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INDIAN PENAL CODE (IPC)

STRICT CRIMINAL LIABILITY: A PRINCIPLED APPROACH

SUBMITTED BY:
A.REDDY SAI GEETA (2015-001)
AASHI GOYAL (2015-002)
ABHIJIT CHATURVEDI (2015-003)
ABHIPSHA MOHANTY (2015-004)
ABHISHEK SINGH (2015-005)

Submitted To:
Dr. Nandini C.P

DAMODARM SANJIVAYYA NATIONAL LAW UNIVERSITY


VISAKHAPATNAM
ACKNOWLEDGEMENT:

We have taken efforts in this project. However it would not have been possible without the kind
support and help of many individuals. We would like to extend my sincere thanks to all of them.
We are highly indebted to Dr. Nandini C.P. for her guidance and constant supervision as well as
for providing necessary information regarding the project.
We would like to express our special gratitude and thanks to our faculty member for their
patience, time and helping us in developing the project and people who have willingly helped us
out with their abilities.
CONTENTS:

1. Abstract
2. Introduction of strict liability
3. Imposition of Strict Liability in India
Nature of strict liability
4. The presumption of mens rea and determining factors related to it.
5. Strict Liability and Defenses
Strict liability, mens rea and burden of proof
6. Applicability of Strict Liability in Indian Statutes
7. Disposition of Misconceptions in Strict Liability
8. Reformation of Strict Liability
9. Conclusion and Sugestions
10. Bibliography

ABSTRACT

The constituents of an offence in criminal law is often divided into two part namely actus reus
and mens rea. The generally accepted sense in which these terms are used is that actus reus refers
to the outward circumstances of an offence and mens rea denotes the mental state of the offender.
It is generally true to say that to convict a person (D), the prosecution (P) has to prove both actus
reus and mens rea. But in some uncommon situations, the common law didnt require mens rea -
for example, negligent man slaughter is not an offence requiring mens rea, which means, mens
rea need not be proven. So, in the modern times a doctrine has developed in certain classes of
statutory offences, where a person can be convicted on proof of actus reus only. This has come to
be called strict liability and the offence is known as Regulatory offences or Public welfare
offences or Pubic Torts or Quasi crimes etc. The last or the third category of offence is the
offence of absolute liability i.e. liability without fault. In Sault Ste. Marie, the strict liability
category, was described as a half way house between the mens rea and the absolute liability
category. Five people have six opinions on strict liability! Supporters of this doctrine regarded it
as necessary evil while their opponents agreed about the evil nature but not the necessity part.

Keywords: criminal law, strict liability, actus reus, mens rea, regulatory offences

Title: Strict Criminal Liability: A Principled Approach

Introduction:
A crime is strict liability if there is any one is more elements of the actus reus which do not
require proof of fault intention, knowledge, recklessness, belief, suspicion or even negligence.
The imposition of the strict liability is seen as a direct conflict with the primacy of the
requirement of fault mens rea in criminal offence. The project has the complete scenario of the
strict liability from the early period and its progression of change, often branching and
diversifying in the process in criminal law. It then deals with its prominence in English law and
its permeability in the Indian law, more illustrative given with the case laws and definitions
given in the Indian penal code.

Hypotheses:

This project gives the background of strict liability and its application, implementation not only
in India but other countries as such.

Whether there is any distinction between mens rea and strict liability criminal statutes?
Why the existence of strict liability is controversial?
Are strict liability crime is real in nature?

Objective of the study:

The objectives of the study involve the research questions in the project that ought to be
answered in the project. In a sense strict liability is attached to crimes falling within the purview
of these doctrines, but in each event, the act to which strict liability is attached is morally wrong
in and of itself. The present discussion is limited to acts which may entail no wrongful intent or
moral guilt, but nevertheless are considered criminal offenses.

Research methodology:

The research is based on doctrinal study.

Literature review:
The researcher obtained the information from various books, articles and journals as the topic of
the research is not static and we see development and growth in every sphere of strict liability.

1. Strict Liability in the Criminal law 1 by Richard A. Wasserstorm,: it says about the
imposition of severe criminal sanction and the similarities between strict liability and
criminal negligence. The concept and justification of strict liability. "To inflict substantial
punishment upon one who is morally entirely innocent, who caused injury through
reasonable mistake or pure accident, would so outrage the feelings of the community as
to nullify its own enforcement."'

2. Nebraska Law Review by Ira Stanley Epstein2: In a sense strict liability is always attached
to crimes falling within the purview of the doctrines, but in each event, the act to which
strict liability is attached is morally wrong in and of itself. The doctrine of strict liability
in criminal actions was generally accepted by the turn of the century, and courts felt free
to apply it. Strict liability was first evolved in cases involving violations of statutes
pertaining to food and drugs and intoxicating liquor. It was gradually extended, and soon
police offenses entailing small penalties became recognized as a type of criminal offense
requiring no proof of mens rea.

3. When is strict criminal liability is just? by Renneth W. Simons, 3: this article says about the
different categories strict liability and the way in which criminal offence s are structured.
More precisely, strict liability is condemned by culpability-based rather than harm-based
retributivists. If retributive desert depends only on harm caused, then strict criminal
liability is hardly problematic. But if desert instead depends on culpability in bringing
about a harm or wrong, then strict criminal liability seems flatly inconsistent with
retributive theory.

4. Strict Liability in Criminal law: A Re-examination by Michael Hor Yew Meng, 4: this
article examines some recent pronouncements on the reasons for strict liability. It also

1 12 Stan.L. Rev. 731 (1959-1960)

2 33 Neb.l. Rev. 462 (1953-54)

3 87 J. Crim. L & Criminology 1075 (1996- 97)


discusses recent legislative attitudes towards strict liability and judicial views on the
effect of presumptions of knowledge on the mental element of crime. It will be
appreciated that there are in effect two variables. First, the degree of mens rea in
substantive criminal law, which determines whether it is intention, knowledge, or
negligence which is the relevant mental element. Secondly, the burden of proof in the law
of evidence, which specifies whether it is the prosecution or the defence who must prove
the relevant mental element.

