STRICT LIABILITY

The general rule of criminal law is that a man is not criminally responsible for an act or conduct
unless it is proved that he did the act voluntarily and with a blameworthy state of mind. This
principle is also frequently stated in the form of a Latin maxim: actus non facit reum nisi mens sit
rea. The definition of a particular crime, either in statute or under common law, will contain the
required actus reus and mens rea for the offence.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation
to one or more elements comprising the actus reus. The liability is said to be strict because the
accused will be convicted even though he was genuinely ignorant of one or more factors that made
his acts or omissions criminal. The accused may therefore not be culpable in any real way, i.e.
there is not even criminal negligence, the least blameworthy level of mens rea.

The principle of strict liability is an exception to the general rule of criminal law. The accused may
be criminally liable although his conduct was not intentional, reckless or negligent. This is known
as strict liability or liability without fault. Thus strict liability is simply criminal liability in the
absence of intent, purpose, knowledge, belief, recklessness, negligence or some other prescribed
mental element. Offences of strict liability are those crimes which do not require mens rea with
regard to at least one or more elements of the actus reus. The defendant need not have intended or
known about that circumstance or consequence. Liability is said to be strict with regard to that
element. For a good example see:
R v Prince [1874-80] All ER Rep 881
R v Hibbert (1869) LR 1 CCR 184.
It is only in extreme and rare cases where no mens rea is required for liability, thereby making the
particular offence "absolute". For example see: R v Larsonneur (1933) 24 Cr App Rep 74 and
Winzar (1983) The Times, 28 March 1983.

These laws are applied either in regulatory offences enforcing social behaviour where minimal
stigma attaches to a person upon conviction, or where society is concerned with the prevention of
harm, and wishes to maximise the deterrent value of the offence. Examples of strict liability
include statutes that regulate sale of food, drinks and sellers of meat, offences under the Traffic
Act, Public health and industrial regulations and environmental offences.

See Cundy v Le Cocq1. The appellant was convicted of unlawfully selling alcohol to an
intoxicated person under s.13 Licensing Act 1872. The appellant appealed on the grounds that he
unaware of the customer's drunkenness. The appeal was dismissed and conviction was upheld.
Court held that S.13 was silent as to mens rea, whereas other offences under the same Act expressly
required proof of knowledge on the part of the defendant. It was therefore taken that the omission
to refer to mens rea was deliberate and the offence was one of strict liability.

See also Sherras v De Rutzen [1895] 1 QB 918

a) What crimes are crimes of strict liability?

Unfortunately, statutes are not so always obliging as to state “this is a strict liability offence’.
Occasionally the wording of an Act does make this clear, but otherwise the Courts are left to decide
for themselves.
It is always a question of construction whether the offense requires a mental element and if so what
that mental element is. Often the definition section of the offense uses a word or phrase knowingly,
with intent to, recklessly, willfully, dishonestly and so on which gives guidance to the court.

However it should be noted that it doesn’t follow that where no word or phrase importing a mental
element is used, the court will find that mensrea is not required and therefore the offense being
that of strict liability. On the contrary the courts have frequently asserted that there is a presumption
in favour of mensrea which must be rebutted by the prosecution in each and every case.

According to Lord Edmund Davies in Whitehouse v Lemon2 at 920, an offense is regarded and
properly regarded as one of strict liability if no mensrea need be proved as to a single element in
the actus reus. For example, an offense of driving without a valid, driving license under S.35 of
the traffic and Road safety Act.

1
(1884) 13 QBD 207
2
[1979] 1 ALLER 898
Another example is that of defilement, where the accused will be convicted of defilement even
though he reasonably but mistakenly believed that the victim was old enough to consent to
intercourse

No precise rules can be given as to when court will interpret a statutory offense as one of strict
liability. The courts will consider the wording of the statute, the gravity of the offense and
particularly the object and purpose of the legislation. It is believed that where the statute applies
to an issue of social concern such as the sale of medicinal drugs without a prescription or public
safety, then strict liability would be effective to promote its objects.

What factors are taken into account by the courts when assessing whether or not an offence falls
into the category of strict liability offences?

In Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong3, the accused were involved
in building works in Hong Kong. Part of a building they were constructing fell down, and it was
found that the collapse had occurred because the builders had failed to follow the original plans
exactly. The Hong Kong building regulations prohibited deviating in any substantial way from
such plans, and the defendants were charged with breaching the regulations an offence punishable
with a fine of up to US $ 250,000 or three years imprisonment. On appeal they argued that they
were not liable because they did not know that the changes they made were substantial. However
the Privy Council held that the relevant regulations created offenses of strict liability, and the
convictions were upheld.

