Imposing Constitutional Limits on Strict Liability: Lessons from the American Experience
This chapter focuses on the American answer to the question: when is strict liability constitutional? and the possible lessons for English law as the Human Rights Act 1998 gives it “a source of ‘higher law’ that can be used as a benchmark of the constitutionality of criminal legislation”. Decisions regarding the constitutionality of strict liability in the United States fit with a principle of ‘constitutional innocence’. Under that principle, strict liability crimes are constitutional when, but only when, the other elements of the offence, with the strict liability element excluded, would themselves be constitutional. With adoption of the Human Rights Act 1998, strict liability in England could be subjected to analogous limitations under the same principle, with the European Convention on Human Rights playing the role of the United States Constitution.
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