5. The Origin of Strict Criminal liability5 by Colin Manchester, The trend towards
dispensing with the need for mens rea began at the commencement of the nineteenth
century. This trend initially took the form of holding a person vicariously liable for the
act of another. This occurred in master-servant situations, where the master was held
vicariously liable for the act of his servant, even though the master lacked any mens rea
(in the form of knowledge) in respect of what the servant had done.

6. Strict Criminal Liability: A Principled Approach 6, this article says that No matter what
the jurisdiction, no greater consensus exists than the objection to strict liability in
criminal law. But on what is this objection based? Most legal commentators will contend
that it is the notion of imposing liability without fault. However, one can only subscribe
to this notion if they believe that strict liability is a univocal, all-or-nothing property of
offences; and since it is not, the notion is flawed. There is no single referent of strict
liability; both substantive and formal varieties exist, and so this author argues that no
single argument can succeed in criticising both.

7. Criminal Law Reform and persistence of strict liability 7, This Article identifies the
twenty-four states that codified the MPC's culpability rules and then recounts an

4 1996 Sing.J. Legal Stud. 312 1996

5 6 Anglo-Am. L. Rev. 277 1977

6 RYAN HARTHROWN, 6 Cambridge Student L. Rev. 33 2010


extensive survey of the case law in those states to assess the reforms' effect on judicial
interpretation of mens rea requirements. It finds that legislative codifications of
presumptions for mens rea have had surprisingly little effect on courts that define mens
rea requirements when interpreting criminal statutes. It describes the recurrent rationales
that courts use to impose strict-liability elements in a wide range of crimes,
notwithstanding statutes that direct presumptions to the contrary.

8. Strict Liability for Criminal Offences8, The question of strict liability for criminal
offences has been raise in the Court of Appeal in connexion with Exchange Control
offences. In El Mann v. Republic, to be reported in [1969] E.A., counsel for the Republic
argued that offences under the Exchange Control Act (Cap.113) (K) were offences which
involved strict liability independent of fault. The Court of Appeal did not find it necessary
to decide on the point, but in view of its importance the submission should be examined
closely.

9. The imposition of strict liability in certain criminal offences is a necessary evil in the
fight to protect the public from harm by Paulina Dawidoska, 9In this article it is discussed
about the offences which come under strict liability and the cases to demonstrate the
concept of the project. Strict liability offences can be divided into two types:

1) Regulatory offences; also known as quasi-criminal offence and there are hundreds of
such kind of offence.This is where the court does not require the mensrea in order for the
guilt to be proven, usually both the actusrea and mensrea needs to be proven.
2) Truly criminal offences; there are only few cases of this type as they involve more
serious matters which a court cannot always deal without finding the necessary mensrea.
Sigma of conviction is greater in truly criminal offences then regulatory offences.
This article also discusses about the situation when there is a significant danger aimed at
public, when it involves harmful weapons and substance and use of demonstration of
strict liability being a necessary evil.

7 Darryl K. Brown, 62 Duke L.J. 285 2012-2013

8 6 E. Afr. L.J. 61 1970

9 Duke Law Journal, Vol.62:285


10. On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an
Intent-Free Moral World by W. Robert Thomas10
The law has long recognized a presumption against criminal strict liability. This article
situates that presumption in terms of moral intuitions about the role of intention and the
unique nature of criminal punishment. Two sources i.e. recent laws from state legislatures
and recent advances in moral philosophy-pose distinct challenges to the presumption
against strict liability crimes. This article offers a solution to the philosophical problem
that informs how courts could address the legislative problem. First, it argues that the
purported problem from philosophy stems from a mistaken relationship drawn between
criminal law and morality. Second, it outlines a slightly more nuanced moral framework
that both accommodates recent thinking in philosophy and preserves the correspondence
between moral theory and criminal law that underwrites the presumption against criminal
strict liability. Finally, it considers how the contours of this moral framework could
inform judicial efforts to accommodate and constrain new criminal strict liability laws.

11. The Mens Rea Requirements of the Federal Environmental Statutes: Strict Criminal
Liability in Substance But Not Form, Buffalo Law.Review, Robert A. Milne,11
In this article the author talks about the significance of Mens rea in the terms of strict
criminal liability and tells the importance of the mental element.

12. Requirement Of Fault In Strict Liability, Singapore Academy Of Law Journal, Chan Wing
Cheong12, The article focuses on the requirement of fault in strict liability. Offences of
strict liability are, despite its proliferation in number,' commonly regarded as an
exception to the general rule that proof of mens rea is a prerequisite to criminal liability
In English law, no clear or consistent principles can be deciphered for imposing strict
liability. It also states about the burden of proof.

10Michigan Law Review, Volume 110; Issue 4

11 37 Buff. L. Rev. 307 1988-1989

12 11 SAcLJ 98 1999
13. Mens Rea And Strict Liability Criminal Statutes, Washington And Lee Law Review,
Joseph C. Knakal, Jr.,13 In this article the author focuses on the two maxims mala in se
and mala prohitia. These two have been taken to determine the mens rea. It is generally
said that the two types of offenses differ by more than degree, that there is a difference in
kind. During the twentieth century there has been a decided increase in the volume of
legislation circumscribing and attaching criminal penalties to conduct which is not in
itself wrongful and which was not considered as criminal by the common law.