Explaining the principles on which they had based the decision, Lord Scarman laid down the
criteria upon which a court should decide whether or not it is appropriate to impose strict liability:
"In their Lordships' opinion, the law … may be stated in the following propositions;
(1) there is a presumption of law that mens rea is required before a person can be held guilty of a
criminal offence; (2) the presumption is particularly strong where the offence is "truly criminal"
in character; (3) the presumption applies to statutory offences, and can be displaced only if this is

3
[1985] 2 All ER 503
clearly or by necessary implication the effect of the statute; (4) the only situation in which the
presumption can be displaced is where the statute is concerned with an issue of social concern, and
public safety is such an issue; (5) 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."

These principles were recently applied by the Court of Appeal in:

R v Blake (1996) The Times, 14 August.
In this case, investigation officers heard an unlicensed radio station broadcast and traced it to a flat
where the defendant was discovered alone standing in front of the record decks, still playing music
and wearing a set of headphones. Though the defendant admitted that he knew he was using the
equipment, he claimed that he believed he was making demonstration tapes and did not know he
was transmitting. The defendant was convicted of using wireless telegraphy equipment without a
licence, contrary to s1(1) Wireless Telegraphy Act 1949 and appealed on the basis that the offence
required mens rea.

The Court of Appeal held that the offence was an absolute (actually a strict) liability offence. The
Court applied Lord Scarman's principles in Gammon and found that, though the presumption in
favour of mens rea was strong because the offence carried a sentence of imprisonment and was,
therefore, "truly criminal", yet the offence dealt with issues of serious social concern in the
interests of public safety (namely, frequent unlicensed broadcasts on frequencies used by
emergency services) and the imposition of strict liability encouraged greater vigilance in setting
up careful checks to avoid committing the offence.
NOTE: The court seems to have been inconsistent in its use of terminology in the present case.
The offence is one of strict liability as the defendant had to be shown to have known that he was
using the equipment.
4.2 PRESUMPTION OF MENS REA
Courts usually begin with the presumption in favour of mens rea, commonly the well-known
statement by Wright J in Sherras v De Rutzen4:
There is a presumption that mens rea, or evil intention, or knowledge of the wrongfulness of the
act, is an essential ingredient in every offence; but that presumption is liable to be displaced either
by the words of the statute creating the offence or by the subject-matter with which it deals, and
both must be considered.

In Sherras v De Rutzen5: The defendant was convicted of selling alcohol to a police officer whilst
on duty, contrary to s16(2) of the Licensing Act 1872. He had reasonably believed the constable
to be off duty as he had removed his arm-band, which was the acknowledged method of signifying
off duty. The Divisional Court held that the conviction should be quashed, despite the absence
from s16(2) of any words requiring proof of mens rea as an element of the offence. Wright J
expressed the view that the presumption in favour of mens rea would only be displaced by the
wording of the statute itself, or its subject matter. In this case the latter factor was significant, in
that no amount of reasonable care by the defendant would have prevented the offence from being
committed. Wright J stated:
"It is plain that if guilty knowledge is not necessary, no care on the part of
the publican could save him from a conviction under section 16, subsection
(2), since it would be as easy for the constable to deny that he was on duty
when asked, or to produce a forged permission from his superior officer, as
to remove his armlet before entering the public house. I am, therefore, of
opinion that this conviction ought to be quashed."

4.3 GRAVITY OF PUNISHMENT

As a general rule, the more serious the criminal offence created by statute, the less likely the court
is to view it as an offence of strict liability. See:

4
[1895-9] All ER Rep 1167
5
[1895-9] All ER Rep 1167
Sweet v Parsley6: The defendant was a landlady of a house let to tenants. She retained one room
in the house for herself and visited occasionally to collect the rent and letters. While she was absent
the police searched the house and found cannabis. The defendant was convicted under s5 of the
Dangerous Drugs Act 1965 (now replaced), of "being concerned in the management of premises
used for the smoking of cannabis". She appealed alleging that she had no knowledge of the
circumstances and indeed could not expect reasonably to have had such knowledge.

The House of Lords, quashing her conviction, held that it had to be proved that the defendant had
intended the house to be used for drug-taking, since the statute in question created a serious, or
"truly criminal" offence, conviction for which would have grave consequences for the defendant.
Lord Reid stated that "a stigma still attaches to any person convicted of a truly criminal offence,
and the more serious or more disgraceful the offence the greater the stigma". And equally
important, "the press in this country are vigilant to expose injustice, and every manifestly unjust
conviction made known to the public tends to injure the body politic [people of a nation] by
undermining public confidence in the justice of the law and of its administration."
Lord Reid went on to point out that in any event it was impractical to impose absolute liability for
an offence of this nature, as those who were responsible for letting properties could not possibly
be expected to know everything that their tenants were doing.

