The Public Welfare Offence

In one line

Strict liability grew out of nineteenth century regulatory statutes about liquor, food, weights and public health, and the class of offence it produced has four features that mark it off from the rest of the criminal law.

The historical setting

Strict liability is not an ancient doctrine. It appears with the regulatory state, and knowing why fixes the whole topic.

Through the nineteenth century legislatures began to create large numbers of offences that had nothing to do with the traditional criminal law: the licensing of public houses, the adulteration of food and drugs, weights and measures, the sale of poisons, factory safety and public health. Those offences did not fit the code of wrongs that the criminal law had grown up around. Nobody supposed a shopkeeper who sold underweight flour was wicked in the way a thief is, and yet the prohibition had to be enforced against thousands of shopkeepers a year.

Two pressures produced the doctrine.

The volume of enforcement. A licensing authority may bring hundreds of prosecutions a year, and proving a state of mind in each would defeat the scheme.

The nature of the defendant. The person prosecuted has chosen to enter a licensed or regulated trade and has accepted a standard as the condition of it.

The four features of the class

An answer that can name these can then test any modern statute against them, which is what the topic is for.

One. The offence is defined by an act or an omission with no adverb. No intentionally, knowingly, dishonestly, rashly or negligently appears in it.

Two. The prohibition is directed at an activity rather than at a person. The wrong is not that this defendant is bad; it is that this trade must be conducted in a certain way.

Three. The defendant is inside the regulated field. He holds a licence, keeps a shop, runs a factory, or deals in the commodity.

Four. The penalty is small. This is the feature the courts themselves treat as decisive. Srinivas Mall Bairoliya v. Emperor, (1947) 49 Bom LR 688, where a salt agent's employee had taken money above the controlled price, describes offences that can be committed without a guilty mind as a limited and exceptional class, usually of a comparatively minor character, and says it would be a surprising result if a person morally innocent of blame could be held vicariously liable for a servant's crime and punished with imprisonment up to three years.

The fourth feature is also the one modern statutes have abandoned. Regulatory offences in narcotics, economic and safety legislation now carry sentences far beyond three years, and an answer that notices that the class has outgrown its own justification is a strong answer.