Differences Between Strict And Overall Criminal Liability Regulation Essay

In standard, the criminal responsibility requires the proof of both actus reus and mens rea before convicting a person. When the necessity for the prosecution to establish mens rea (in the sense of purpose, knowledge or recklessness, or even carelessness) about the actus reus components of the offence is disregarded, either expressly or impliedly, the offence in question is referred to as strict or absolute responsibility offence.

What is the distinction (if any) between utter and strict responsibility offences? Give types of each.

First, it can determine what the prosecution must show.

Strict responsibility offences do not require proof of mens rea in respect of at least one component of the actus reus, usually the fundamental one. However, proof of mens rea may be needed for a few of the elements of the actus reus. Definite liability offences do not require proof of any mens rea element, but are satisfied by proof the actus reus only.

Second, the difference can be seen by examining the problem of causation

In strict responsibility, the prosecution must verify the causation of the actus reus and the offence. In Empress Car Co (Abertillery) Ltd v Country wide Rivers Expert [1998] HL, the lordship said that, 'While responsibility [for normal water pollution] is tight and therefore includes liability for certain deliberate functions of third get-togethers it is not an absolute liability in the sense that all that has to be shown would be that the polluting subject escaped from the defendant's land, irrespective of how this happened. It must still be possible to state that the defendant caused the pollution".

In absolute liability, however, a crime may well not require any causation hyperlink by any means, if the specified 'talk about of affairs' exists. In Winzar v Chief Constable of Kent (1983), the defendant was removed from a medical center by law enforcement and was then arrested and found guilty to be drunk on the road, even although police officers had put him there. The judge presented that it was enough showing that D had been present on the highway and was perceived to be drunk. It didn't matter that his presence on the highway was momentary and involuntary.

Third, it can determine what defences can be found to the defendant

Many academic documents differentiate strict and absolute liability offences by the availability of the defence of mistaken yet genuine belief, one common law defence. Where they can be found liability is rigorous, where it isn't available liability is utter.

The situation is made complex in case where defence are provided in the statue for the accused to escape responsibility. If common regulation defence is performed by court to be excluded from the offence, will the provision of statutory defence disqualify the offence to be a complete one? Or that it is the type of the offence that automatically classified the offence as total liability?

In the truth HKSAR therefore WAI LUN, the court docket of appeal gets the opportunity to check out the circumstance B (A Minor) v DPP, and made the following observation.

"Section 5 of the Sexual Offences Work 1956 managed to get an offence for a person to own unlawful sexual intercourse with a woman under 13 while section 6 managed to get an offence in relation to young girls under 16. Under section 6, a defence was expressly set out where the defendant, provided he was under the age of 24, believed the lady to be 16 or higher. . . As to the effect of these two offences, Lord Steyn said at 469A B that since section 5 contained no such defence, it "plainly" created an offence of overall liability". So the court is recommending that unlawful underage sexual intercourse, a normal well-known example of absolute liability, will never be considered as complete liability per se in today's of statutory defence in the provision. This observation is reaffirmed in the recent case Hin Lin Yee v HKSAR by Judge Chan PJ in para. 198 (ii) and (iii).

In other jurisdiction like Australia, the variation of strict and absolute liability is even blurred by the actual fact that common laws defence like duress and home defence can be accessible for absolute responsibility.

How does indeed one determine whether an offence is one of stringent or absolute responsibility?

The question of whether a statutory offence requires proof mens rea or is rigorous liability is cured as a subject of statutory development, the statutory provision enacting the offence must be construed to determine the legislative motive. In Gammon (Hong Kong) LTD v A-G of Hong Kong [1985] Personal computer, the lordship has summarized the method of the interpretation

There is a presumption of laws that mens rea is required before a person can be organised guilty of a unlawful offence.

The presumption is particularly strong where in fact the offences is "truly legal" in persona.

Truly criminal" offence usually pertains those interacting with violence against persons or property. The presumption is particularly strong due to stigma attached to the offence.

