Научная статья на тему 'The principle of strict liability'

The principle of strict liability Текст научной статьи по специальности «Философия, этика, религиоведение»

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Ключевые слова
STRICT LIABILITY / MENSREA / TORT LAW / CRIMINAL LAW

Аннотация научной статьи по философии, этике, религиоведению, автор научной работы — Arnold Galiakbarov

This article provides for the legal analysis of modern approaches to the issue of the principle of strict liability in criminal and tort law.

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Текст научной работы на тему «The principle of strict liability»

THE PRINCIPLE OF STRICT LIABILITY

Arnold Galiakbarov, Master of civil and labor lawof the Peoples ’ Friendship University of Russia, Moscow

E-mail: Arnold3000@narod.ru

Abstract. This article provides for the legal analysis of modem approaches to the issue of the principle of strict liability in criminal and tort law.

Key words: Strict liability, Mensrea, tort Law, criminal law.

Strict liability is one of the basic elements in the criminal law principles. It identifies that a person is legally responsible for his or her omissions or acts that have been performed voluntary with intend, purpose, knowledge and other mental state. In addition, strict liability convicts defendant, despite their ignorance. To impose criminal liability several elements must be established: Actus Reus and Mens Rea. For the strict liability Mensrea is not necessary required, some lawyers refer to those offences requires no mensrea at all as imposing absolute liability and those requiring no mensrea as to an element of the actusrea as imposing strict liability [6]. However, some offences should be characterized with the respect to any material element (‘pure’ strict liability) and offences when no mensrea is required to one element, but required to another element (‘impure’ strict liability) [7]. Sometimes the defendant might have a defense of ‘due diligence’. For the some reason, offences like this might neglect the mensrea requirement, so they should be considered as imposing liability in this first sense [8]. Finally, some offences, allow the assertion of affirmative defenses as a mistake of fact, and offences that prohibit the assertion of affirmative defenses (“absolute liability”) [9]. Strict liability is commonly used in tort and criminal law. In this essay, the meaning of strict liability would be described in order to find its advantages and disadvantages in criminal law, and where it should apply and where not. Finally, the evaluation of the strict liability element and its reason will be established and conversed.

First of all, the term strict liability applied in Gammon (Hong Kong) Ltd v Attorney-General (1985). The key feature of this case was in finding builders liability of the collapsed building, however builders tried to appeal in condition of

their ignorance. The Privy Council held that the regulations created offences of strict liability and he convictions were upheld. In this case, the court actually decided for themselves and based the decision on the explanation that there should be a presumption of law that mensrea is required before a person can be held guilty of a criminal offence [9]. Another example of the strict liability can be found in every state, they are offences that include the selling of tobacco or alcohol to underage person as the society is concerned with the prevention of harm these laws will be enforced, but sometimes the law operates unjustly in some cases. For instance, the case that occurred in 1986 when Pharmaceutical society of Great Britain accused pharmacist of supplying drugs to a patient with a falsified prescription, even if the House of Lords concluded that there was no pharmacist fault the pharmacist was convicted. At this stage, the strict liability shows its incompetence. However after, this incident pharmacists increased they care in order to avoid false accusations.

One of the major issues in strict liability is the result of mistake, in particular wherever strict liability is applied; an accused cannot use the defense of mistake, even if the error was reasonable. Once in the case of B (a minor) v DPP the House of Lords deceived the judgment according to this distinguish between mistakes that have been made in relation to offences when required mensrea and liability offences. The importance of this distinction is, for example the case involves an offence that required mensrea, and everything that linked with strict liability was obiter dicta and not binding for future courts [6].

The term strict liability was thoroughly examined by Douglas Husak; his general aim was in finding a core by unifying concept of substantive strict liability and its reflection [10]. Husak considered that offence is entailing strict liability if it allows a defendant to be convicted of an offence through he is substantially less at fault that the paradigm perpetrator of that offence. Husak presumed that offender whose quantum of the fault lies within fairly narrow boundaries, and no one can say that an offence entails strict liability plainness [10]. Whatever Husak says, Andrew Simester sees Husak generalization of culpability paradigm as very perilous. In details, the determination of such an offence would let a defendant to be convicted despite the low level of guilt that have been done by typical perpetrator [1]. Therefore, regardless the complex of offences, it is unclear how should any element of the offence to be measured. Another example, is the paradigm perpetrator of murder more like the son who deliberately kills his frantically ill father in order to save him from further suffering [11], or the barbarous stepfather who inflicts indescribable cruelty on his 6 year-old stepson in the process of killing him [12]. The question is who deserves bigger punishment, mercy killer or the child killer. The answer is for such case of intentional murder involves strict liability.

Argument in favor of strict liability are starting with the promotion of care, Barbara Wotton supported strict liability on this basis, she suggests if the general

objective of criminal law is the prevention of social harmful activities, therefore she made it clear that carelessness, negligence or an accident are criminal offences that should be penalized. It is true that the prevention measures are working well in preventing recidivism but also encouraging individuals to look for holes in laws in order to defend themselves in courts, for this reason strict liability seems to be reasonable. A good example is Deterrent value in strict liability is its strong provision of deterrent. The special government bodies were designed to check the safety rules that have been applied in health and safety inspectorate, those bodies are pursuing goals to cut off breaches. However, even if strict liability authority enforces these agencies, potential offenders may be aware that if a trial is carried, there is always a chance of conviction. Furthermore, strict liability could impose crime easier; for example in Gammon offence the Privy Council concluded that the administration of justice might halt if mensrea had to be proven in every minor offence. Moreover, mensrea is eventually the hardest thing to prove in the court, besides just ignorance might set the guilty free. Few precedents appeared after BP’s oil platform accident, without liability BP might have been evaded penalties, which is truly unfair in this situation. In addition, large corporations are always looking for extra profits by cutting expenditures on expensive programs like utilization or safety regulations. The company is taking a risk that making its liable of any consequence that could cause harm.

