The Constitutionality of Strict Liability Offences

(2011) 33 Dublin University Law Journal 285

35 Pages Posted: 1 Feb 2014

See all articles by David Prendergast

David Prendergast

School of Law, Trinity College Dublin

Date Written: June 24, 2011

Abstract

In 1996 Keane J, then an ordinary member of the Supreme Court, suggested that the complete removal of mens rea from criminal offences would be unconstitutional. Ten years later the Supreme Court in CC v Ireland struck down a statutory rape offence because of an absence of mens rea and the unavailability of a defence of mistake as to the victim’s age. This contribution to the Festschrift for Chief Justice Keane revisits the question of what constitutional principles are breached by the use of strict liability in criminal law. The suggested answer is that in an extreme case, such as Keane J envisaged in 1996, the legality principle may be breached but apart from that it is difficult to explain the unconstitutionality of strict liability per se in Irish law. The first part of this article critically analyses CC v Ireland, arguing that the judgment did not convincingly show incompatibility between the impugned strict liability offence and the Constitution. The second part of the article surveys potential constitutional bases for restraining strict liability; it considers the recommendation that the presumption of innocence should be thought of as restraining strict liability and emphasises the legality principle as an important check on criminalisation.

The question of the constitutionality of strict liability in criminal law and the question of the value of strict liability in criminal law may be related but are not the same. It may be that, on balance, strict liability ought not be used, especially for serious offences, but that does not mean there must be a constitutional doctrine to rule it out. This article is concerned with the question of the constitutionality of strict liability in Ireland. It generally neither favours nor disfavours the use of strict liability in criminal law; rather, it somewhat doubts that the Constitution puts, and should put, the use of strict liability off limits to the Oireachtas. The main reason for this is that judicial review of strict liability is problematic because there is an apparent absence of apt standards by which judges can decide what forms of strict liability are constitutionally permissible. Candidate constitutional doctrines for limiting strict liability are canvassed below and found to be problematic. That is not to say, however, that a doctrine to coherently limit strict liability per se could not be developed, but it is emphasised how such development would lead the courts deeper into the controversial territory of deciding the moral limits of the criminal law.

Keywords: substantive criminal law, strict liability, presumption of innocence, legality, constitutionality of criminal law, legal theory, presumption of mens rea

Suggested Citation

Prendergast, David, The Constitutionality of Strict Liability Offences (June 24, 2011). (2011) 33 Dublin University Law Journal 285, Available at SSRN: https://ssrn.com/abstract=2359084

David Prendergast (Contact Author)

School of Law, Trinity College Dublin ( email )

College Green
Dublin 2
Ireland

HOME PAGE: http://people.tcd.ie/dprender

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