The presumption pertains to statutory offences, and can be displaced only if this is obviously or by necessary implication the result of the statute.

Sometimes the offence will expressly identify the type or degree of mental mistake by using words such as willfully, recklessly, carelessly, etc. In such cases, the courtroom must then continue to define the precise meaning of these mens rea words.

Where a statute is "silent" as to the mens rea for an offence, the courts must make a decision as a subject of general basic principle or statutory interpretation what level or type of mens rea applies.

The only situation where the presumption can be displaced is where in fact the statute is concerned with a concern of social concern, and public safeness is such as concern.

Strict liability has often been imposed in regulatory offences involving "social matter" and "open public safety", such as licensing, pollution, health and safety, driving a vehicle offences, environmental offences, public health offences.

Even in which a statute can be involved with this issue, the presumption of mens rea stands unless it may also be shown that the creation of tight liability will be effective to market the things of the statute by encouraging greater vigilance to avoid the commission payment of the prohibited work.

In Lim Chin Aik v R, the accused had been convicted under the immigration regulations of Singapore by staying there (after entrance) when he had been prohibited of joining. The aim of the law was to avoid unlawful immigration. The accused had no knowledge of the prohibition order and there is no evidence that the authorities had attempted to bring the prohibition order to his notice. Since there was little or nothing D could have done to find out whether a order had been made against him and therefore ensure compliance with the relevant legislation, the Privy Council bought that the offence was not one of strict liability because it did nothing to promote enforcement of the law.

What guidelines are behind the creation of complete and strict liability?

It is said that the imposition of demanding liability encourages greater observance of and compliance with law, and this is specially important where things of public security, public health insurance and public welfare are worried. High standards may be accomplished and maintained only if those conducting activities involving hazards to safety, health, the environment and so on are created to feel that it is not enough merely to take reasonable care; they need to take all possible treatment. Secondly, it is said that strict responsibility, by alleviating the prosecution of the duty of looking into and proving mens rea against an alleged offender, enhances the efficiency of your administrative and judicial systems.

In HIN LIN YEE & ANOR v HKSAR, Ribeiro PJ pointed out a reason in particular why absolute responsibility should be created. Utter responsibility can impose work on a person (which may be a corporate and business body) where in fact the conduct or task which is the main topic of the duty is used apt to be carried out by someone else, such as a worker or a service provider. It creates it inadequate for the company passively to say an honest and reasonable opinion. It stimulates proactive management and diligent supervision on his part to note that the duty is actually being properly discharged.

How do the principles of absolute and strict liability assist or hinder the Prosecution, the Accused and the Courtroom in a unlawful trial?

The concept assists the prosecution in a criminal trial since it relieves the prosecutor of the digital impossibility of proving intent or knowledge of the wrongful carry out, particularly where in fact the defendant was a company alternatively than a person. No significant hindrance is witnessed for prosecution in regard to the use of concept.

The concept helps the accused in a criminal trial since rigid liability draw a specific brand between legality and illegality, which may reduce the information cost for the general public to find out whether he's guilty or not. Unnecessary legal fee can also be preserved in this respect.

On the other hand, the idea hinders the accused in a criminal trial since it impose liability on people who have used all possible steps to prevent the offence being committed and should not be blameworthy. The onus of substantiation is also reversed to the defendant side.

The concept helps the court in a unlawful trial since it allows the court to attack down the countless bogus defense that would otherwise be successful if excusable ignorance or fault were always accepted as defense.

On the other side, the concept hinders the judge in a unlawful trial because the courts need to activate in time eating debates about whether the legislature intended demanding or absolute liability to apply. The down sides in identifying demanding liability offences is seen from the inconsistent attitude and decisions. Also, the court need to justify the creation of rigid liability will not per see contravene with the Costs of Protection under the law. [SO WAI LUN v HKSAR - [2006] HKCU 1195]

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