Strict liability is sometimes being criticized for injustice in several areas. In particular, Justice sometimes not interested inthe fact that someone who has taken sensibleattention, and could not possibly avoid committing an offence, should be punished by the criminal law. This goes against the principle that the criminal law punishes fault [6]. Therefore, the argument that in spite of mensrea seemed to be problematic to prove the strict liability is likely to be enforced appeared to be morally dubious, for example a rape charge, the prosecution sometimes is unable to find enough evidence to proof the mensrea. Sometimes offences emerged to be strict liability crimes, but different crimes like Gammon, this case is clearly less crime, so it is not in the interest of justice to impose strict liability there, in relation with mensrea difficulties. It is erratic decision to convict someone who probably not, for just imposing small penalty. Even if the little penalty imposed sentencing might ruin the reputation of the company that sells accidentally defected item. In 2005 Smith and Hogan found out that, in the jury trial, strict liability, questions the facts away from juries directly to judge for his sentencing. In a court of magistrates, those questions are being removed from the requirements for proof beyond rational hesitation. However the courts are allowed to decide according to the principles that are less strict [6]. Delegated agencies on some stages are likely to proceed with the conviction rather than considering additional arguments.

Next critique of the strict liability is its effectiveness, especially the deterrent

factor that may not be the chances of being convicted rather than being caught and fined. The problem lies in the cases when the chance of being caught and fined is not high. Agencies that are responsible for monitoring offences, occasionally if the offender was caught the most common response is agency warning letter, naturally for the serious offenders may be threatened with the prosecution, but not every offender will be prosecuted. Furthermore increasing support for these agencies might have a stronger impact than imposing liability on the minority is prosecuted. In some areas, strict liability might have an opposite effect, for example understanding the fact that a person might still be convicted regardless necessary precautions is reducing the inducement for taking such measures. The strict liability is also breaches the requirement for fair warning as there is a possibility for the citizens who may have no way of knowing or predicting when they might be about to incur criminal liability [3]. Citizens are requiring protection from non-stigmatic offences, and sometimes from random liability. According on the rule of law every citizen should have a reasonable chance to evade criminal labels and sanctions. Thus, liability without fault undermines the general confidence of staying on the right side of the law [1]. Finally the crimes that have been determined as strict liability crimes are not always crimes of this area; therefore the decisions are weakening the deterrent effect. Whether the existence of the fact that Strict Liability will be imposed rests on the inaccuracy of the statutory interpretation means that there are differences in both offences to which it is applied, and what it actually means [6]. The principle that cases should be threatened similar is destabilized by interests of society, especially to the cases that have been changed over the years.

The Strict Liability element had been converged during the time and every time when the justice of courts used the strict liability element lawyers question the decision. The justification of strict liability is in its balance between the actual danger and prevention matter. Some lawyer believed that the criminal law needs reforms in strict liability elements. A clear framework is needed for the imposition of strict liability in creating and drafting criminal offences [5]. Therefore, Strict Liability should not be imposed for imprisonment offenses. Moreover, there should be a clear denotation of use of Mens Rea use. Legislation should dispense with mensrea due to diligence defense in every aspect of the offence. In Australia, a defense of all due care is available, and the defendant can avoid conviction by supplying the court with the information that all prevention measures were provided to avoid the umbrage. However, this is a negligence offence, the burden of proof is placed on the perpetrator in order to avoid liability. Reid suggests that minor offences should be replaced by regulatory penalties and could be punished by a fine but enforceable by the police department and other agencies with secured fines, with court proceedings being available where there are aggravating features, the fixed penalty is not paid or liability to the fixed penalty is disputed and any available administrative review is unsuccessful

SCIENCE TIME

[5]. Lastly, the difficulties of strict liability may really lead into the net reduction in overall justice of the criminal law. Probably adopting new solution to the problems might not always be the right ones. Conclusively, the strict liability element should be balanced, only because the responsibilities for various offences might be differ. In addition, punishment cannot always be a blind solution for every problem.

Bibliography:

1. Simester, Appraising Strict Liability (Oxford 2005).

2. Wotton, Crime and The Criminal Law: reflections of a Magistrate and Social Scientist (2nd edition London 1981).

3. Ashworth, Principles of Criminal Law (3rd Edition, Oxford 1999).

4. Jackson, Storkwain: a case Study in strict liability and self-regulation (1991).

5. K. Reid, Strict Liability: Some Principles for Parliament (Oxford 2008)

6. Elliott & Quinn; Criminal Law (9th edition. 2012).

7. A.P. Simester and G.R.Sillivan, Criminal Law: Theory and Doctrine (2nd Edition. Oxford 2003).

8. A.Ashworth and M.Blake, “The Presumption of Innocence in English Criminal Law” (1996).

9. H.Gross, A theory of Criminal Justice (Oxford 1979).

10. Husak, ‘Varieties of Strict liability (1995).

11. State v. Forrest 363 SE 2d 252 (NC 1987).

12. State v. Sepulvado 655 So. 2d 623 (La. 1995).

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