A. P. Simester - Appraising Strict Liability

English criminal law uses forms of liability that may fairly be termed strict in large numbers: quite possibly there are more offences imposing strict liability than requiring fault, and more offences of this kind than in most other European countries. Yet the moral objections to holding people liable to conviction of a criminal offence when fault has not been proved against them run deep and are well known. Can the approach of English criminal law be justified? In this volume the complexity of that question is laid bare. There are questions of definition, of fundamental moral and political principle, of human rights, of the implications of the presumption of innocence, of the need for this kind of offence (as compared with neighbouring countries), and many others. Some of the authors are persuaded of the justification for certain forms of strict liability in particular types of situation, but most of them argue against. This is a volume that is rich in the texture of its reasoning, and draws together an array of leading scholars, mostly in the Anglo-American tradition, to light up this rather neglected but nonetheless hugely significant area of contemporary criminal law. If there is cause for pessimism about the prospects for a major change in the direction of English law in this respect, that would take nothing away from the searching examination of the issues in these ten scholarly essays.

Andrew Ashworth (p.vi)

By April 1949, the Nationalists were losing. Maos forces had reached the Yangtze River and were advancing upon Nanking. Their successes meant that the movement of neutral shipping was now under threat. In order to protect British interests, including the embassy at Nanking, the Royal Navy frigate Amethyst was ordered to sail for the Nationalist capital.

The Amethyst proceeded up the Yangtze on 19 April, navigated by Peter Berger (as he was then). But on 20 April, sixty miles from Nanking, she was crippled in a devastating attack. Shells hit gunnery control, the wheelhouse, andtwicethe bridge. Many, including the captain, were killed. The steering jammed and the ship ran aground. Berger himself suffered severe wounds to the chest, arm, and leg. But, in what became known as the Yangtze Incident, Berger organized sailors to defend the ship while he destroyed its cipher machine and code books. Dosing himself on morphine, he and the First Lieutenant managed to get the Amethyst refloated and away from the Communist batteries. The Amethyst was saved: and Berger had a DSC.

One may safely conclude that Vice-Admiral Sir Peter Berger, KCB, LVO, DSC was a man of considerable courage, with no pressing desire for the life of the armchair. After retiring from the Royal Navy in 1981, Berger was appointed Bursar of Selwyn College in Cambridge, an office he held with distinction for a further ten years. Yet his retirement, when it came, was two years early.

Why? Sir Peter had discovered that, as the law stands concerning food hygiene and health and safety, the College (and possibly its officers) were almost certain to be convicted if anything went wrong in the College or its kitchens, and this was so irrespective whether anyone was actually at fault: it all turned, in effect, on whether the inspectors would exercise their discretion to prosecute. He said to his friends that, as an honourable man, he viewed being prosecuted and convicted for a criminal offence as something seriousand did not wish to be in the position where he might incur a conviction in respect of something for which he was not at fault.