Strict Liability Offences in Scots Law

When we think about criminal liability in Scotland, two fundamental elements usually come to mind:

• Actus Reus – the guilty act

• Mens Rea – the guilty mind

Together, these form the general principle of criminal liability. Without both, a person cannot usually be convicted.

But what happens when the law removes the need for a guilty mind altogether? Enter Strict Liability Offences.

Mind

General Principles

• Actus Reus + Mens Rea = Criminal Liability

• Criminal thoughts alone = no liability

There are legal doctrines that play with this concept, i.e. the doctrine of transferred intent, which

show how mens rea can sometimes move between contexts. Generally, however, criminal law requires that both elements are present.

Some statutes expressly set out the mental element of an offence. They might use terms such as:

• “Intentionally”

• “Recklessly”

• “Negligently”

• “Knowingly”

• “Wilfully”

These words signal that the court must look at the state of mind of the accused.

But not always…

What is a Strict Liability Offence?

A Strict Liability Offence is one where the prosecution does not need to prove that the accused had a particular mental state at the time of the act. It is enough to show that the actus reus (the guilty act) took place.

In other words: you did it = you are guilty – regardless of intention, recklessness, or knowledge.

This is rare in Scots Criminal Law and only applies to statutory offences. A statutory offence is a codified/written piece of legislation that has been created by the Parliament (i.e. The Misuse of Drugs Act 1971).

Why Remove Mens Rea?

Strict liability exists mainly for policy reasons.

• These offences tend to arise in areas where large numbers of prosecutions are required for effective enforcement.

• They are often regulatory offences designed to protect the public.

• They cover areas where requiring proof of a guilty mind would make enforcement impractical (or very expensive and time-consuming!)

  
  

Common examples include:

• Road traffic law

• Drug offences

• Licensing law

• Food safety regulations

  
  

  

  Car in the rain

  
  

Statutes & Strict Liability

It’s important to note that:

• All strict liability offences are statutory.

• Not all statutory offences are strict liability.

The courts usually presume that Parliament intended a mens rea requirement unless it is clearly excluded. The absence of words implying mental state (like 'knowingly' or 'wilfully') may indicate strict liability, but courts will interpret cautiously before concluding that mens rea is unnecessary.

Justification

I always have my trusty 'An Introduction to Scots Criminal Law' Textbook to hand. This text was written by my former Criminal Law Lecturer, Sarah Christie (now Dr Sarah Sivers). As she notes:

“Strict liability will be justified in statutes where the offence is purely regulatory and is designed and necessary for the protection of society. If the provision is drafted in such a way that it cannot be applied effectively unless the mens rea element is removed, then the courts will apply it as a strict liability offence.” (Christie, 2nd edn, p.46)

Law Library

Key Takeaway

Strict liability offences are the exception, not the rule. They remove the need to prove a guilty mind, but only in specific statutory contexts where policy demands it.

What do you think? Do you agree with the reliance of strict liability offences?

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