It is not in the interests of justice that someone who has taken reasonable care, and could not possibly have avoided committing an offence, should be punished by the criminal law. This goes against the principle that the criminal law punishes fault.
- Strict liability should be enforced because mens rea would be too difficult to prove is morally doubtful.
- Even where penalties are small, in many cases conviction is a punishment in itself
- Strict liability takes crucial questions of fact away from juries, and allows them to be considered solely by the judge for the purposes of sentencing.
- Strict liability also delegates a good deal of power to the discretion of the enforcement agency.
- Knowing that it is possible to be convicted of an offence regardless of having taken every reasonable precaution may reduce the incentive to take such precautions, rather than increase it.
- The fact that whether or not strict liability will be imposed rests on the imprecise science of statutory interpretation means that there are discrepancies in both the offences to which it is applied, and what it actually means.
Conclusion:
There are a small number of crimes which can be committed without any mens rea. These offences are known as strict liability crimes. In Union of India v. 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 imposition of strict liability encouraged greater vigilance in setting up careful checks to avoid committing the offence.