4.4 WORDING OF THE STATUTE

In determining whether the presumption in favour of mens rea is to be displaced, the courts are
required to have reference to the whole statute in which the offence appears. See: Cundy v Le
Cocq7.
The defendant was convicted of unlawfully selling alcohol to an intoxicated person, contrary to
s13 of the Licensing Act 1872. On appeal, the defendant contended that he had been unaware of
the customer's drunkenness and thus should be acquitted. The Divisional Court interpreted S.13 as
creating an offence of strict liability since it was itself silent as to mens rea, whereas other offences
under the same Act expressly required proof of knowledge on the part of the defendant. It was held
that it was not necessary to consider whether the defendant knew, or had means of knowing, or

6
[1969] 1 All ER 347
7
(1884) 13 QBD 207
could with ordinary care have detected that the person served was drunk. If he served a drink to a
person who was in fact drunk, he was guilty. Stephen J stated:
Here, as I have already pointed out, the object of this part of the Act is to prevent the sale of
intoxicating liquor to drunken persons, and it is perfectly natural to carry that out by throwing on
the publican the responsibility of determining whether the person supplied comes within that
category.

4.5 ISSUES OF SOCIAL CONCERN

a. Is There Any Purpose In Imposing Strict Liability?
The courts will be reluctant to construe a statute as imposing strict liability upon a defendant,
where there is evidence to suggest that despite his having taken all reasonable steps, he cannot
avoid the commission of an offence. See:
Sherras v De Rutzen [1895-9] All ER Rep 1167
Lim Chin Aik v R8 The defendant had been convicted of contravening an order prohibiting in
absolute terms, his entry into Singapore, despite his ignorance of the order's existence. In allowing
the defendant's appeal, Lord Evershed expressed the view that the imposition of strict liability
could only really be justified where it would actually succeed in placing the onus to comply with
the law on the defendant. If the defendant is unaware that he has been made the subject of an order
prohibiting him from entering a country, the imposition of strict liability should he transgress the
order would not in anyway promote its observance. Lord Evershed stated:
"But it is not enough in their Lordship's opinion merely to label the statute as one dealing with a
grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire
whether putting the defendant under strict liability will assist in the enforcement of the regulations.
That means that there must be something he can do, directly or indirectly, by supervision or
inspection, by improvement of his business methods or by exhorting those whom he may be
expected to influence or control, which will promote the observance of the regulations. Unless this
is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed
strict liability merely in order to find a luckless victim."

8
[1963] 1 All ER 223.
 b. Classification of Strict Liability Offences
In Sherras v De Rutzen (1895), Wright J stated that apart from isolated and extreme cases like
bigamy and abduction of a girl under sixteen, the principal classes of strict liability may perhaps
be reduced to three:
 One is a class of acts which are not criminal in any real sense, but are acts which in the public
interest are prohibited under a penalty (eg, the sale of adulterated food: Roberts v Egerton,
1874).
 Another class comprehends some, and perhaps all, public nuisances: R v Stephens (1866)
where the employer was held liable on indictment for a nuisance caused by workmen without
his knowledge and contrary to his orders.
 Lastly, there may be cases in which, although the proceeding is criminal in form, it is really
only a summary mode of enforcing a civil right (eg, see Hargreaves v Diddams (1875) as to
a bona fide belief in a legally impossible right to fish).
But, except in such cases as these, there must in general be guilty knowledge on the part of the
defendant, or of someone whom he has put in his place to act for him, generally, or in the particular
matter, in order to constitute an offence.

c. Examples of Acts imposing strict liability in Uganda are;

 The Traffic and Road safety Act, s.35 e.g, no person shall drive any class of motor vehicle,
trailer or engineering plant on a road unless he or she holds a valid driving permit or a valid
learner driving permit.
 Trading with the Enemy Act cap. s.2, any person who trades with the enemy within the
meaning of the act commits an offense of trading with the enemy and is liable on conviction
to imprisonment for a term not exceeding 7 years.
 Firearms Act Cap any person found in possession of a firearm without a valid firearm
certificate is guilty of an offense
 The Liquor Act cap 93, s.2 no person shall sell liquor anywhere in Uganda unless he or she is
licensed to do so by a licensing authority under the act
 Penal code Bigamy, s.153, defilement s.129(1) any person who unlawfully has sexual
intercourse with a girl under 18 commits an offense, abduction s.126
 S.129 of the Penal Code (Amendment) Act . Any person who performs a sexual act with
another person who is below the age of 18 years, commits a felony known as defilement and I
son conviction liable to imprisonment for life.

d. How is a particular offense to be recognised as one of a strict liability nature?