INTRODUCTION

13 16 Wash. & Lee L. Rev. 238 1959


The imposition of strict liability in the criminal law is widely thought by legal commentators to
be objectionable. There is, moreover, a broad consensus as to why it is objectionable. The most
formidable is that strict liability convicts those that are, morally speaking, innocent. There is
much that is right about this view. However, some of the strongest and seemingly most
persuasive objections to strict liability are predicated on a defective conception of what strict
liability is. Most legal commentators attack strict liability as a univocal, all-or-nothing property
of offences. It is this view by legal commentators that has confounded the doctrine of strict
liability resulting in "a picture of almost universal confusion"'.14 Consequently, this author
proposes a more principled approach. It is not that authorities have lacked principles, but as
Ashworth has observed, "there are too many principles.with no attempt to draw them together
into a single coherent pattern".15 This paper takes up this challenge.
There is no single referent of strict liability, and so, no one offence can provide an example of
strict liability simpliciter. Therefore, in establishing several forms of strict liability, no single
argument is likely to succeed in demonstrating that all forms are objectionable. 16 Certain forms
will be vulnerable to a particular criticism whilst others will be immune from the same criticism.
To this end, section one clarifies and refines the concept of strict liability by distinguishing
between formal and substantive forms. In section two, this author establishes basic propositions
with a view to disposing of misconceptions concerning strict liability. It is also important the
propositions are borne firmly in mind as this exposition unfolds and the complexity of the
argument increases. Section three of this paper categorizes criminal offences into "truly criminal"
and "quasi-criminal" offences; a dichotomy developed ex hypothesi by the courts.

14 C. Howard, Stict Responsibility (Sweet and Maxwell, London 1963) 2.

15 A. Ashworth, Principles ofCriminal Law (2 ' ed. Oxford University Press, Oxford 1995) 167.

16 D. Husak, "Varieties of Strict Liability" [1995] 8 Can. J. of L. & Jurisprudence 189 at 191.
1. NATURE OF STRICT LIABILITY AND ITS IMPOSITION

A crime is strict liability if there is any one is more elements of the Actus Reus which do not
require proof of fault intention, knowledge, recklessness, belief, suspicion or even negligence.
The imposition of the strict liability is seen as a direct conflict with the primacy of the
requirement of fault mens rea in criminal offence. Although the court has recently reaffirmed in
significance of the mens rea principle, there are now so many strict liability offences in English
criminal law that the practical term strict liability of enormous importance.17

This chapter focuses on identifying circumstance in which an offence will be construed as one of
strict liability that is where the crown will not have to establish mens rea in relation to every
element of the actus rea. It may be surprising to find that offence of grant seriousness carrying
heavy penalties and with serious social stigma have been interpreted as ones of strict liability.
For example , the house of lord has held that in sexual offences in evolving children under13,
liability as to age is strict. D aged 14 has sexual inter course with v aged 12. V consents to the
act. V has told d that she is 13. D has no reason to disbelieve her. He is guiltily of an offence
under sec 5 of the sexual offence act 2003 of having sex with a child under 13 carrying a
maximum sentence of life imprisonment even though he had no idea was under section 13.

The controversies that will be examined in this chapter includes the following:

1) The presumption of mens rea that is unless parliament has indicated otherwise the mental
element is an unexpressed ingredient of every statutory offence.
2) How to ascertain whether an offence is in fact one of strict liability.
3) The merits of strict liability offences.

Strict liability means:

Strict liability means is a standard for liability which may exist in the either a criminal
or civil context a rule specifying strict liability makes a person legally responsible for the
damage and loss caused by his/ her acts and omissions regardless of culpability including fault in
criminal law terms typically the presence of mens rea under strict liability. There is no
requirement to prove fault, negligence or intention. Strict liability is prominent in tort law
17 Criminal law, smith and hogans, 11th edition oxford publication.
especially product liability, corporation laws and criminal laws. Strict liability is a controversial
phenomena in the criminal law because of its potential to convicts blames persons offences are
said to impose strict liability when in relation to one or more elements of the actus Reus, there is
no need for the prosecution to prove a corresponding mens rea of fault elements. there are six
senses of strict liability:

1) Offences that certain at least one material element for which there is no corresponding
means rea element
2) Statutory schemes that bar the use of one or more mens rea negating defense
3) Procedural device that require a defendant intent to be presumed from other facts
4) Offence that require a less serious form of mens rea
5) Offences that require ales serious from of harmfulness that traditional in criminal law
6) Offences that require a less serious form of wrongfulness that has traditionally in criminal
law.

Offences omitting requirement of mens rea:

The most common use of them strict liability in the criminal law and the only one ultimately that
recommend is to offence that contain at least one material elements for which there is no
corresponding mens rea requirement. By mens rea, the requirement that a defendant perform a
voluntary physical act with intent, purpose, knowledge, belief, recklessness, negligence, or some
other prescribed mental states. Thus strict liability in this first sense is simply criminal liability in
the absence of intent, purpose, knowledge, and the like several classification are in order. First
we can distinguish between offence for which no mens rea is required with respect to any
material elements but is required with respect to at least one other elements.18

Statutory rape is properly viewed as a strict liability offence because, although the defendant
must be shown to have engaged intentionally in sexual intercourse with an underage the sexual
offence act 2003. That is a defendant may be convicted of statutory rape even though he
reasonable but mistakenly believed that the victim was old enough to consent to intercourse.
Secondly within the category of impure strict liability, we can distinguish between constructive
and non-constrictive strict liability (unlawful act manslaughter involves constructive strict
liability in that what must usually be proved is mens rea to some crimes.

18 On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral
World by W. Robert Thomas, Michigan Law Review, Volume 110; Issue 4
Strict liability and moral fault:

To found the determination of an offences one of the strict liability or mens rea on the basis of
moral fault would be fraught with difficulty and lead to inconsistency and incoherence. A
defendant might be found to be guilty of serious crimes to which strict liability applies without
having any moral fault.

