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Common Law Review
 
Domů arrow Články arrow Issue 1 - The British Constitution arrow 11: Lenka Mikulcová - Strict Liability in English Criminal Law
11: Lenka Mikulcová - Strict Liability in English Criminal Law PDF Tisk E-mail

Strict Liability in English Criminal Law

Recent House of Lords Judgements

 

Lenka Mikulcová

 

 

One of the most interesting cases to be heard in the House of Lords last year was B (By His Mother and Next Friend) v Director of Public Prosecutions. It deals with the basic principles of two important branches of law, criminal and constitutional law, and it is almost certain we will hear more about this case in the future.

 

The facts are as follows: a 15-year-old boy was charged with the offence of inciting a child under 14 to commit an act of gross indecency, contrary to s. 1(1) of the Indecency with Children Act 1960. The defence was simple - the boy contended that he believed the girl to be 14 or over. Nevertheless, he was found guilty by the Harrow Youth Court and this ruling was affirmed by the Divisional Court. Several questions had to be determined by the House of Lords:

 

1)         Can the defendant be acquitted of this offence if he holds or may hold an honest belief that the child was 14 years or over?

2)         Must the belief - that is mistaken belief - be reasonable?

3)         On whom does the burden of proof lie?

 

Question 1

 

This is the cardinal question of the case because it is the one that touches on the fundamental principles of criminal and constitutional law - in particular the issue of strict liability in criminal law - even though it is in fact a question of statutory interpretation. Any Czech lawyer would no doubt consider the idea of strict liability in criminal law unusual and incredible, if not abhorrent. However, let us briefly examine the relevant case law.

 

The starting point is the common law presumption that mens rea (the mental element of the offence) is an essential ingredient of every criminal offence, i.e., nobody can be found guilty unless he had a "guilty mind" at the time of committing the offence. However, Parliament can expressly or by necessary implication rule this principle out and thus create an offence of strict liability. Such a power can create serious inroads into the fundamental principles of criminal law and therefore is subject to close scrutiny exercised by the courts by means of interpretation of the relevant statutory provisions. The leading authority on this subject coming from Sweet v Parsley (1970) is as follows:

 

Lord Reid: "... whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea ... it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary." (Emphasis added.)

 

Lord Diplock: "...a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent." (Emphasis added.)

 

What is the position in the present case then? Should we support the view that as far as the Indecency with Children Act 1960 is concerned, Parliament intended to create an offence of strict liability? As there is no express exclusion of the common law presumption, is it necessary to resort to the necessary implication reasoning? There are strong arguments for and against. Even though the Law Lords unanimously rejected the arguments for (i.e. those presented by the Crown and the respondent) and allowed the appeal, the speeches of both counsel are worth examining because they present an exceptional example of a clash between several fundamental principles of English law.

 

Two major arguments were put forth by the prosecution. Firstly, it was contended that it is necessary to protect children against criminal conduct of the sort covered by the Indecency with Children Act. It surely is, but however compelling, this argument should not in itself displace well established principles of criminal law, especially where it will have serious adverse consequences for the defendant, that is, to affect the core conditions of liability in criminal law. The other argument is a traditional one - it uses the case R v Prince (1875) and, surprisingly, provides a fairly solid ground for the arguments of the prosecution. The case concerned the statutory offence of unlawful abduction of a girl under the age of 16 for which the defendant was held guilty even though he honestly believed she was over 16 and had reasonable grounds for holding this belief. It transpires from the reasoning of the Law Lords that this is indeed a strong argument. Moreover, the overruling of a precedent, even one more than a century old, is always a matter of great concern. However, on this occasion the House of Lords proved it can find a way to do so if necessary.

 

Lord Steyn observed: "... Prince's case was cited in Sweet v Parsley but was not mentioned in any of the [ensuing] judgements. The view may have prevailed that it was not necessary to overrule it because its basis had gone and that the principle laid down in Sweet v Parsley would in future be the controlling one. ... Moreover, Prince's case is out of line with the modern trend in criminal law which is that a defendant should be judged on the facts as he believes them to be: DPP v Morgan (1976) ... ... For all these reasons I would reject counsel's attempt to reinvigorate Prince's case: it is a relic from an age dead and gone." (Emphasis added.) Now that Prince is dead, long may Sweet v Parsley live. In addition to Sweet v Parsley there are other authorities to support the contrary view (the appellant's view), primarily DPP v Morgan (1976), Beckford v The Queen (1988) and R v Williams (1983). These cases also provide the answer to our second question - the (mistaken) belief the defendant holds must be honest but not necessarily reasonable.

 

Question 2

 

This is a manifestation of a deeper principle of criminal law - a defendant should be judged on the facts as he believes them to be (DPP v Morgan). We are now moving away from objectivism to subjectivism. Citing Lord Steyn again: "It is now settled as a matter of general principle that mistake, whether reasonable or not, is a defence where it prevents the defendant from having the mens rea which the law requires for the crime with which he is charged." However, this would seem to be contradictory to the reasoning in Sweet v Parsley (see above).

 

There is another fairly strong argument supporting the appellant's case - and now, principles of constitutional law come into play - the doctrine of Parliamentary sovereignty and the principle of legality. "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." (Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms (A.P) Secretary of State for the Home Department, ex parte O'Brien (Consolidated Appeals), 8 July 1999.)

 

"... I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament." (Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Pierson (A.P.), 24 July 1997.)

 

"... Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary... ...Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural..." (Lord Steyn in R v Pierson)

 

This principle of legality was stated in the classic and often cited textbook: "Statutory Interpretation" by Sir Rupert Cross. As he explains, presumptions like the present one (mens rea required in the case of statutory crimes) "...not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate as constitutional principles which are not easily displaced by a statutory text".

 

Question 3

 

As to the third question, the answer is simple - "throughout the web of the English criminal law one golden thread is to be seen, that it is the duty of the prosecution to prove the prisoner's guilt" (Viscount Sankey L.C. in Woolmington v DPP [1935]).

 

Well, times are a-changing and even English law in all its antiquity and continuity has to conform to the modern world and modify its dogmatic principles and ancient precedents so as not fall into disrepute by those who have to live by it.        

 

Sources:

full-text judgements:

B (By His Mother and Next Friend) v Director of Public Prosecutions, 23 February 2000

R v Secretary of State for the Home Department, ex parte Simms (A.P) Secretary of State for the  

     Home Department, ex parte O´Brien (Consolidated Appeals), 8 July 1999

R v Secretary of State for the Home Department, ex parte Pierson (A.P.), 24 July 1997

 

Lenka Mikulcová

Lenka Mikulcová is Attorney-at-law trainee at Hruška Klouček Sládek Topinka & Džmuráňová attorneys-at-law. She graduated from Charles University Law Faculty in 2001.

 
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