The absence of a word or phrase imputing a requirement of a mental element such as knowingly,
intentionally, recklessly is considered very important, but it is not a determining factor. There are
cases where mensrea has been required to be proved where no such word was used in the statutory
provision.

Cases:
Warner v MPC [1968] 2 All ER 356 (the first strict liability case to reach the House of Lords)
Alphacell v Woodward [1972] 2 All ER 475
Smedleys Ltd v Breed [1974] 2 All ER 21
R v Howells [1977] 3 All ER 417
R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
PSGB v Storkwain [1986] 2 All ER 635.
Abdallah v R 1964 E.A 270

4.6 VICARIOUS LIABILITY

Vicarious liability, which is common in some areas of the law, refers to legal responsibility for the
acts of another or liability for the acts of another. i.e, if a law holds X responsible for Y’s actions,
then X’s liability is said to be vicarious. In Criminal law, vicarious liability may be intended to
refer only to cases that hold X criminally responsible for Y’s conduct based on the relationship
between X and Y or sometimes the term may be used to describe X having liability for Y’s conduct
even though X was not at fault.

Under any definition, criminal law disfavours vicarious liability. The general rule is that one is
liable only for one’s own actions and not for the actions of others. Some authors argue that
vicarious liability and direct liability are confused. i.e. parents for example, sometimes face
criminal liability for allowing their minor children to use guns or automobiles or to skip school.
These crimes it is argued are examples of direct liability, not vicarious liability because the statues
explicitly hold the parent liable for the parent’s own act (e.g negligently storing a weapon) or
omission.

Criminal law doesn’t generally employ vicarious liability because in many respects vicarious
criminal liability would violate either or both of two basic principles of the criminal law. According
to the first principle, the actus reus requirement, a person cannot be guilty of a crime unless the
persons’ guilty conduct includes a voluntary act or omission. By holding a person liable for the
conduct of another, vicarious liability undermines the principle of actus reus requirement. Just as
importantly, vicarious liability may violate the second principle, that criminal liability must be
based on personal fault.

Therefore it may be right for one to conclude that vicarious liability would often run afoul of basic
precepts that require an actus reus and mensrea for criminal responsibility.

1. Vicarious Liability and Strict Liability distinguished

Vicarious liability should also be distinguished from the closely related concept of strict liability.
Under strict liability, the defendant must engage in prohibited conduct, but the separate
requirement that the defendant has a guilty mind- some degree of fault is removed. Vicarious
liability, in contrast dispenses with the requirement that the defendant engage in the prohibited
conduct, instead holding the defendant liable for the conduct of another. For example a law holding
X liable for selling alcohol to Y, a minor, even though X reasonably believed Y was over 21,
imposes strict liability. A law holding W, X’s employer, liable for X’s sale to Y imposes vicarious
liability.

Laws can and sometimes do impose strict and vicarious liability simultaneously- for example a
law that held W liable for X’s sale to a minor even though W and X had taken reasonable
precautions to avoid such sales. However, laws can also impose either kind of liability separately.
A statute may require mensrea and yet impose vicarious responsibility. Or it may impose strict
liability without imposing vicarious liability. i.e being in possession of a firearm without a license.

2. Vicarious liability operates generally on two principles

 Where the master delegates a duty imposed upon him on to a servant.

 Secondly where a master is held liable because acts which are done physically by the servant,
may in law be the masters acts.

4.7 THE DELEGATION PRINCIPLE

Where a statute imposes a duty on a particular person, e.g the holder of a justices’ license and that
person delegates the performance of the statutory duty to another, he may be held liable for
breaches of it committed by the delegate, even though mensrea is required. The mensrea of the
delegate is sufficient to impose liability on the delegator for breach of the duty which is imposed
on him and him alone.

A good illustration of the application of this principle may be found in the case of;
Allen v Whitehead9; Under the Metropolitan Police Act 1839, s.44, it is an offense to ‘knowingly
permit or suffer prostitutes or persons of notoriously bad character to meet together and remain
in a place where refreshments are sold and consumed’

D the occupier of a café, while receiving the profits of the business, didn’t himself manage it, but
employed a manager. Having had a warning from the police, D instructed his manager that no
prostitutes were to be allowed to congregate on the premises and had a notice to that effect
displayed on the walls. He visited the premises once or twice a week and there was no evidence
that any misconduct took place in his presence. Subsequently on eight consecutive days a number
of women known by the manager to be prostitutes met and remained on the premises between 8pm
and 4 am, indulging in obscene language. It was held by the divisional court that D’s ignorance of
the facts was no defense. The act of the servant and his mensrea were both to be imputed to his

9
[1929] ALL ER 13
master, not simply because he was a servant, but because the management of the house had been
delegated to him.