For example: Pharmaceutical society of Great Britain v Storkwain Ltd 19 ,A case study in strict
liability and self regulation, the medicines act 1968,s 58(2), provides that no person shall sell by
retain specified medicinal product accepts in accordance with the prescription given by an
appropriate medical practitioner. I think is misleading, indeed wrong, to treat conduct as faulty
merely because it is intentional regardless of whether the conduct is reasonable. Conduct is
faulty only if it is conduct that should not have occurred give the foreseeable risks to others. It is
legal fault rather than moral fault if an objective perspective is used that is if the conduct is
conduct that should not have been engaged in by an adult with normal physical and mental
knowledge, capacities and abilities. For reasons of justice protection of right we often but not
always use an objective legal fault perspective rather than a subjective moral fault perspective.

Strict liability is liability in the absence of fault, but it is not absolute liability. There must be in
addition to causation, conduct involving a foreseeable risk to other and even then something else.
Eg., The ultra hazardous nature of the conduct or activity or more frequently, conduct intended to
cause the harm or injury that occurred even if such intentional conduct is reasonable or
justifiable.

In the private necessity case, the private necessity creates a qualified privilege to trespass there is
a trespass there is a trespass but there is an incomplete defense, but if harm to the plaintiff
property (harm to persons not being allowed) occurs purposely or knowingly there has been a
case of deliberately harming another interest in order to advance one own interests. Morally the
plaintiff perhaps should be willing to have the harm occur and not seek compensation, but
perhaps not. The situation is the flip side of the no duty to rescue. The plaintiff is not required to
benefit the defendant. Even if one believes as I do that there should be a legal duty of easy rescue

19 AIR 1986 2 ALL ER 635.


easy rescue by definition does not involve any signification cast to a voluntary rescuer
restitutionary issues arise complicated however by the facts that the rescuer volunteered often not
at the request of the person rescued in the private necessity cases. The owner of the land
trespassed on did not volunteer to benefits the trespasser without any through of compensation or
if he did he would not sue. It seems clear and just to compensate the plaintiff for the harm
deliberately in fixated on the plaintiffs property which was not posing any risk to the defendant
but rather was deliberately used by the defendant private interests.

2. THE PRESUMPTION OF MENS REA AND DETERMINING FACTORS IN IT


In criminal law, strict liability is liability for which mens rea, i.e., "guilty mind" does not have to
be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act")
although intention, recklessness or knowledge may be required in relation to other elements of
the offense.

The distinguishing feature of crimes of strict liability (SL) is the absence of mens rea, the
prosecution is not required to prove the defendant intended the consequences of his actions or
even foresaw them. For some offences they may be required to show that the defendant was
"negligent".

Evidence which goes beyond establishing the specified elements of the offence for example
intention, knowledge and so on is not relevant and therefore inadmissible especially where such
evidence serves no purpose other than to incline the court to think badly of that defendant.

Some examples which include the crime of strict liability are negligence, sexual intercourse with
a minor with or without consent, possession of drugs and illegal weapons, etc. In this project we
are further going to deal with the different offences in which a person can be held liable without
any presumption of mensrea.

Lord Scarman confirmed that there is always a presumption of law that mensrea is required
before a person can be held guilty of a criminal offence while explaining the principles on which
they had based the decision.20 The existence of this presumption was reaffirmed in very strong
terms by the House of Lords in B (a minor) v DPP21.

In B (a minor) v DPP a 15-year-old boy had sat next to a 13-year-old girl and asked her to give
him a shiner. The trial judge observed that this, in the language of todays gilded youth,
apparently means, not a black eye, but an act of oral sex. The boy was charged with inciting a
child under the age of 14 to commit an act of gross indecency. Both the trial judge and the Court
of Appeal ruled that this was a strict liability offence and that there was therefore no defence
available that the boy believed the girl to be over 14. The House of Lords confirmed that there
was a presumption that mensrea was required, and ruled that the relevant offence was not
20Carson D. Some sociological aspects of strict liability Modern Law Review 225 ( 1970)

21[2000] 2 AC 428 House of Lords


actually one of strict liability. The House stated that in order to rebut the presumption that an
offence required mensrea, there needed to be a compellingly clear implication that Parliament
intended the offence to be one of strict liability. The test is not whether it is a reasonable
implication that the statute rules out mensrea as a constituent part of the crime the test is
whether it is a necessary implication. As the offence had a very broad actusreus, carried a serious
social stigma and a heavy sentence it decided Parliament did not have this intention. Soon
afterwards the House of Lords confirmed its reluctance to find strict liability offences in R v K22.

These cases have thrown doubt on the old case of Prince (1874) which had also been concerned
with an offence against the person that could only be committed on a girl under a certain age.
That offence had been treated as one of strict liability and the reasonable but mistaken belief of
the defendant as to her age was therefore found to be irrelevant. The House of Lords described
that case as unsound and a relic from an age dead and gone. In R v K the House of Lords
described Prince as a spent force.

There are certain factors which can, on their own or combined, displace the presumption that
mensrea is required. These can be grouped into four categories which will be considered in turn.

1. Regulatory offence

A regulatory offence is one in which no real moral issue is involved, and usually (though not
always) one for which the maximum penalty is small the mass of rules surrounding the sale of
food are examples. In Gammon it was stated that the presumption that mensrea is required was
less strong for regulatory offences than for truly criminal offences.

2. Issue of social concern

Where a statute is concerned with an issue of social concern (such as public safety), and the
creation of strict liability will promote the purpose of the statute by encouraging potential
offenders to take extra precautions against committing the prohibited act, the presumption in
favour of mensrea can be rebutted.

