Gammon v The Attorney General of Hong Kong, (1985) 1 AC 14
Citation: Gammon v The Attorney General of Hong Kong, (1985) 1 AC 14
Rule of thumb: How extensive do checks to avoid strict liability offences have to be? They have to be comprehensive & faultless, with a whole new unforeseeable & unknown risk discovered.
Judgment:
It was held stated that even in strict liability cases, there still had to be a mens rea – however, in order to show that there was no criminal mens rea, people had to show that they had been reasonably diligent and could not really have done anything more. Strict liability does not mean that the Court must prosecute someone if they have technically breached a strict liability statute, and it does not mean that they have as yet breached it in law. The basic facts of this case nonetheless were that Gammon was in charge of constructing buildings in Hong Kong. There had been a lot of health and safety problems in Hong Kong due to buildings that had not been constructed properly and it cau. The Hong Kong lawmakers therefore decided to make non-compliance with planning requirements a strict liability criminal offence in order to ensure that planning permission was carried out – the Hong Kong law makers decided the best way to do this was to ensure that absolutely all details for all parts of the plan had to be carried out, otherwise there was a breach. Gammon constructed a building which had a number of minor defects and Gammon was therefore prosecuted. The prosecution argued that because this was strict liability and Gammon was technically in breach, then this was an open and shut case where the accused did not have a leg to stand on. Gammon argued that strict liability could not be used to convict people for the smallest of defects as it would mean in practice that virtually every building that went up was a crime. Gammon was in this case convicted because he had not had a proper system in place for checking for small defects and doing everything possible to cut them out – Gammon accepted that it was inevitable that this would happen and did not bother to take all measures, meaning that he had technically broken the law. If Gammon had done everything in his power to prevent small defects, and the same small defects were still there, then Gammon would not have been in breach of strict liability, ‘(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.’ Lord Scarman
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.