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36 Cards in this Set

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Defence of Reasonable Care
The issue: can an accused avoid conviction for a strict liability offence by showing that he took all reasonable care?

In Irish law, no.

Maguire, M’Adam, and Shannon all hold that there is no defence to a strict liability offence of having taken reasonable care.

However, all of these cases indicate that where a Def shows that he took all reasonable care in avoiding the commission of the offence, punishment can be mitigated (e.g. a smaller fine for pollution etc.).

Keane J.’s dissent in Shannon extends to this issue: he holds that there should be a defence of reasonable care.

Regan -v- Judge Patwell - even if a defence of reasonable care were available, the Applicant would not have been entitled, on the evidence, to raise it, so lacked locus standi.
Strict Liability - Introduction
Criminal liability is strict if the Prosecution does not have to prove a mens rea for every element of the actus reus.

E.g. RTA 1961: driving dangerously, no mens rea necessary.
Common Law Offences
Common Law Offences

English law traditionally contains three common law offences where no mens rea is required:

Blasphemous libel:
Whitehouse v. Lemon (1979) – photograph of Christ on the cross having sexual acts performed on him, strictly handled; however Ireland has not followed his – SC in Corway v. Independent Newspapers (2000) held that blasphemy is not a strict liability offence.

ii. Outraging public decency:
Gibson v. Sylviere (1991): art sculpture with foetus earings; court held that no mens rea required. Don’t know if this would be followed in Ireland.

iii. Contempt of court:
Traditionally required no mental element, but this is now in serious doubt in Ireland: Kelly v. O’Neill (2000): Keane J. held that in the absence of modern authority, it is possible that contempt requires a mens rea.
Blasphemous libel
Whitehouse v. Lemon (1979) – photograph of Christ on the cross having sexual acts performed on him, strictly handled; however Ireland has not followed his – SC in Corway v. Independent Newspapers (2000) held that blasphemy is not a strict liability offence.
Whitehouse v. Lemon (1979) UK
Blasphemous libel - photograph of Christ on the cross having sexual acts performed on him, strictly handled
Corway v. Independent Newspapers (2000)
SC held that blasphemy is not a strict liability offence. Ireland has not followed Whitehouse -v- Lemon.
Outraging public decency
Gibson v. Sylviere (1991): art sculpture with foetus earings; court held that no mens rea required. Don’t know if this would be followed in Ireland.
Gibson v. Sylviere (1991)
Art sculpture with foetus earings; court held that no mens rea required. Don’t know if this would be followed in Ireland.
Contempt of court
Traditionally required no mental element, but this is now in serious doubt in Ireland: Kelly v. O’Neill (2000): Keane J. held that in the absence of modern authority, it is possible that contempt requires a mens rea.
Kelly v. O’Neill (2000)
Keane J. held that in the absence of modern authority, it is possible that contempt requires a mens rea.
Statutory Offences
This is where the majority of strict liability offences are created.

Some offences are explicitly strict.

However, some are completely silent as to whether each element of the actus must be accompanied by a mens.

People (DPP) v. Murray (1977): rebuttable presumption that every offence requires mens rea.

In considering whether the presumption has been rebutted, the courts consider four factors:

Object of Legislation;
Seriousness of Offence;
Wording of the Statute;
Legislative antecedents.
People (DPP) v. Murray (1977)
Rebuttable presumption that every offence requires mens rea.
Object of Legislation
The court establishes the purpose of the statute, considering whether strict liability would promote this purpose.

Thus, statutes promoting a social concern, public health or public safety and requiring vigilance are usually found to be strict.

M’Adam v. Dublin United Tramways (1929): statute prohibiting the overloading of trams was silent as to a mental element; Sullivan P held that the public health objective of the legislation could be achieved only by an absoluted prohibition.

Maguire v. Shannon Regional Fisheries Board (1994): Lynch J. the HC held that an offence prohibiting river pollution was, because of the public nuisance of the offence, a strict liability offence.