22 [2001] UKHL 41 House of Lords


In Harrow London Borough Council v Shah23 the offence of selling National Lottery tickets to
a person under the age of 16 was found to be an offence of strict liability. The Divisional Court
justified this by stating that the legislation dealt with an issue of social concern.

3. The wording of the Act

The presumption that mensrea is required for a criminal offence can be rebutted if the words of a
statute suggest that strict liability is intended. The House of Lords said in Sweet v Parsley, the
fact that other sections of the Act expressly required mensrea, for example, because they contain
the word knowingly, is not in itself sufficient to justify a decision that a section which is silent
as to mensrea creates a [strict liability] offence. At present it is not always clear whether a
particular form of words will be interpreted as creating an offence of strict liability. However,
some words have been interpreted fairly consistently, including the following.

Cause
In Alphacell v Woodward24 the defendants were a company accused of causing polluted
matter to enter a river. They were using equipment designed to prevent any overflow into
the river, but when the mechanism became clogged by leaves the pollution was able to
escape. There was no evidence that the defendants had been negligent, or even knew that
the pollution was leaking out. The House of Lords stated that where statutes create an
offence of causing something to happen, the courts should adopt a common-sense
approach if reasonable people would say that the defendant has caused something to
happen, regardless of whether he or she knew he or she was doing so, then no mensrea is
required.25 Their Lordships held that in the normal meaning of the word, the company had
caused the pollution to enter the water, and their conviction was upheld.
Possession

23 [1999] 3 All ER 302 - S 13 NLA.

24 [1972] AC 824.

25Wootton, B. Crime and the Criminal Law: Reflections of a Magistrate and Social Scientist, London: Stevens
(1981)
There are many offences which are defined as being in possession of a prohibited item,
the obvious example being drugs. They are frequently treated as strict liability offences.
For example, s. 5 of the Firearms Act 1968 provides:
A person commits an offence if, without the authority of the Defence Council
(a) he has in his possession
(b) any weapon of whatever description designed or adapted for the discharge of any
noxious liquid, gas or other thing.
Knowingly
Clearly use of this word tells the courts that mensrea is required, and tends to be used
where Parliament wants to underline the fact that the presumption should be applied.

The smallness of the penalty

Strict liability is most often imposed for offences which carry a relatively small maximum
penalty, and it appears that the higher the maximum penalty, the less likely it is that the courts
will impose strict liability. However, the existence of severe penalties for an offence does not
guarantee that strict liability will not be imposed. Lord Scarman held that where regulations were
put in place to protect public safety, it was quite appropriate to impose strict liability, despite
potentially severe penalties.

Relevance of the four factors

Obviously these four factors overlap to a certain extent regulatory offences usually do have
small penalties, for example. And in Alphacell v Woodward26, the House of Lords gave their
decision the dual justification of applying the common-sense meaning of the term cause, and
recognising that pollution was an issue of social concern.27

Presumption of Mens Rea in Strict Liability in India

Actus non facitreum nisi mens sit rea

The above well-known latin maxim describes the relation between mensrea and a crime in
general. Actus reus means a wrongful act. Mens rea means a wrongful intention. The maxim
means that an act does not itself make one guilty unless the mind is also guilty. The mere
26 Supra note 5.

27Glanville Williams, Textbook of Criminal Law, 2nd Edition, Stevens & Sons, p 30 (1983)
commission of a criminal act or violation of law is not enough to constitute a crime. These
generally require, in addition, some elements of wrongful intent or other fault. Mens Rea is a
technical term. It means some blameworthy condition of the mind, the absence of which on any
particular occasion negatives the condition of crime. It is one of the essential ingredients of
criminal liability.

Statutory Offence

In statutory interpretation, certain presumptions are taken into account by the court while
interpreting the statutes. The presumption relevant here is that a criminal act in general requires
the presence of mensrea. Almost all crimes that exist independently of any statute require, for
their commission, some blameworthy state of mind on the part of the actor. Where a statute
creates an offence, no matter how comprehensive and absolute the language of the statute is, it is
usually understood to be silently requiring that the element of mensrea be imported into the
definition of the crime (offence) so defined, unless a contrary intention is express or implied.

The Bhopal Gas Tragedy case28 showed the world that compromising on safety standards is the
first thing that industries do to cut costs. In respect of hazardous industry, the threat may not be
just to the workers of the factory as in Bhopal but, also to persons residing in and around that
area. In the said Tragedy, in 1984, there was a major gas leak of MIC gas from the Union
Carbide factory in Bhopal. Thousands died and many are still suffering as a result thereof.
Hence, it is in the interest of the larger good that there are laws which lay down standards and
regulate the functioning of the industries, prevent, food adulteration, corruption, etc., and that
these laws are strictly applicable, i.e., they are strictly construed without requiring mensrea in
commission of the offences they create.

Another very important case in relating to this exception to the rule of mensrea is that of Ranjit
D. Udeshi v. State of Maharashtra.29 In this case, even a provision of Indian Penal Code, 1860
was held to be not requiring mensrea. The Supreme Court had held that We do not accept the
argument that the prosecution must prove that the person who sells or keeps for sale any obscene

28 Union Carbide Corporation v. Union of India, 1999 (4) SCC 514, Volume II

291965 AIR 881, 1965 SCR (1) 65


object knows that it is obscene before he can be adjudged guily. The first sub-section of Section
292 of IPC does not make knowledge of obscenity an ingredient of the offence. The prosecution
need not prove something which the law does not burden it with. If knowledge were made a part
of the guilty act (actusreus), and required the prosecution to prove it, it would place an almost
impenetrable defence in the hands of offenders. It is argued that the number of books these days
is so large and their contents so varied that the question whether there is mensrea or not must be
based on definite knowledge of the existence of obscenity. We can only interpret the law as we
find it and if any exception is to be made, it is for Parliament to enact a law. As we have pointed
out, the difficulty, of obtaining legal evidence of the offenders knowledge of the obscenity of the
book, etc. has made the liability strict. Under our law, absence of such knowledge may be taken
in mitigation but, it does not take the case out of the sub-section.30

In many strict liability offences, mensrea would be very difficult to prove, and without strict
liability, guilty people might escape conviction. Obvious examples are those involving large
corporations, where it may be difficult to prove that someone knew what was happening. Strict
liability is criticised as unjust on a variety of different grounds. First, that it is not in the interests
of justice that someone who has taken reasonable care, and could not possibly have avoided
committing an offence, should be punished by the criminal law. This goes against the principle
that the criminal law punishes fault. Secondly, the argument that strict liability should be
enforced because mensrea would be too difficult to prove is morally doubtful.

