Constitutionality of strict liability in serious offences

Paz-CCFC

Are general questions re criminal law permitted in this thread? If not, delete away.


The Criminal Justice (Public Order) Act 1994 provides for the offences of riot (s14), violent disorder (s15) and affray (s16). The maximum custodial penalties are ten years, ten years and five years, respectively. The former two are purely indictable offences. The latter two have express mens rea - that the person intends to use/threaten violence or is aware that his conduct may be violent/threaten violence. There seems to be no stated mens rea for riot. Is this therefore a strict liability offence?

There is a line of caselaw stating that allowing strict liability depends, inter alia, on the seriousness of the offence (see, eg, Sweet v. Parsley, Shannon Fisheries v. Cavan Co Co [Keane J's dissenting judgment that 5 years' imprisonment could only be a serious offence]). I would think, given it's high maximum sentence and indictable nature, that s14 riot could only be seen as serious. On the other hand, MR may be dispensed with in the interests of some other social goal (McAuley & McCutcheon) (see, eg, M'Adam v. Dublin United Tramways).

If MR is not expressed in the Act, then there is a presumption that it was intended (DPP v. Ebbs). It is rebuttable, however. In CC v. Ireland, there was no stated MR in the Criminal Law (Amendment) Act 1935. The SC held 4-1 that the section was unconstitutional, as the previous law had no MR re under 13 and did re under 16, that the Oireachtas intended this to continue, as they would have changed it if they wanted. (Though, Denham J dissenting, held that it was too serious a crime to be intended as strictly liable).

Could it then follow that s14 of the 1994 Act is unconstitutional, for failing to provide a MR and defence for no intention/recklessness? As ss15 and 16 have MR for similar offences, it would seem that the Oireachtas intended none for s14, as they would have stated it if they wanted to. Or could it be dispensed in the interests of another social goal (namely, public safety).

Has there been any caselaw on this specific section? I can't seem to find any. Nor can I seem to find any subsequent legislation which inserts a MR clause into the section.

conorh91

The courts cannot find a person guilty of a criminal offence in the absence of mens rea unless a statute either clearly, or by clear implication, excludes the requirement of mens rea.

per Lord Reid in Sweet v. Parsley [1970] A.C. 132; quoted with approval in the Irish Supreme Court in the case of DPP v Murray [1976] 110 I.L.T.R 65

“Sometimes the words of the section which creates a particular offence make it clear that mens  rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that, whenever a section is silent as to mens  rea, there is a presumption that in order to give effect to the will of Parliament, we must read in words appropriate to require mens  rea. ”

Pat Mustard

I thought that this topic might be better off with its own thread.

Paz-CCFC

conorh91 wrote: »

The courts cannot find a person guilty of a criminal offence in the absence of mens rea unless a statute either clearly, or by clear implication, excludes the requirement of mens rea.

per Lord Reid in Sweet v. Parsley [1970] A.C. 132; quoted with approval in the Irish Supreme Court in the case of DPP v Murray [1976] 110 I.L.T.R 65

“Sometimes the words of the section which creates a particular offence make it clear that mens  rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that, whenever a section is silent as to mens  rea, there is a presumption that in order to give effect to the will of Parliament, we must read in words appropriate to require mens  rea. ”

Indeed, and DPP v. Ebbs (as mentioned in the OP) approved that in Ireland. However, CC v. Ireland suggests that the manner in which the law is drafted by the Oireachtas can rebut that presumption and imply that they intended not to have MR. In this case, the fact that they continued to omit, as they could have added it if they wanted. And in Minister for Justice v. Dolny, the HC (later upheld by the SC) cross-referenced similar offences in the same act (ss 2, 3 and 4 of the NFOAPA 1997) to hold that s3 has no mental element (nor defence of consent). Like CC, it stated that if the Oireachtas intended for there to be MR, they would have expressly written it, as they did with ss 2 and 3.

The Mustard wrote: »

I thought that this topic might be better off with its own thread.

Thanks Mustard. Was about to ask one of the mods if it would be more suited as a separate thread.

conorh91

Apologies Paz, I was on the phone when I first read your post and somehow overlooked your acknowledgement of Sweet v Parsley

Paz-CCFC wrote: »

And in Minister for Justice v. Dolny, the HC (later upheld by the SC) cross-referenced similar offences in the same act (ss 2, 3 and 4 of the NFOAPA 1997) to hold that s3 has no mental element (nor defence of consent). Like CC, it stated that if the Oireachtas intended for there to be MR, they would have expressly written it, as they did with ss 2 and 3.

That's a very good observation. Indeed, this principle of expression unis est exclusion alterius was, in any event, applied by Fennelly J in CC at IR p.63, by cross-referencing s.1 of the impugned Act of 1935 with s.4 of the same Act. Since s.4 contained a mental element, Fennelly J concluded that s.1 could not, since the drafter chose to remain silent on the mental element.

So on that basis, and following Dolny and the similar judgment of Keane CJ in Browne v Ireland [2003] 3 IR 205, it is correct to say that s.14 of the Criminal Justice (Public Order) Act 1994 lacks a necessity of mens rea, since mens rea is explicitly provided for elsewhere in the Act of 1994.

But in order to overcome the presumption of constitutionality, there may be one more salient factor to consider: In CC, the impugned provision imposed absolute, as opposed to strict liability. Any law that imposes absolute liability regarding the commission of a serious crime is unconstitutional, but the Supreme Court has left open the question of whether serious strict liability offences are constitutional or not.

Strict liability offences lie somewhere in between absolute and ordinary criminal liability because strict liability offences may by implication contain a defence of due diligence or reasonable belief.

Per Hardiman J at IR p.77

[43] On the existing jurisprudence […] it might appear that a defence of due diligence would suffice to justify a regulatory offence of strict liability as Dickson J used that term. Whether it would suffice for a true criminal offence carrying a sentence of life imprisonment is not a matter which arises for decision in this case. There is simply no such defence available here. No form of due diligence can give rise to a defence to a charge under s 1(1), even where the defendant has been positively and convincingly misled, perhaps by the alleged victim herself.

Hardiman J considered Wisconsin v Jedowski (2004) W 168, a decision of the Supreme Court of Wisconsin:

...'trict liability crimes, that is crimes defined without any culpable state of mind are known at law. In general when strict liability is imposed the actor is deemed to have had sufficient notice concerning the risk of penal sanction inherent in the proscribed activity that it is not unjust to impose criminal liability without the necessity of proving moral culpability.

The existence and content of a criminal prohibition in these cases are not hidden: the defendant is warned to steer well clear of the core of the offence (as in the statutory rape cases). Adults are well aware of the strict liability aspect of statutory rape laws. The legislature has broad powers to promote the public welfare and to create criminal offences and impose punishment.'

If during a riot, an actor can be said to have "sufficient notice" that his actions are unmistakably prohibited (i.e. the act of using or threatening to use violence with common purpose, causing fear), can the actor not extricate himself from that situation by using due diligence, and therefore escape liability? I don't know, but it's arguable.

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As an aside, I have never understood the Supreme Court's decision in CC to prefer the principle of expression unis est exclusion alterius (denying the existence of mens rea), over the principle of presumption of mens rea contained in Sweet v Parsley. Both are common law principles. Why should the former principle be preferred?

An argument might be advanced that when interpreting penal statutes, preference must be given to that interpretation which favours the Accused. But if that were really true, we may as well do away with Sweet v Parsley altogether. There may be another more obvious reason for the SCt's preference, but it escapes me.