Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Friday, 10 February 2012

On strict liability

The two year ban imposed on cyclist Alberto Contador for doping might at first glance appear to have little to do with the criminal law, but if we look a bit more closely we can see that it throw light on some important issues in criminal law theory.

Alberto Contador
For those who have not been following the case, the basic facts are these. In the course of the 2010 Tour de France Contador was subjected to a routine drug test. After he had won the Tour, it was revealed that traces of the banned anabolic agent clenbuterol had been found in his urine sample. Contador blamed the presence of the clenbuterol of contaminated meat that he claimed had been brought to him by a friend from Spain (where the drug is apparently used as a growth agent by cattle farmers). The case dragged on for a substantial period of time, during which Contador continued to race successfully, before the ban was finally imposed by the Court of Arbitration for Sport earlier this week, additionally stripping Contador of his 2010 Tour victory (as well as other victories achieved since the positive test).

The facts in this case, as in many similar doping cases, are unclear. Who was the mysterious friend who gave Contador the meat? Why did Contador eat it when it had not been cleared by his team doctors, knowing the stringent standads imposed on professional athletes? And how else might the drug have got into his system given that he was subjected to a rigorous year round programme of drug testing? No 'smoking gun' was ever produced to show that the doping was deliberate, but the cyclist has nonetheless been stripped of his titles, will miss the Tour and Giro d'Italia this year, will lose many other benefits such as lucrative sponsorship deals, and may never escape the shadow of being seen as a drug cheat as past (and future) achievements are tainted by suspicion.

A specialised activity?
Leaving the factual issues aside the question here is whether this form of strict liability can ever be justified. In criminal law there are many who claim that it is not justified, because it leads to punishment of individuals where they may have been in no position to prevent or avoid the occurrence of the harm, and that this offends againt the presumption of innocence. By contrast, those who defend strict liability suggest that it can be justified given the severity of potential harms (in cases say of pollution or food safety); that it is targeted at those, such a companies or food producers, who are in a position to prevent the harm occurring by establishing proper precautions; and that it is better that the structure of proof places the burden on those who know to prove that they tried to avoid the harm. And in response to this it is now increasingly common for statutes also to provide a 'due diligence' defence: the the accused is given opportunity to show that they took all possible precautions to prevent the harm which occurred.

And so to cycling. Here we see the same sort of arguments being lined up: that professional athleteswho derive enormous financial benefits from sport should have to prove that they are clean; that this burden of proof is justified because doping technology moves so fast that the enforcers cannot keep up with all the latest innovations; and that the public benefit of a clean sport (and healthy participants) outweighs the potential burdens on athletes. This though is not uncontroversial, especially in a case like Contador's where while no criminal penalties are imposed the ruling is clearly penal in effect.

So is strict liability justified, either in sport or in criminal law more generally? For me the key argument here is the question of who is subject to these regulations. In professional sport athletes have to sign up to the regime, and are made aware of the hazards and penalties of non-conformity. It is like a contract - you sign up to the conditions to play the game, and this presumed awareness is then used  to justify the strict liability. This same may be true in may areas where strict liability is used in the criminal law. If you produce food, or engage in a manufacturing process involving environmentally hazardous material, or sell alcohol, you would normally hvae to undergo some sort of licensing procedure which, amongst other things, should make you aware of the risks and burdens involved in that activity. The penalty for breach then, while criminal in nature, is of a slightly different nature to penalties for breach of criminal rules of general application. By analogy with professional sport trict liability may be justified under these conditions, because of the specialised nature of the activity and the 'licensing' involved, where its more general use in the criminal law may continue to be unjustified.

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