3. DEFENSES OF STRICT LIABILITY

30P.ST.J. Langan, Maxwell on The Interpretation of Statutes, 12th Edition 16th Impression (2008), p. 123
4. APPLICABILITY OF STRICT LIABILITY IN INDIAN STATUTES

The theory of the common law that justice can be dispensed by giving each party full opportunity
to present his own case was the development of the common law in England. Civil and Criminal
Procedure Codes in India and the Law of Evidence enacted in the later half of the nineteenth
century are in conformity with this common law doctrine. Criminal law concerns with the
protection of life, liberty and property of an individual. In fact criminal law is narrower than
morality and this has been the reason that no attempt has ever been made to treat every moral
defect as crime. The idea of crime involves some defect, gross undeniable injury to someone
where some definite overt act is necessary.31
The law has long recognized a presumption against criminal strict liability. This article situates
that presumption in terms of moral intuitions about the role of intention and the unique nature of
criminal punishment. Two sources i.e. recent laws from state legislatures and recent advances in
moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This
article offers a solution to the philosophical problem that informs how courts could address the
legislative problem. First, it argues that the purported problem from philosophy stems from a
mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly
more nuanced moral framework that both accommodates recent thinking in philosophy and
preserves the correspondence between moral theory and criminal law that underwrites the
presumption against criminal strict liability. Finally, it considers how the contours of this moral
framework could inform judicial efforts to accommodate and constrain new criminal strict
liability laws.32
The fundamental principle of criminal law is that there must be wrongful act (Actus reus)
combined with wrongful intention - mes rea. This principle is embodied in the maxim Actus non
31 Justice Irshad Hussain, PREPARATORY LEGAL ASPECTS OF CRIMINAL TRIAL, Uttarakhand Judicial &
Legal Review.

32 On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral
World by W. Robert Thomas
facid reum risim mens sit rele meaning, an act does not make one guilty unless the mind is also
guilty. Actus reus connotes an overt act, the physical result of human conduct. For example in an
assault case the injury sustained by the victim is the event which is the Actus reus. In other words
the crime is constituted by the event and not by the activity which caused the event. The
intention to cause the injury by assault is called mens rea. In order to create a criminal liability
the act must be one which is prohibited by law and it is not merely sufficient that there is mens
rea, the actus must be reus.33 Mens rea is motive forced behind the criminal act. There must be a
wrongful intention or such condition of mind which may be blame-worthy before a person is
made criminally liable. Mens rea or guilty intention is sine qua non of a criminal act. Ordinarily,
a crime is not committed, if the mind of a person doing the act is innocent. The fact that mens
rea has been made pivotal to the criminal liability is based on the premise that every person has
the capacity to choose between right and wrong. Once a person makes a choice, he has to take
the responsibility for the same.
Under the Indian Penal Code guilt in respect of almost all the offences is fastened either on the
ground of intention, or knowledge, or reason to believe. All offences under the Indian Penal
Code are qualified by one or the other words such as wrongful gain, or wrongful loss (Section
23), dishonestly (Section 24), fraudulently (Section 25), reason to believe (Section 26), criminal
knowledge or intention (Section 35), intentional cooperation (Section 37), voluntarily (Section
39), malignantly (Sections 153, 270), wantonly (Section 155). Although the word mens rea as
such is nowhere found in the Penal Code, its spirit and essence is reflected in almost all the
provisions of the Code. Intention is a term, which is very difficult to define and this is the reason
that it is expressed by words such as voluntarily and willfully, deliberately, deliberate
intention, with the purpose of or knowingly. In the Indian Penal Code all these expressions
find place in different sections of the Code with reference to the offences defined therein.34
It also needs to be impressed that mens rea is not a unitary concept. Depending on the nature of
the crime mens rea may be present or existence of intention in some cases, the requirement of
knowledge in some and negligence in some other. The negligence is the failure of a person to act
with the standard of care expected of a reasonable or a prudent person.

33 Supra note 33.

34 ibid
Chapter IV (Sections 76 to 106) deals with general exceptions, wherein acts otherwise would
constitute offences ceased to be so under certain circumstances set out in the various sections.
Therefore, these exceptions are in itself a recognition of the principle of mens rea. For framing of
a charge of an offence under the Penal Code, the traditional rule of existence of mens rea is to be
followed (Sections 211 to 216 of the Code of Criminal Procedure). It need to be stated here that
this traditional rule that mens rea is an essential element of an offence is not without its
exception. In the last few decades social or public welfare laws have been so drafted that the law
makes the mere omission or commission of acts punishable. In other words no mens rea is
required.
Such acts are termed as strict liability or sometimes absolute liability offences. Enactments
for instances to be referred are:-35
(a) Factories Act and other Labour Legislations, 1948.
(b) Prevention of Food Adulteration Act, 1954.
(c) Essential Commodities Act, 1955.
(d) Motor Vehicles Act, 1988.
(e) Negotiable Instruments Act, 1881 etc.
Example of strict liability offences may be found in the Indian Penal Code such as Section 292
which makes the sale, hiring, distributing, publicly exhibiting, importing, exporting etc. of
obscene books, pamphlets, writings, drawings etc. offence.36
Every person accused of a crime is presumed to be innocent unless and until proved guilty by the
evidence adduced by the prosecution or the complainant. The burden of proving the guilt of the
accused rests solely and entirely on the prosecution and this burden does not shift. Generally an
accused cannot be asked to bring his innocence but when the element of mens rea exists in the
statutes; the prosecution only has to prove that the accused committed certain wrongful act. The
presumption is always rebuttable one, that is, the accused person shall be given an opportunity to

35 Justice Irshad Hussain, PREPARATORY LEGAL ASPECTS OF CRIMINAL TRIAL, Uttarakhand


Judicial & Legal Review.

