Should Criminal Law Only Prevent Risks? On Strict Liability

Modern states were founded on the premise of ensuring the peaceful coexistence of human beings, thereby surrendering certain rights to prevent the law of the strongest (state of nature) from prevailing. Security is maintained through the assumption of the monopoly of ius puniendi by the state, with criminal law wielded as a 'weapon in the fight against crime' (Liszt, 293). From this perspective, it is undeniable that the mission of criminal law is to provide security or, in other words, to prevent conduct from jeopardising social peace. This preventive mission serves as a guiding principle for criminal policy, directing public policies in criminal matters.

However, in recent decades, under the guise of risk prevention, we have witnessed a phenomenon described by some as ‘expansion’ (Silva Sánchez), ‘overcriminalisation’ (Husak), or simply ‘maximum criminal law’ (Ferrajoli). What does this growth in criminal law entail? In essence: new crimes, harsher punishments, and a relaxation of guarantees. Society demands security, and states respond by resorting to criminal law as a tool. The objective is that, by enacting laws, criminalising new acts or imposing severe penalties, insecurity disappears.

Following this line of reasoning, it can be argued that: i) the state, in its modern conception, has in its DNA the duty to ensure peaceful coexistence; ii) criminal law is utilised, among other means, to achieve this objective; iii) in this eagerness to prevent risks, criminal law is increasingly enacted. This is the breeding ground for the proliferation of strict liability crimes. Let us delve into this issue.

In short, strict liability crimes only require the establishment of a voluntary act that 'causes' the prohibited conduct (actus reus). Therefore, the prosecutor is not required to prove the defendant’s specific state of mind (mens rea), i.e. intention, negligence, or recklessness, for the criminal offence. A clear example of such an offence is found in the Terrorism Act 2000 s. 13 punishes any person who "(a) wears an item of clothing, or (b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation". The prosecutor is not required to prove more than the material elements of the offence since it is not necessary to prove the accused's knowledge of them (Pwr v Director of Public Prosecutions, [2022] UKSC 2, 58).   

Nowadays, these types of offences are mainly linked, in addition to terrorism, to drug trafficking, environment, and public health, although they have also advanced with respect to offences far from a hard core of criminal protection (mala in se) such as, e.g. the (strict) liability of parents for the regular non-attendance of their children at compulsory school age (Education Act 1996, s. 444.1).

Returning to the outset of this discussion, the main support for criminalisation and punishment based on the strict liability criterion has been deterrence and public safety. Some precedents may serve to demonstrate this: "[t]his makes clear that a central purpose of the provision is to deprive the organisation of the benefits to it of publicity. Publicity would not be in the public interest because, for example, it is damaging to national security; and the provision is consistent with the least prejudicial means of achieving this purpose. Although the appellants submit that imposing strict liability cuts across the requirement for the interference to be the minimum necessary, it is our view that a fair balance has been struck between the position of the participants in the prohibited activity and the proper interest of the community in its security” (Pwr v Director of Public Prosecutions, [2022] UKSC 2, 68). For completeness: “[f]or reasons which their Lordships have already developed, there is nothing inconsistent with the purpose of the Ordinance in imposing severe penalties for offences of strict liability. The legislature could reasonably have intended severity to be a significant deterrent, bearing in mind the risks to public safety arising from some contraventions of the Ordinance... The Board considers that the imposition of strict liability for importation is here also warranted by the public interest” (Nurse v Republic of Trinidad and Tobago, [2019] UKPC 43, 35-47).

Under the argument of the need for deterrence and risk prevention, the strict liability criterion is utilised, and thus punishment becomes a matter of lottery (Simester et al., 193): “anyone who is reasonably unaware (unvermeidbar in German-style criminal law) of any of the external elements of the offence will still be convicted, as they cannot invoke a defence of denying mens rea” (Green, 5).

Regarding empirical analysis (i), we lack statistics showing that strict liability crimes have reduced criminality or succeeded in improving the 'awareness' of those who engage in certain 'risky' activities to reach a 'higher standard of care'. From a dogmatic perspective (ii), these offences represent an exception to the maxim governing the common law structure: actus non facit reum nisi mens sit rea. Finally, in the criminal policy sphere (iii), they represent a form of criminalisation that ignores the nature of human beings. This last observation deserves special attention.

Human beings possess a basic and native openness to the good, i.e., we have a freedom that is given to us (Sánchez-Ostiz, 7). This anthropological freedom put into action implies the capacity to choose: we drink tea or coffee, we travel by train or bus, we play football or rugby... In turn, this capacity to opt for alternatives implies volition and knowledge. We observe, process and internalise the factual reality around us, and then by an act of will we set ourselves in motion. Consider this example: the behaviour of someone who takes a gun, waits hidden on the roof, watches for their victim to come out of a bar and shoots is predicated on free will. This quality of human beings is recognised and respected by criminal law through the principle of "individual autonomy" (Ashworth, 79) or "personal autonomy" (Gardner, 241).

Strict liability crimes would disregard this principle and, ultimately, this expression of human freedom. This is so since, by not allowing a defence of 'reasonable mistake', they admit the imposition of a sentence and the social stigma of a conviction on an unfree person, in the sense that the accused is unaware of part of the factual reality involved in the act. Indeed, in response to the question posed above, it would appear that the objective of deterrence and prevention, ultimately public safety, is imposed at the expense of "luckless victims" (R v Lim Chin Aik [1963] AC 160, 174) who must bear an undeserved punishment.

Strict liability crimes are a faithful reflection of what might be called 'security criminal law'. It would seem that, even without empirical evidence, creating an exception to the classical common law structure and disregarding the principle of individual autonomy, the obsession with risk prevention would sometimes justify the punishment of persons whose freedom, in the sense of knowledge, is absent. Are we willing to pay that cost?

Links & references

https://www.legislation.gov.uk

https://caselaw.nationalarchives.gov.uk

v. Liszt, F. (1899) Die Aufgaben und die Methode der Strafrechtswissenschaft. Cite by F. v. Liszt, Strafrechtliche Aufsätze und Vorträge, II (1905), reprint (1970), Berlin: de Gruyter

Silva Sánchez, J. M. (1999) La expansión del Derecho penal. Aspectos de la política criminal en las sociedades postindustriales, Madrid: Civitas

Husak, D (2008) Overcriminalization: The Limits of the Criminal Law, Oxford: Oxford University Press

Ferrajoli, L (1995) Derecho y razón: teoría del garantismo penal, Madrid: Trotta

Simester, A et al. (2010) Criminal Law: Theory and Doctrine, Oxford: Hart Publishing

Sánchez-Ostiz, P (2014) La libertad del Derecho penal: ¿de qué hablamos cuando decimos Libertad?, InDret (1)

Ashworth, A (1991) Principles of Criminal Law, Oxford: Clarendon Press

Gardner, J (1998) On the General Part of Criminal Law, in Duff, A (ed.), Philosophy and the Criminal Law: Principle and Critique, Cambridge: Cambridge University Press

Green, S P (2005) Six Senses of Strict Liability, in Simester, A (ed.), Appraising Strict Liability, Oxford: Oxford University Press