Distinction Between Absolute And Strict Liability Offences Law Essay

Distinction Between Absolute And rigorous Liability Offences Law EssayIn general, the guilty financial obligation accepts the inference of both actus reus and mens rea originally convicting a person. When the necessity for the prosecution to prove mens rea (in the guts of feelion, cognition or recklessness) regarding the actus reus elements of the offensive activity is disregarded, either expressly or impliedly, the offensive in question is described as unforgiving or out-and-out(a) indebtedness offence.What is the an nonation (if any) between strong and inexorable indebtedness offences?The distinction sens be seen by what the prosecution must prove.Strict liability offences do not require proof of mens rea in respect of at least star element of the actus reus, usually the essential element. However, proof of mens rea whitethorn be required for more or less of the elements of the actus reus. Absolute liability offences do not require proof of any mens rea element , but are satisfied by proof of the actus reus alone.The distinction can be seen by examining the issue of creatorIn strict liability, the prosecution is required to prove the causation of the actus reus and the offence. In Empress Car Co (Abertillery) Ltd1, the lordship said that, While liability for water pollution is strict and therefore 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 get away from the suspects land, irrespective of how this happened. It must still be realistic to say that the defendant ca employ the pollution.In absolute liability, however, a crime may not require any causation link at all, if the specified state of personal matters exists. In Winzar2, the defendant was removed from a hospital by legal philosophy of nature and was then arrested and found guilty of being drunk on the highway, in time though the police officers had put him there. The philander held that it was enough to show that D had been present on the highway and was perceived to be drunk. It didnt matter that his heraldic bearing on the highway was momentary and involuntary.The distinction can be seen by what defences are available to the defendantMany academic papers come apart strict and absolute liability by the availability of the defence of expert but mistaken belief, which is a common law defence. Where it is available the liability is strict, where it is not available the liability is absolute.The situation becomes complex in theme 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 an offence from being absolute?In the case HKSAR v So Wai Lun3, the court of appeal has the opportunity to look into the case B (A Minor) v DPP4, and made the following observation.Section 5 of the Sexu al Offences come 1956 made it an offence for a person to bewilder unlawful intimate intercourse with a girl down the stairs 13 while constituent 6 made it an offence in relation to girls under 16. downstairs section 6, a defence was expressly set out where the defendant, provided he was under the age of 24, believed the girl to be 16 or everywhere Lord Steyn said since section 5 contained no such defence, it on the face of it created an offence of absolute liability. So the court is suggesting that unlawful underage knowledgeable intercourse, a traditional example of absolute liability, will not be considered as absolute liability per se in the present of statutory defence in provision. This observation is reaffirmed in the recent case Hin Lin Yee v HKSAR5by Ribeiro PJ in paragraph 198 (ii) and (iii).In other jurisdiction equal Australia, the definition of absolute liability is even more blurred by the fact that common law defence like duress and self defence are 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 hard-boiled as a matter of statutory construction, the statutory provision enacting the offence must be construed to determine the legislative intention. In Gammon (Hong Kong) Ltd6, the lordship has summarized the come up to the interlingual renditionThere is a premise of law that mens rea is required before a person can be held guilty of a criminal offence.The supposition is oddly strong where the offences is truly criminal in character. sincerely criminal offence usually refers those dealing with violence against persons or property. The presumption is particularly strong due to the stigma that attached to the offence.The presumption applies to statutory offences, and can be displaced only if this is clearly or by requirement implication the effect of the statute.Sometimes the off ence will expressly specialize the type or level of mental fault by apply words such as willfully, recklessly, carelessly, etc. In such cases, the court must then go on to define the precise convey 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 habitual safety is such as issue.Strict liability has often been enforce in regulatory offences concerning social concern and public safety, such as licensing, pollution, health and safety, driving offences, environmental offences and public health offences.Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creative activity of strict liability will be effective to push the o bjects of the statute by encouraging greater vigilance to prevent the commitment of the proscribe act.In Lim Chin Aik v R7, 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 authorities had act 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 thus realise 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 behind the creation of absolute and strict liability?It is said that the imposition of strict liability encourages greater observance of and compliance with law, especially to the employer who is vicariou sly liable to employees act, 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 reasonable care they must take all thinkable care. Secondly, it is said that strict liability, by relieving the prosecution of the task of investigating and proving mens rea against an asseverate offender, enhances the efficiency of our administrative and judicial systems.How do the constructs of absolute and strict liability assist or hinder the Prosecution, the Accused and the Court in a criminal trial?ProsecutorIt relieves the prosecutor of the virtual impossibility of proving intent or knowledge of the wrongful conduct, particularly where the defendant was a keep company rather than an individual. No significant hindrance is observed for pros ecution in regard to the application of concept.AccusedStrict liability draw a clear line between legality and illegality, which may reduce the entropy cost for the accused to determine whether himself is guilty or not in some minor offence (e.g. speeding). Unnecessary legal fee may also be saved in this regard.On the other hand, the concept imposes liability on accused who have taken all accomplishable steps to prevent the offence being committed and should not be blameworthy. The onus of proof is also reversed to the defendant side.CourtThe concept allows the court to strike down the many bogus defense that would other than succeed if excusable ignorance or mistake were always accepted as defense.On the other hand, the courts need to engage in time overwhelming debates about whether the legislature intended strict or absolute liability to apply. The difficulties in identifying strict liability offences can be seen from lack of uncloudedness in judgements. Also, the court often need to justify the creation of strict liability does not per se contravene with the Bill of Rights.8Conclusion overall I feel that strict liability is necessary, but that it should be used wisely and that statutes should be extremely carefully worded. Other jurisdiction is belatedly moving away from creating new offences of strict liability and phasing out some of the older ones, or at least revising the statute and adding possible defences. Hong Kong should also revisit the issue and see if any improvement can be made.