36 Sec: 292 of Cr.Pc, evidence of the officers of the mint.


prove that the person had committed certain acts, but it was done innocently and without any
criminal intent (Section 8-A of Dowry Prohibition Act).37
An offence that has been committed generally divided into four distinct and successive stages:-
(1) intention of commit it;
(2) preparation;
(3) attempt to commit; and
(4) the actual commission of the offence;
In criminal law, the first two stages of intention and preparation are generally not made
punishable. Law does not as a rule punish individuals for evil thing or intention. It is impossible
for anyone to be able to look into breast of criminals to ascertain and prove the evil intentions.
Further, it is always possible for a person to give up his evil intentions or designs. It is based on
these considerations that a principle of law has come to be evolved which make only those
intentions punishable that are accompanied by some overt act aimed towards achieving the
intention. On the same ground preparation, as a general principle, is not made punishable. It is
quite possible that the person, who originally had the intention to commit an offence, gives it up
and do not go ahead with the preparation. It is when an act has gone beyond the stages of
preparation towards achieving the intention that the law of attempt begins and criminal liability
covers the act committed.

5. DISPOSING OF MISCONCEPTIONS RELATING TO STRICT LIABILITY

Establishing a principled approach is best commenced by disposing of misconceptions relating to


strict liability. These misconceptions are borne out of commentators inability to reconcile strict
liability with criminal law and human right jurisprudence. Therefore proposes to commence by
establishing basic propositions, which should be borne firmly in mind by the reader as the
exposition unfolds and the complexity of the argument increases.

A. Presumption of Innocence and Substantive Criminal Law

37 Sec. 8-A of Dowry prohibition Act, 1961 - Burden of proof in certain cases.
The presumption of innocence; the requirement that "everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law",'" does not of itself require that
guilt involve fault. This article is an exclusively procedural provision that does not purport to
regulate matters of substantive criminal law," and so imposes no fetter on the right of a state to
enact and enforce a strict liability offence because the content and interpretation of domestic
substantive law is not engaged by the article.38 For the sake of completeness it is necessary to
illustrate the only authority that lends support to the contrary argument, namely the decision on
admissibility in Hansen v Denmark.39 In this case the proceedings issued under a strict liability
provision were dismissed on merits rather than holding that the facts were not capable of
engaging Article 6 (2). A similar submission was made by counsel in Regina v. G,40 which was
held by Lord Philips CJ as "manifestly unsound in principle". The principle that emerges from
the foregoing authority is that Article 6 (2) has no bearing on the reduction or elimination of
mens rea requirements, and thus has no bearing on the imposition of strict liability.41

B. Defenses and the Requirement of a Voluntary Actus Reus


Critics of strict liability cite Regina v. Larsonneur as evidence that strict liability offences do not
require a voluntary actus reus.42 In Larsonneur, a French citizen was forcibly placed within the
United Kingdom and subsequently convicted of being an alien "found within" the United
Kingdom. Whilst Larsonneur has not been overruled authority has emerged to suggest that it is
outdated. In Hill v. Baxter43, the defendant driver ought to escape a conviction for reckless
driving, a strict liability offence, by arguing that he had suddenly blacked out. On appeal, the
38 Regina v. G [2003] 3 All ER 206 (CA) at paragraph 33.

39Hansen v. Denmark (Application No 28971/95) (unreported) 16' March 2000.

40 Regina v. G (Secretary of State for the Home Department Intervening) [2006] EWCA Crim 2052 CA
at 2063 paragraph 41

41 See Roberts, above n 19 at 50.

42 Regina v. Larsonneur [1933] 97 JP 206.

43 Hilly. Baxter [1958] 1 QB 277 (CA).


defendant's contention was rejected on the basis that he had provided no corroborating evidence.
However, Lord Goddard CJ held that in the context of offences imposing strict liability, "the
onus of proving a fact which must be exclusively within the knowledge of a party lies on him
who asserts it subject to the qualification that... the burden is not as high as it is on the
prosecution." Therefore, once the prosecution proved that the defendant was in the driver's seat
of the moving car there is, prima facie, an inference that he was driving. However, provided
there is evidence in support of involuntariness, the defendant is open to refute this inference.
The principle that emerges from this authority is that offences imposing strict liability require the
defendant to do the actus reus voluntarily. An accused may not rely on a defense that negates
mens rea but may invoke a defense that represents an independent circumstance of excuse, i.e.
voluntariness. This class of defenses includes,
(i) an act of god,44
(ii) automatism; provided that the degree of impairment is virtually absolute,45 and
(iii) duress and duress of circumstances.46

This is an excusing condition of duress is "rarely established" is irrelevant; the potential for a
plea to succeed in principle reaffirms the requirement of voluntariness. 47 Furthermore, if the
forgoing defenses are not available, dicta in Alphacell v. Woodward suggests that a requirement
of voluntariness can be implied or read into legislation by the court.48 Therefore, this author
submits that a factual scenario analogous to Larsonneur would most certainly be decided
differently in light of Alphacell.

