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.

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 Cocq (1884) 13 QBD 207. 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.

also Sherras v De Rutzen [1895] 1 QB 918

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, wilfully, 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 Lemon [1979] 1

ALLER 898 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.

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 Kong

[1985] 2 All ER 503, 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 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.

a. 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

Rutzen [1895-9] All ER Rep 1167:

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 Rutzen [1895-9] All ER Rep 1167:

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."

b. GRAVITY OF PUNISHMENT

As a general rule, the more serious the criminal offence created by

statute, the less likely the courts are to view it as an offence of strict

liability. See:

Sweet v Parsley [1969] 1 All ER 347.

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 drugtaking,

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.

c. 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 Cocq (1884) 13 QBD

207.

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 s13 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 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.

d. ISSUES OF SOCIAL CONCERN

See the comments in: Gammon (1985) and R v Blake (1996), above.

e. 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 R [1963] 1 All ER 223.

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."

f. 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.

Examples of Acts imposing strict liability in Uganda are;

The Traffic and Road safety Act, 1998 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 364. 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 299 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 2007. 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.

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.