Shannon Regional Fisheries Board v. Cavan County Council (1996): SC endorsed Maguire in terms of public pollution, but found that the Def had knowingly polluted, so mens rea was present anyway.
M’Adam v. Dublin United Tramways (1929)
Statute prohibiting the overloading of trams was silent as to a mental element; Sullivan P held that the public health objective of the legislation could be achieved only by an absoluted prohibition.

the absence of words such as “intentionally” etc. added weight to the argument of strict liability.
Maguire v. Shannon Regional Fisheries Board (1994)
Lynch J. in the HC held that an offence prohibiting river pollution was, because of the public nuisance of the offence, a strict liability offence.
Shannon Regional Fisheries Board v. Cavan County Council (1996)
SC endorsed Maguire in terms of public pollution, but found that the Def had knowingly polluted, so mens rea was present anyway.

Keane J., dissenting in the SC in Shannon, suggested that the severity of punishment under statute should also be considered.


Keane J.’s dissent holds, also, that there should be a defence of reasonable care.
Seriousness of Offence
The more serious the offence, the less likely it is to be interpreted as requiring no mental element.

In other words, truly criminal offences are likely to require mens rea, whereas merely regulatory offences may not.

Thus, the above cases of strict liability are all regulatory in nature; this formed a part of their ratio decedendi. M'Adam, Maguire and Shannon -v- Cavan

Keane J., dissenting in the SC in Shannon, suggested that the severity of punishment under statute should also be considered.
Wording of the statute
In M’Adam, the absence of words such as “intentionally” etc. added weight to the argument of strict liability.

Also, other comparable provisions in the statute may shed some light on the nature of the offence.
Legislative antecedents
CC v. Ireland (2006): in finding that the offence in the 1935 Act was strict, Geoghegan J. considered a previous statute which had included a defence requiring examination of the accused’s mens rea. The deliberate omission of this defence, coupled with repetition of it in other parts of the 1935 Act showed clear legislative intention that the offence should incur strict liability.
CC v. Ireland (2006)
In finding that the offence in the 1935 Act was strict, Geoghegan J. considered a previous statute which had included a defence requiring examination of the accused’s mens rea. The deliberate omission of this defence, coupled with repetition of it in other parts of the 1935 Act showed clear legislative intention that the offence should incur strict liability.

In C.C. v. Ireland [2005] IESC 48, [2006] 4 I.R. 1, Denham J. emphasised that offences (beyond mere regulatory offences) excluding a mental element are rarely, if ever, in our constitutional scheme, to be implied where a serious penalty for conviction is provided by statute. A regulatory measure with a small penalty is different. She stated, speaking of an offence carrying a severe penalty for under age sexual intercourse at para. 20; p. 11:-

"… the intention of the legislature is best construed from the words of the Act. If the words are clear and unambiguous then they should be given their ordinary and natural meaning. In this case the words of the statute are clear and unambiguous and the meaning of the statute appears clearly from the words. The words themselves do not create an offence of strict liability. On the words of the statute there is no exclusion of the requirement of mens rea . As it is only if the words are not clear that one may proceed to a construction by implication, the second step does not arise if one applies the general rules of interpretation of statutes to this section."
Minister for the Environment v Leneghan
The respondents were charged with one offence contrary to reg. 4(3) of the European Communities (Conservation of Wild Birds (Owenduff/Nephin SPA004098) Regulations 2005.

At the conclusion of the prosecution case the respondents’ solicitor submitted that the court should determine the issue of whether the offence under reg. 4(3) of the Regulations of 2005 was one of strict liability. The appellant argued that the prosecution was not required to show any mens rea element and that the offence was in fact one of strict liability. The respondents contested this interpretation of the Regulations of 2005, contending that the prosecution was obliged to satisfy the court that an element of intent had existed on their part.

The District Judge, having heard these arguments decided that the presumption in favour of a mens rea element to the criminal offence had not been rebutted, and as no evidence of intention had been adduced by the prosecution, the court dismissed the charges against the respondents.

