Differences Between Strict And Absolute Criminal Liability Law Essay

Differences Between Strict And imperious Criminal Liability Law olfactory sensation forIn general, the nefarious indebtedness requires the validation of both actus reus and mens rea before convicting a person. When the necessity for the prosecution to prove mens rea (in the sense of intention, knowledge or recklessness, or even negligence) regarding the actus reus elements of the crime is disregarded, either expressly or impliedly, the offence in question is described as rigorous or unquestioning indebtedness offence.What is the distinction (if any) between absolute and stern obligation offences? Give examples of each.First, it determines what the prosecution mustiness prove.Strict obligation offences do not require proof of mens rea in respect of at least bingle element of the actus reus, unremarkably the essential one. However, proof of mens rea whitethorn be required for some of the elements of the actus reus. Absolute liability offences do not require proof of any mens rea element, that ar satisfied by proof of the actus reus only.Second, the distinction provide be seen by examining the supply of causationIn unbending liability, the prosecution is required to prove the causation of the actus reus and the offence. In Empress Car Co (Abertillery) Ltd v field Rivers Authority 1998 HL, the lordship utter that, While liability for water pollution is strict and therefrom includes liability for certain deliberate acts of third parties it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendants land, regardless of how this happened. It must still be possible to say that the defendant caused the pollution.In absolute liability, however, a crime may not require any causation link at all, if the specified state of affairs exists. In Winzar v Chief Constable of Kent (1983), the defendant was removed from a infirmary by police and was then arrested and found blamable of existence drunkard on the highway, even though the police officers had put him there. The court held that it was liberal to show that D had been submit on the highway and was perceived to be drunk. It didnt matter that his presence on the highway was momentary and involuntary.Third, it determines what self-abnegations are operable to the defendantMany academic papers differentiate strict and absolute liability offences by the availability of the defence of mistaken yet middling belief, a common practice of law defence. Where they are available liability is strict, where it is not available liability is absolute.The stead is made complex in role where defence are provided in the statue for the defendant to escape liability. If common law defence is held by court to be excluded from the offence, does the provision of statutory defence disqualify the offence to be an absolute one? Or that it is the constitution of the offence that automatically categorized the offence as absolute liability?In the result HKSAR and SO WAI LUN, the court of appeal has the opportunity to look into the case B (A Minor) v DPP, and made the following observation.Section 5 of the Sexual Offences Act 1956 made it an offence for a person to bring on unlawful inner intercourse with a girl under 13 while section 6 made it an offence in recounting to girls under 16. Under section 6, a defence was expressly clip out where the defendant, provided he was under the age of 24, believed the girl to be 16 or over As to the effect of these two offences, Lord Steyn said at 469A B that since section 5 contained no such defence, it plain created an offence of absolute liability. So the court is suggesting that unlawful underage sexual intercourse, a traditional well-known example of absolute liability, willing not be considered as absolute liability per se in the present of statutory defence in the provision. This observation is reaffirmed in the recent case Hin Lin Yee v HKSAR by J udge Chan PJ in para. 198 (ii) and (iii).In other legal power like Australia, the distinction of strict and absolute liability is even foggy by the fact that common law defence like imprisonment and self defence whoremonger be available for absolute liability.How does one determine if an offence is one of strict or absolute liability?The question of whether a statutory offence requires proof of mens rea or is strict liability is treated as a matter of statutory construction, the statutory provision enacting the offence must be construed to determine the legislative intention. In Gammon (Hong Kong) LTD v A-G of Hong Kong 1985 PC, the lordship has summarized the approach to the interpretationThere is a assumption of law that mens rea is required before a person can be held guilty of a criminal offence.The presumption is especially strong where the offences is sincerely yours criminal in character.Truly criminal offence usually refers those dealing with violence against persons o r property. The presumption is particularly strong because of the stigma given up to the offence.The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute.Sometimes the offence will expressly specify the type or level of mental disruption by using words such as willfully, recklessly, carelessly, etc. In such cases, the court must then go on to settle the precise meaning of those mens rea words.Where a statute is silent as to the mens rea for an offence, the courts must decide as a matter of general principle or statutory interpretation what level or type of mens rea applies.The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and semi prevalent safety is such as issue.Strict liability has often been imposed in regulatory offences concerning social concern and public safety, such as licensing, pollution, health and saf ety, driving offences, environmental offences, public health offences.Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can in like manner be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater attention to prevent the commission of the prohibited act.In Lim Chin Aik v R, the defendant had been convicted under the immigration laws of Singapore by remaining there (after entry) when he had been prohibited of entering. The aim of the law was to prevent illegal immigration. The defendant had no knowledge of the prohibition order and there was no evidence that the government activity had attempted to bring the prohibition order to his notice. Since there was nothing D could have done to determine whether a order had been made against him and so ensure compliance with the relevant legislation, the Privy Council ordered that the offence was not one of strict liability because it did nothing to promote enforcement of the law.What policies are tooshie the creation of absolute and strict liability?It is said that the imposition of strict liability encourages greater observance of and compliance with law, and this is particularly important where matters of public safety, public health and public welfare are concerned. High standards can be achieved and maintained only if those conducting activities involving risks to safety, health, the environment and so on are made to feel that it is not enough just to take sensitive care they must take all possible care. Secondly, it is said that strict liability, by relieving the prosecution of the task of investigating and proving mens rea against an alleged offender, enhances the efficiency of our administrative and judicial systems.In HIN LIN YEE ANOR v HKSAR, Ribeiro PJ pointed out a reason in particular why absolute liability should be created. Absolute liability can impose duty on a person (which may be a corporate body) where the conduct or task which is the field of force of the duty is in practice likely to be carried out by someone else, such as an employee or a contractor. It makes it insufficient for the employer passively to assert an honest and reasonable belief. It promotes proactive management and diligent watch on his part to see that the duty is in fact being properly discharged.How do the concepts of absolute and strict liability assist or hinder the Prosecution, the Accused and the Court in a criminal mental testing?The concept assists the prosecution in a criminal trial since it relieves the prosecuting officer of the virtual impossibility of proving intent or knowledge of the wrongful conduct, particularly where the defendant was a company rather than an individual. No significant term of enlistment is observed for prosecution in regard to the application of concept.The concept assists the accuse in a criminal trial since strict liability railroad tie a clear line between legality and illegality, which may flinch the information cost for the general public to determine whether he is guilty or not. Unnecessary legal fee may also be saved in this regard.On the other hand, the concept hinders the accused in a criminal trial since it impose liability on volume who have taken all possible steps to prevent the offence being committed and should not be blameworthy. The onus of proof is also reversed to the defendant side.The concept assists the court in a criminal trial since it allows the court to strike down the many bogus defense that would otherwise succeed if excusable ignorance or mistake were always legitimate as defense.On the other hand, the concept hinders the court in a criminal trial since the courts need to engage in time consuming debates about whether the legislature intended strict or absolute liability to apply. The difficulties in identifying strict liability offences can be seen from the inconsistent post and decisions. Also, the court need to justify the creation of strict liability does not per see contravene with the Bill of Rights. SO WAI LUN v HKSAR 2006 HKCU 1195