Strict Liability and Strict Responsibility

Abstract

We distinguish criminal liability from criminal responsibility: I am liable if I can be convicted of an offence; I am responsible if I am called to answer for committing an offence, and am liable if I cannot offer an exculpatory defence. An orthodox principle is that neither liability nor responsibility should be ‘strict’: the prosecution must prove all elements of the offence, both ‘actus reus’ and ‘mens rea’ (fault). However, existing laws often make liability strict: conviction requires no explicit proof of legally defined fault as to an aspect of the offence, and the defendant cannot avoid liability by offering evidence of lack of fault. They also sometimes make responsibility, but not liability, strict: the prosecution need not prove fault as to every aspect of the offence, but the defendant can avoid conviction by offering evidence of lack of fault. Both kinds of provision are controversial: but strict liability can sometimes be just, if it is formal rather than substantive—if, although the prosecution need not explicitly prove fault, what must be proved amounts to proof of relevant fault; and strict responsibility can sometimes be just, when it is reasonable to place on the defendant the onus of disproving fault.