The appellant requested that the District Judge seek a determination from the High Court as to the correct construction of the Regulations of 2005. The opinion of the High Court was sought on the following question:-

“Was the learned District Judge correct in her determination that an offence contrary to reg. 4(3) of the European Communities (Conservation of Wild Birds) (Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No. 715 of 2005) is not one of strict liability?”

Held by the High Court (Hedigan J.), in answering the case stated in the negative and holding that a mens rea element did not need to be proven,

1, that, it was clear that a significant presumption existed, in respect of all criminal offences supported by penal sanction, that an element of mens rea must be shown before a conviction might be secured. The presumption of a mens rea element could, however, be rebutted to varying extents.
C.C v. Ireland [2006] IESC 33, [2006] 4 I.R. 1 applied; Sherras v. De Rutzen [1895] 1 Q.B. 918 approved.

2. That the offence created by reg. 4(3) of the Regulations of 2005 must be one of strict liability. While the moral gravity of the offence in question and the social stigma
attached thereto might not be as severe as certain other offences on the criminal calendar, the relevant provisions undoubtedly performed an important regulatory function. The prohibition or limitation on grazing on special protection areas was an important aspect of the State’s obligations under the environmental laws of the
European Union. There was a pressing social and political interest in ensuring that legislative measures adopted in furtherance of these obligations were rigorously adhered to.

Reilly v. Patwell [2008] IESC 446, (Unreported, High Court, McCarthy J., 17th October, 2008) followed.
O’Connor v O’Neill (2011)
Finally, O’Connor v O’Neill [[2011] IEHC 118.] is another recent case where strict liability was countenanced in the High Court. Hanna J., applying a 2003 High Court judgment, [62] [ People (DPP) v Behan , High Court, O Caoimh J., March 3, 2003.] identified s.13 of the Road Traffic Act 1994 as containing a strict liability offence of refusing or failing to provide breath specimens and held it to be constitutionally sound. It is evident that CC has not served to change the view in the High Court about strict liability in this drink driving-related offence.
Minister for Justice v Dolny [[2008] IEHC 326; [2009] IESC 48.]
Peart J. in the High Court, for the purposes of ascertaining the requisite corresponding offence in Irish law to an offence in Poland specified in an extradition warrant, interpreted the assault causing harm offence in s.3 of the Non-fatal Offences Against the Person Act 1997 with the implication that it is a strict liability offence. Peart J.’s interpretation of the offence was approved by the Supreme Court. [60] [Peart J.’s statutory interpretation in Dolny has been strongly criticised. See Catherine O’Sullivan, “The Importance of Correct Statutory Interpretation Technique: the Case of Minister for Justice, Equality and Law Reform v Dolny ” [2010] 45 Ir. Jur. 146 .]
People (DPP) v Power [2007] IESC 31
People (DPP) v Power [55] [[2007] IESC 31.] concerned the offence of possession of a controlled drug with a market value of €13,000 or more for the purposes of sale or supply contrary to s.15A of the Misuse of Drugs Act 1977 . [56] [As inserted by s.4 of the Criminal Justice Act 1999 .] Life imprisonment can be imposed for this offence and it is meant to carry a mandatory minimum sentence of 10 years. [57] [Misuse of Drugs Act 1977 s.27(3A)-(3C) inserted by s.5 of the Criminal Justice Act 1999 .]

The Supreme Court - Finnegan J. provided the court’s judgment in July 2007, one year after the second CC decision; the other judges on the court for this case were Murray C.J., Denham, Fennelly, and Macken JJ. - held that there was no mens rea required to be proved in respect of the objective element of the value of the drugs and thus liability in this respect was strict.
Gammon (Hong Kong) Limited v Attorney General
The second CC decision may have been influential in this regard since the rhetorically powerful judgment of Hardiman J. promotes the idea that strict liability simply cannot feature in truly criminal offences, as distinct from regulatory offences. However, more clearly influential—quoted in both Reilly [41] [[2008] IEHC 446 at para.30. The Gammon passage appears in Reilly v Patwell via its quotation in the influential judgment of Lynch J. in Maguire v Shannon Regional Fisheries Board [1994] 3 I.R. 580 .] and Leneghan [42] [[2009] IEHC 226; [2009] 3 I.R. 727 at 732.] —was the following passage of Lord Scarman in the Privy Council in Gammon (Hong Kong) Limited v Attorney General :