C. The Rebuttable Presumption of Mens Rea

44 Southern Water Authority v. Pegrum [1989] Crim LR 442.

45 Attorney General's Reference (No. 2 of 1992) [1994] QB 91.

46 P Murphy, Blackstone's Criminal Practice (OUP, Oxford 2004) 67.

47 HLA Hart, Punishment and Responsibility (OUP, Oxford 1968) 256.

48 Alphacellv. Woodward [1972] AC 824 (HL) at 834, 845, 846 and 847.
A statute's silence in respect of mens rea is not conclusive indicia that the statute imposes strict
liability. The final proposition therefore is the statement of principle by Wright J in Sherras v. De
Ruzen,49 that "there is a presumption that mens rea... 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." Lord Steyn
has adopted a description of the presumption of mens rea as operating as a "constitutional
principle" that is not easily displaced by a statutory text.50 However, an example of subject-
matter that displaces the presumption given by Wright J was "acts which are not criminal in any
real sense". At this stage, this author proposes that the presumption of Sherras v. De Ruzen
represents merely a formal point of departure. Its substantive force is that mens rea is the default
position and is rebuttable where its implication is clearly outweighed by other factors.

6. REFORMATION OF STRICT LIABILITY

The law Commission suggested in its draft Criminal Code Bill, clause 20: Every offence requires
a fault element of recklessness with respect to each of its element other than fault elements,
unless otherwise provided.

(1) Subsection 1 does not apply to pre-Code offences.

49 B (A minor) v. DPP [2002] 2 AC 428 (HL).

50 Sherras v. De Ruzen [1895-9] 1 ALL ER 1167 at 1169.


The recklessness referred to is Cunningham51, not Caldwell52, recklessness. In R v.
Cunningham, the Appellant went to the cellar of a building and stole the gas meter. Appellant
was charged with larceny. He plead guilty and was sentenced to 6 months in prison. As a
consequence of this act by Appellant, a woman that lived in the house was endangered from the
exposure to gas leaking after Appellant took the gas meter. The prosecution alleged that
Appellant was guilty of a felony for malicious administering gas to an individual. The main issue
was whether Appellants actions were also malicious and constituted the crime of felony for
malicious administering of gas to an individual.

It was held that the Appellants appeal is granted because the question of whether his actions
were malicious was the question of the jury. In any statutory definition of a crime, malice must
be taken not in the old vague sense of wickedness in general but requires actual intention to do a
particular kind of harm or recklessness as to whether such harm should occur or not. It is neither
limited to nor does it indeed require any ill will toward the person injured. A foreseeable
consequence of his actions could be sufficient to constitute maliciousness. The law considered a
suggestion that the presumption in favour of mens rea should be displaceable only by an express
provision requiring some fault other than recklessness, or stating that no fault is required. But,
said the Commission, We do not think that this would be appropriate. We are mindful of the
constitutional platitude pointed out by Lord Ackner in Hunts53 case, that the courts must give
effect to what Parliament has provided not only expressly but also by necessary implication. If
the terms of a future enactment creating an offence plainly implied an intention to displace the
presumption created by clause 20(1), the courts would no doubt feel obligated to give effect to
that intention even if the present clause were to require express provision for the purpose.

7. CONCLUSION AND SUGGESTIONS

The question posed in the title of this article might seem to have a very simple answer: "Never."
The burden of this article, and the justification for spilling so much ink, is to explain why that

51239 Fed.Appx. 839,2007 U.S. App.

52 [1981] 1 All ER 961

53 [1987] AC 352
obvious answer is false. To be sure, many strict liability laws that are currently on the books are
inconsistent with principle of culpability-based retributivism. The basic Model Penal Code
position that strict liability should be excluded from criminal punishment is correct as a matter of
principle. But, to be faithful to retributive principles, we must view that position as a substantive
prohibition on penalizing conduct that is not blameworthy, not as a formal requirement that an
explicit mens rea or culpability term apply to every material element of every offense.

The requirement of formal culpability as to each element of an no offense is both too weak and
too strong. Its weakness becomes apparent when we examine non consummate offenses (such as
possession statutes) more carefully. One who satisfies all elements of such offenses might
nevertheless lack culpability with respect to the ultimate harm. But it is also too strong, in as
much as offenses characterized by formal strict liability in grading might exhibit comparable
culpability to offenses that contain explicit mens rea requirements.

Both strict liability in criminalization and strict liability in grading can violate retributivist
principles. Some would analyze strict liability in criminalization as instances in which the actor
has committed a wrong, but has done so without culpability. However, closer examination
reveals that this analysis is sometimes inadequate, and should be supplemented by a more
holistic examination of whether the actor's conduct or belief was deficient, considered ex ante.

Another critical issue is whether moral luck is consistent with retributivism. If it is, many
instances of strict liability would be justifiable.

In the end, the complexity of strict criminal liability reveals the complexity of our moral blaming
judgements and of the legal structure in which those judgement are embedded. To determine a
person's just deserts, we must look beyond the formal culpability with respect to each separate
element of an offense, and must view his culpability in the context of the offense as a whole.

10. BIBLIOGRAPHY
1. Carson, D. (1970) Some sociological aspects of strict liability [1970] Modern Law
Review 225.
2. Hogan, B. (1978) The mental element in crime; strict liability [1978] Criminal Law
Review 74.
3. Jackson, B. (1982) Storkwain: a case study in strict liability and self-regulation [1991]
Criminal Law Review 892.
4. Simester, A. (ed.) (2005) Appraising Strict Liability, Oxford: OUP.
5. Wootton, B. (1981) Crime and the Criminal Law: Reflections of a Magistrate and Social
Scientist, London: Stevens.