ABSTRACT
The contours of strict liability criminalisation are deconstructed in this chapter in terms of just censure (or otherwise). It is important to consider whether the crimogenic effect of non-fault liability can be justified, and whether better alternative comparative solutions are available. It is contended that by explicitly providing for punishment, despite a paucity of moral fault or blameworthiness, the individual is unfairly stigmatised as a criminal actor. A by-product is to undermine the moral credibility of the criminal justice process within the broader community.
A de novo due diligence defence to strict liability crimes ought to be equiparated with a procedural change to the burden of proof. This perspective has, in part, been adventitiously effected by a number of Anglophone jurisdictions. Within the penumbra of strict liability crimes, the prosecution is required to establish the material conduct elements of the crime beyond a reasonable doubt. The onus then shifts to the individual actor to establish on a balance of probabilities that they acted reasonably and with due care – a due diligence full defence to inculpation. There is a fairness inculcation as the defendant is best placed to provide evidence as to their business practices.
It is propounded that a particularised reverse burden for strict liability crimes would better accord with both the letter and spirit of Article 6(2) of the ECHR (presumption of innocence). Irrespective of the reasonableness (or otherwise) of a defendant’s conduct and business activities, the imposition of strict liability deleteriously and counter-intuitively imposes punishment. The intentional progenitor of harm(s), the reckless polluter, the negligent distributor, and the careful and exacting professional seller are counter-normatively all treated in a homogenised fashion in terms of fault and culpability. A due diligence defence aligned with a reverse legal burden would be more efficacious than extant law. The time is ripe for substantive reform to avoid overbroad crimogenic effects of strict liability, and to cathartically promote fair warning and legality precepts.
