Conduct and consequence crimes, strict liability and transferred malice

Overview

Recall questions on the distinction between conduct and consequence crimes and the role of luck, the arguments for and against strict liability and the presumption of mens rea, and whether transferred malice produces just outcomes.

What you need to know

Answer each one before you reveal it.

Questions from this subtopic

Each one with the model answer underneath.

1. 1

   What is the key distinction between conduct crimes and consequence crimes, and why might this classification be criticised in terms of moral culpability?

   Model answer

   Conduct crimes require only the prohibited act itself (e.g. perjury), while consequence crimes require a specific result (e.g. death in murder). Critics argue this classification may not adequately reflect moral culpability because someone who attempts to cause harm but fails may be equally blameworthy as someone who succeeds, yet faces lesser liability.

2. 2

   Why might it be argued that consequence crimes impose liability based partly on luck rather than purely on moral fault?

   Model answer

   Because whether a harmful result occurs may depend on factors beyond the defendant's control (moral luck). Two defendants with identical intentions may face different charges simply because one victim survived and another died, raising questions about whether the classification truly reflects culpability.

3. 3

   What is the main argument in favour of strict liability offences?

   Model answer

   They promote higher standards of care in regulatory areas (food safety, pollution, road traffic) by removing the prosecution's burden of proving fault, thereby encouraging compliance and making enforcement more efficient as a deterrent.

4. 4

   What is the principal justice-based argument against strict liability offences?

   Model answer

   They violate the fundamental principle that criminal liability should require proof of fault (mens rea). Convicting morally blameless defendants who took all reasonable precautions undermines the legitimacy of criminal law and may be seen as unjust.

5. 5

   How do courts determine whether a statutory offence imposes strict liability, and what criticism is made of this approach?

   Model answer

   Courts apply the Gammon presumption of mens rea, considering factors like whether the offence is 'truly criminal' or regulatory, the severity of punishment, and whether strict liability promotes the statute's purpose. Critics argue these factors are vague and may not adequately protect defendants from conviction without fault.

6. 6

   Why might the presumption of mens rea be considered inadequate protection for defendants in strict liability cases?

   Model answer

   The presumption can be easily displaced by courts finding the offence is regulatory or that strict liability would encourage greater vigilance. Parliament rarely makes its intention explicit, leaving courts significant discretion that may favour prosecution convenience over defendant protection.

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