“In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants’ counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.” [43] [[1985] A.C. 1 at 14. See McAuley and McCutcheon, fn.39 above, at 319–320, criticising this passage from Gammon and describing its mixed reception in various common law jurisdictions.]
Reilly v Judge Patwell [2008] IEHC 446
The High Court cases of Reilly v Patwell [32] [[2008] IEHC 446.] and Minister for the Environment v Leneghan [33] [[2009] IEHC 226; [2009] 3 I.R. 727.] involved the presumption of mens rea being applied and rebutted in interpreting offences committed via, respectively, litter being present in front of a premises [34] [Contrary to s.6 of the Litter Pollution Act 1997 .] and sheep grazing within a forbidden zone. [35] [An offence contrary to reg.4(3) of the European Communities (Conservation of Wild Birds) (Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No. 715 of 2005).] In Reilly , McCarthy J. distilled from a number of authorities a non-exhaustive list of factors to help ascertain whether the presumption of mens rea is rebutted. [36] [[2008] IEHC 446 at para.52.] Hedigan J. in Leneghan adopted this list. [37] [[2009] 3 I.R. 727 at 733–734.] The enumeration of these factors is an attempt to work out in detail how the subject matter of the offence bears on the question of whether the presumption of mens rea is rebutted. The factors are:

“1. The moral gravity of the offence.

2. The social stigma attached to the offence.

3. The penalty.

4. The ease (or difficulty) with which a duty is discharged or the law obeyed.

5. Whether or not absolute liability would encourage obedience.

6. The ease or difficulty with which the law might be enforced.

7. The social consequences of non-compliance.

8. The desideratum to be achieved when considering the statutes.”Reilly v Patwell [2008] IEHC 446 at para.52 .
DPP v Donnelly (2012)
Facts Two questions came before this court on foot of a Case Stated from the Circuit Court regarding the appeal by the accused against his conviction for driving without insurance contrary to section 56(1) and (3) of the Road Traffic Act, 1961 as amended. The vehicle in question was owned by the accused’s father and was insured under a policy of insurance, issued by AXA Insurance Limited to the accused’s father. The accused’s father and his wife were named drivers on the policy of insurance but the accused who was driving the vehicle with his father’s consent at the relevant time was not named on the policy of insurance. At the hearing before the Circuit Court it was submitted on behalf of the accused that an offence contrary to s. 56 is committed only when a motor vehicle is used in a public place in circumstances where an insurer is not liable for any injury or damage incurred by a third party as a result of the negligent use of the vehicle. The accused argued that an insurer is liable for any injury or damage caused to a third party as a result of the negligent use of that vehicle when, as in this case there is in force an approved policy of insurance. It was further submitted that pursuant to Council Directive 72/166/EEC and Second Council Directive 84/5/EEC that an insurer is precluded from limiting cover to the use of a vehicle by named persons, to refuse to compensate third party victims of an accident caused by the insured vehicle. The prosecutor submitted that the insurer, by way of contract with the insured, was entitled to restrict cover to named users of the vehicle. His Honour Judge Teehan stated two questions for the decision of this Court pursuant to s. 16 of the Courts of Justice Act, 1947. However, the Court was asked to answer question two only if it gave an affirmative answer to the first question. Question one asked: “In section 56(1) of the Act of 1961 does reference to a Vehicle Insurer being liable for injury caused by the negligent use of a vehicle include liability to pay damages to, or to satisfy judgment obtained by a third party claimant pursuant to section 76 of the said Act”? Counsel on behalf of the accused argued that s. 56 was a penal provision and ought to be construed strictly. Essentially it was argued on behalf of the accused that if the vehicle insurer/insurance company was liable on foot of the policy of insurance in existence to satisfy an award of damages in favour of a third party arising out of the negligent use of the vehicle which was the subject of that policy of insurance then the accused was not be guilty of driving without insurance.

