5. Strict, vicarious and corporate liability

Wright J stated the presumption in Sherras v De Rutzen. Mens rea, an evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence. The presumption is displaced by the words of the statute or by the subject matter, and both must be considered. Brend v Wood is the same caution. Unless the statute clearly, or by necessary implication, rules out a guilty mind, the court should not convict a person who has none. "Knowingly" generally imports mens rea, though not always. "Wilfully" and "maliciously" may do so, depending on construction. Cunningham is the construction case for maliciously.

Sweet v Parsley reaffirmed the presumption. A schoolmistress sublet a farmhouse, kept a room, and visited for the rent. Cannabis was smoked there. She did not know. Being "concerned in the management" of premises used for that purpose was not strict liability. The purpose had to be hers. Gammon v Attorney-General of Hong Kong lists what a court weighs: the statutory context, the social context, the severity of the penalty, and the need to enforce the law. If neighbouring sections use words of mens rea and the charging section does not, that is a clue, not a conclusion. Sherras still requires both the words and the subject matter to be considered.

Alphacell Ltd v Woodward is the case where "cause" dispensed with fault. Polluted water entered a river because vegetation blocked the pumps. There was no evidence of knowledge or negligence. The company was guilty under the Rivers (Prevention of Pollution) Act 1951. Cundy v Le Cocq treated a licensing offence as strict because the purpose was the repression of drunkenness. Pharmaceutical Society v Storkwain is the same method under the Medicines Act 1968. A pharmacist supplied drugs on prescriptions he honestly and reasonably believed to be genuine. Other sections of the Act used words of mens rea. The charging section did not. The offence was strict. At common law, public nuisance, criminal contempt, blasphemy and slander were put in the same class. In Lemon and Gay News the majority held that blasphemy does not require an intent to blaspheme. It requires an intention to publish words that are blasphemous. In Sierra Leone, contempt of court remains a common-law offence.

Where mens rea is required, a mistake that negatives it need not be reasonable. That is DPP v Morgan. Where the offence is strict, or is bigamy, a mistake of fact must be honest and reasonable. Tolson is the bigamy case. Two halfway answers are sometimes offered. In City of Sault Ste Marie the accused may escape strict liability by proving that he took all reasonable care. In Proudman v Dayman he may tender credible evidence of an honest and reasonable belief in facts that would make the act innocent, and the prosecution must then disprove that belief beyond reasonable doubt.

There is no general rule that a master answers for the crime of his servant. Raymond CJ said so in R v Huggins. Each person answers for his own acts. If the master commanded the crime, he is a principal in the second degree. That is his own liability, not vicarious liability. For regulatory offences the courts have used two devices so that the statute is not defeated. Delegation: the person on whom the duty lies has handed the management to someone else. Allen v Whitehead is the refreshment-house case. The manager's knowledge that prostitutes were on the premises was the occupier's knowledge, because management had been delegated. Vane v Yiannopoullos limits that. A complete delegation is required. A licensee who is on the premises, and whose waitress sells in breach of his instructions, has not delegated. The other device is construction. Words such as "sell", "use" or "keep" can make the employee's physical act the employer's act, because only the employer can transfer title. Coppen v Moore is the ham sold as "Scotch" against the owner's instructions. He was the seller, though not the salesman. Vicarious liability does not extend to aiding and abetting, where actual mens rea is required, or to attempt.

A company has no body and no mind. It acts through people. Identification treats the directing mind as the company. Tesco Supermarkets Ltd v Nattrass is the case. A branch manager failed to supervise an assistant. He was the hands, not the brains. The company's due-diligence defence under the Trade Descriptions Act 1968 was open. Lord Reid confined the company's criminal liability to the board, the managing director, and other superior officers who speak and act as the company. The manager of one shop in a chain of hundreds is not that person. A company cannot be convicted of murder. A one-man company cannot conspire with its only director, because conspiracy needs two minds: McDonnell. A company can be convicted of manslaughter. The older view that it could not has gone.