In the case of Vane v Yiannapoulous10

The respondent was the holder of a restaurant license. A condition of the license was that liquor
should not be sold except to persons taking meals. The restaurant was on two floors. While the
respondent was on one floor, conducting the business of the restaurant, a waitress on the other
floor sold liquor to customers who had not ordered a meal. The waitress had been instructed to
serve liquor only to customers ordering a meal. The respondent didn’t know about the sales.

A charge of knowingly selling intoxicating liquor to persons to whom he was not entitled to sell,
contrary to section 22 of the Act was dismissed by the justices. The prosecution appealed and its
appeal was dismissed on the ground that the respondent had not delegated to the waitress the
management of the business.

In this case the court stated that there had been no delegation of authority in the sense in which the
word has been used in various cases, because in this case the licensee was himself controlling the
premises and had given direct instructions to the persons in his employment (including the waitress
who served the liquor) that these terms had to be strictly observed.

There was no delegation and therefore the master could not be held liable for the breach of his
servant.

It should be noted that if the licensee’s delegate sub-delegates his responsibilities, the licensee is
liable for the sub-delegate’s acts, but he is not liable for the acts of an inferior servant to whom
control of the premises has not been delegated.

10
[1964]3 W.L.R 12
In the case of R v Winson11 , The appellant was a director of a company which owned a club and
the holder of a justices’ on license in respect of the club. It was a term of the license that liquor
should not be sold to anyone who had been a member for less than 48 hours. Liquor was sold in
breach of this term. At the material times the club was run by a manager appointed by the managing
director. The appellant who also held licenses in respect of three other premises, visited the club
only occasionally. He was charged under s.161 (1) of the licensing Act.

Where there is true delegation then the knowledge of the servant or agent becomes that of the
master or principal. Where a man wholly absents himself leaving somebody else in control, he
cannot claim that what has happened has happened without his knowledge if the delegate has
knowingly carried on in contravention of the license.

Lk at the case of Linnett v Metropolitan police Commissioner12 Lord Goddard in this case said;

‘The point doesn’t depend merely on the fact that the relationship of master
and servant exists; it depends on the fact that the person who is responsible
in law as the keeper of the house, or the licensee of the house if the offense
is under the licensing act has chosen to delegate his duties, powers and
authority to somebody else’.

When an absolute offense has been created by parliament, then the person on whom a duty is
thrown is responsible whether he has delegated or whether he has acted through a servant; he is
absolutely liable regardless of any intent or knowledge or mensrea. The principle of delegation
comes into play, and only comes into play , in cases where though the statute uses words which
import knowledge, or intent, nevertheless it has been held that a man cannot get out of the
responsibilities which have been put on him by delegating those responsibilities to another

11
[1968] 1 ALL ER 197

12
[1946] KB 290
4.8 WHERE THE SERVANT’S ACT IS THE MASTER’S ACT IN LAW
The master will be held criminally responsible for those acts that may be committed by the servant
where those acts are in law deemed to be acts of the master. This mostly arises where the offense
is one of a strict liability nature. i.e where selling is the central feature of the actus reus, under acts
like the sale of goods act cap 82. A sale under the sale of Goods Act consists in the transfer of
property in the goods from A to B and the seller in law is that person in whom the property in the
goods is vested at the commencement of the transaction. Therefore when goods are sold by a shop
assistant, the seller is the owner of the goods, the employer. If the goods are sold with a false trade
description, it is the owner of the shop who has so sold them, even if he is on holiday at a Miami
Beach in florida at the time. Of course he has no mensrea, but if the offense is one of strict liability,
that will not help him. He will be held to have committed the offense.

In the case of Coppen v Moore13; D owned six shops, in which he sold American hams. He gave
strict instructions that these hams were to be described as breakfast hams and were not to be sold
under any specific name of place of origin. That is to say, they must not be described as Bristol,
Bath, Wiltshire or any such title bust simply as breakfast hams. In the absence of D, and without
the knowledge of the manager of the branch, one of the assistants sold a ham as a scotch ham. D
was convicted under the Merchandise Marks Act of selling goods to which any false trade
description is applied.

It cannot be doubted that the appellant sold the ham in question, although the transaction was
carried out by his servants. In other words, he was the seller although not the actual salesman. The
appellant had committed an offense of selling under a false trade description.

13
[1898] 2 QB 306