LAW ESSAY

Strict liability offences do not require proof of mens rea in respect of at least one element of the actus reus, usually the essential one. However, proof of mens rea may be required for some of the elements of the actus reus. Absolute liability offences do not require proof of any mens rea element, but are satisfied by proof of the actus reus only.

Second, the distinction can be seen by examining the issue of causation

In strict liability, the prosecution is required to prove the causation of the actus reus and the offence. In Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] HL, the lordship said that, ‘While liability [for water pollution] is strict and therefore includes liability for certain deliberate acts of third parties … it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendant’s land, irrespective of how this happened. It must still be possible to say that the defendant caused the pollution”.

In absolute liability, however, a crime may not require any causation link at all, if the specified 'state of affairs' exists. In Winzar v Chief Constable of Kent (1983), the defendant was removed from a hospital by police and was then arrested and found guilty of being drunk on the highway, even though the police officers had put him there. The court held that it was enough to show 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 determines what defences are available to the defendant

Many academic papers differentiate strict and absolute liability offences by the availability of the defence of mistaken yet honest belief, a common law defence. Where they are available liability is strict, where it is not available liability is absolute.

The situation is made complex in case where defence are provided in the statue for the defendant to escape liability. If common law defence is held by court to be excluded from the offence, does the provision of statutory defence disqualify the offence to be an absolute one? Or that it is the nature of the offence that automatically categorized the offence as absolute liability?

In the case HKSAR and SO WAI LUN, the court of appeal has the opportunity to look into the case B (A Minor) v DPP, and made the following observation.

“Section 5 of the Sexual Offences Act 1956 made it an offence for a person to have unlawful sexual intercourse with a girl under 13 while section 6 made it an offence in relation to 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 girl to be 16 or over... 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 absolute liability”. So the court is suggesting that unlawful underage sexual intercourse, a traditional well-known example of absolute liability, will not be considered as absolute liability per se in the present 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 distinction of strict and absolute liability is even blurred by the fact that common law defence like duress and self defence can be available for absolute liability.