Held by the Supreme Court; Fennelly (Denham CJ, Hardiman, O’Donnell, McKechnie JJ) in answering the first question in the negative: That the first question essentially asked whether the ‘vehicle insurer’, namely AXA Insurance Ltd, would have been liable for any injury or damage caused to a third party by the negligent driving of the accused or a named driver on the relevant date. The answer is that the ‘vehicle insurer’ would not have been liable in those circumstances. The ‘vehicle insurer’ would certainly have been liable for his negligent driving, if it had been the owner of the vehicle. However the liability of an insurer, in the event of injury caused by the negligent driving of an insured person, is to indemnify the latter. The duty is owed to the insured, whose liability the insurer is bound to meet and is not owed directly to the injured party. The liability to the injured party remains the liability of the insured person. Section 68 of the Road Traffic Act, 1961 put the matter beyond doubt. Furthermore, the plain legal meaning of the word ‘liable’ was that a ‘vehicle insurer’ was liable as a matter of law to pay damages to an injured party for the consequences of its own acts, including acts of the drivers of vehicles which it owns for which it is vicariously liable. The insurer was liable in that way only when it owned the vehicle. The language in the section 56 of the Act of 1961 was clear and unambiguous.
Brady v. The Environmental Protection Agency (2007)
Charleton J = Obiter dictum: That offences (beyond mere regulatory offences) which excluded a mental element were rarely, if ever in our constitutional scheme, to be implied where a serious penalty was provided by statute.

"It is difficult to see offences of absolute or strict liability being compatible with the constitutional scheme where they go beyond the regulation of society through the imposition of small penalties based upon absolute or strict liability. In this regard, the judgment of Denham J. in CC is a most valuable guide to the general part of criminal law."

The most troubling aspect of this case has been the potential for the applicant, through no apparent fault of his own, to find himself facing a fine to an amount which will probably exceed all of his resources in monetary terms and a term of ten years in jail should any of the conditions attached to the licence be breached. A breach of the licence or its conditions is a crime and carries that potential consequence. I am satisfied, however, that what the applicant is faced with is not absolute or strict liability for the commission of a criminal offence.

In other words, the applicant does not necessarily become liable for a breach of the criminal law simply because a farmer to whom he has sold slurry spreads it improperly. Nor is it the case, in my view, that only a defence of reasonable care is open to him, thus making the offence detailed above one of strict liability as defined by the Canadian Supreme Court in R. v. City of Sault Saint Marie (1978) 85 DLR (3d) 161. I would regard the prospect which the applicant might face in respect of a criminal charge as being completely different to that detailed by the Supreme Court in Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 I.R. 267.

The application of the dissenting judgment of Keane J. in that case, however, might have enhanced many subsequent analyses of the legal interpretation of criminal statutes. The offence of breach of a licence condition is one of true criminal liability where a mental element of intention or recklessness is necessarily to be inferred into the definition of the offence. This means that the applicant is liable either if he intends that a farmer to whom this slurry is provided is to spread it in breach of the licence conditions or if he advertently takes a serious and culpable risk that a third party to whom he supplies pig slurry will breach the conditions of the licence. Fundamentally, he is obliged to take care and the conditions in the licence set out the necessary measures in that regard.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #1
1. The moral gravity of the offence.






Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #2
2. The social stigma attached to the offence.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #3
3. The penalty.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #4
4. The ease (or difficulty) with which a duty is discharged or the law obeyed.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #5
5. Whether or not absolute liability would encourage obedience.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #6
6. The ease or difficulty with which the law might be enforced.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #7
7. The social consequences of non-compliance.
Reilly -v- Judge Patwell (2008), criteria by which to determine strict liability offences, per McCarthy J. #8
8. The desideratum to be achieved when considering the statutes.”Reilly v Patwell [2008] IEHC 446 at para.52 .