Strict liability

I was told a story recently about a legal concept which might have been called strict liability. The idea is that where there is strict liability for something and you have such a something in your possession, then you are liable, irrespective of how the something came into your possession or of whether you knew you had it or not.

Strict liability applies to guns, so if, for example, someone puts one in the boot of your car, where it is subsequently found by the police, then you get done. Although, I dare say your brief might be allowed to argue in mitigation of sentence that you did not know it was there. The judge might argue that you ought to be more careful about your friends.

My informant claimed that strict liability did not apply to drugs, but I am not so sure. I remember the case of a middle aged lady who owned (but did not live in) a bedsit house in Oxford getting sent to prison because one of her tenants was found to be in possession of the dreaded marijuana. There was quite a fuss at the time, with the lady in question being entirely proper & decent, probably wore Harris Tweed, and I don't think that anyone thought that she knew about the marijuana. It was just that she was held to be responsible.

More tricky, what about the marijuana plant growing in your garden, the spontaneous growth from a spot of birdseed dropped by a passing parrot? I would of thought that legally you do indeed own the thing, even if you had not noticed that it was there and even if you had you would not have known what it was. Just brought it on for a bit of horticultural interest. I would hope that the police would use their discretion in such a matter; hardly the same as hydroponicking a thousand of the things under arc lights in your attic.

Moving onto heroin, someone at TB once explained to me that it was all down to what was called in the trade 'the Afghan razor rule'. According to this rule you were entirely free to grow the sort of poppies from which you can make heroin. They have handsome flowers and add a spot of useful colour to the suburban garden. But you are not free to make shallow incisions in the poppy heads with a razor as that counts as a conspiracy to manufacture a controlled substance, for which a lengthy term of imprisonment is available.

Moving onto softer ground still, there is the question of indecent pictures of children or of snuff movies. Where do you stand if you are an elderly male media person and some bright young spark thinks it would be a bit of a hoot to dump some dodgy pictures on your PC. Perhaps in the form of the sort of unsolicited email which gets filed by gmail into some trash bin. The thing is still there, it is still available to you, even if it is not actually on your PC and you don't actually know that it is there. Would that be any defence if some gold digger decided to have a pop at you? Perhaps a cousin of the bright young spark. Perhaps a gang from Romania.

Where do you stand if you are an elderly male recluse with a taste for drawing such images, rather than buying them. Drawing them without recourse to a live model, no actual people involved at all. Drawings which are kept under lock and key and which only come to light because someone with a grudge, or perhaps just for a bit of sport, makes some lurid complaint to the police. Drawings which might have been preserved by scanning them onto a hard disk on one's computer and which thus fall within the scope of rules about what one may or may not keep on one's computer.

All very tricky and I don't see how you are going to make good laws out of all this stuff. Perhaps we just have to trust the criminal justice system to be sensible - trust which is sometimes sadly misplaced. Think of the business at Bryn Estyn (my version of this story being that by Richard Webster (see 17th January 2009 in the other place), although a quick peek at Google suggests that there are plenty of others out there).

All this being triggered by pondering about the Madeleine business in the light of 'The Searchers' (see 25th September). Suppose a young person is kidnapped when under the age of (say) 3 years. Suppose further that the by then not so young person is found 6 years later, happily living in a new home, with new parents, parents who had bought her at the market, according to local custom. New parents who were perfectly decent people and had not dirtied their hands with the actual kidnapping. Suppose finally that it was clear to the professionals involved that more harm than good would be done by returning the child to his or her birth family. What is one to do?

Does the imperative of not letting kidnappers get away with it trump the imperative of doing what is best for the child? Perhaps we could settle for punishing the kidnappers while leaving the new parents alone? And treating the child in the same way as an adopted child who has a right to the truth when of an appropriate age.

Perhaps it is just as well that such a thing is reasonably unlikely in our part of the world, sufficiently unlikely that we do not need to work it all up in advance. I shudder to think of the mess that the media and political worlds would make of it all.

PS: now had a chance to consult my Archbold and I find some support for strict liability in the closing paragraph of 17-3 of the 1994 edition. It seems that strict liability does indeed exist but it is not liked and people prefer to convict when there is what the lawyers call 'mens rea', loosely translated as guilty mind. So not knowing is usually good support for not guilty.