Strict and Vicarious Liability

Abstract

Strict liability is the phrase used to refer to criminal offences which do not require mens rea in respect of one or more elements of the actus reus. The phrase ‘absolute liability’ is sometimes used, but this is misleading because it wrongly implies both that an offence possesses no fault element at all, and that it is not possible to plead a defence to such crimes. Strict liability is now regarded as the exception rather than the rule: there is often said to exist a ‘presumption of mens rea’; however, this presumption is of relatively recent origin. The doctrine of mens rea evolved only gradually during the development of the common law, and the concept of subjective mens rea, which concentrates on the actual state of mind of the accused person, only developed once the accused was able to give evidence on his own behalf (the Criminal Evidence Act 1898: see Chapter 3.8).