R v Bowen
| Jurisdiction | Cayman Islands |
| Judge | (Sanderson, Ag. J.) |
| Judgment Date | 31 October 2007 |
| Court | Grand Court (Cayman Islands) |
| Date | 31 October 2007 |
(Sanderson, Ag. J.)
T. Ward, Crown Counsel, for the Crown;
C. Allen for the defendant.
(1) B (a minor) v. D.P.P., [2000] 2 A.C. 428; [2000] 1 All E.R. 833, referred to.
(2) Brend v. WoodUNK(1946), 62 T.L.R. 462, referred to.
(3) Gammon (Hong Kong) Ltd. v. Att.-Gen. (Hong Kong), [1985] A.C. 1; [1984] 2 All E.R. 503, dicta of Lord Scarman applied.
(4) Lim Chin Aik v. R., [1963] A.C. 160; [1963] 1 All E.R. 223; (1962), 106 Sol. Jo. 1028, dicta of Lord Evershed applied.
(5) Sherras v. De Rutzen, [1895] 1 Q.B. 918, referred to.
(6) Sweet v. Parsley, [1970] A.C. 132; [1969] 1 All E.R. 347; (1969), 53 Cr. App. R. 221, dicta of Lord Diplock applied.
Health Insurance Law 1997 (Law 15 of 1997), s.3: The relevant terms of this section are set out at para. 2.
s.7: The relevant terms of this section are set out at para. 2.
Criminal Law-strict liability-presumption against strict liability-presumption displaced if necessary implication of statute dealing with issue of social concern (e.g. requirement that employers provide health insurance for employees) and strict liability effectively promotes aims of legislation
The defendants were charged with failing to provide health insurance cover for an employee.
The employee alleged that the defendants had failed to take out health insurance for him but had nevertheless deducted the premiums from his salary and kept them, instead of remitting them to the insurer. During the trial, the court was asked to determine whether the offences of failing to maintain health insurance for an employee and making unauthorized deductions from his wages, contrary to the Health Insurance Law 1997, ss. 3(2) and 7, were offences of strict liability.
The Crown submitted that (a) the legislature intended that strict liability should be imposed, notwithstanding the lack of clear statutory language, since the Law concerned the regulation of a matter of public welfare; and (b) strict liability was the most effective way to ensure employers fulfilled their obligations.
The respondents submitted in reply that (a) mens rea was an essential
ingredient of every offence, and had the legislature intended to create strict liability offences, it would have been clearly stated in the Law; and (b) if strict liability were imposed, some individuals whose conduct could not, in any way, affect compliance with the Law would be at risk of prosecution.
Held:
The Health Insurance Law 1997, ss. 3(2) and 7 created strict liability offences. There was a presumption of law that mens rea had to be shown before a defendant could be convicted under either s.3(2) or s.7. However, such a presumption could be displaced by the necessary implication of the statute itself, if it dealt with an issue of social concern and if it could be shown that strict liability would effectively promote the objects of the statute. Health insurance was clearly an issue of social concern since it was vital for employees and their families that employers provide them with health insurance, and the problem of their failing to do so was a serious one and all too common in the Islands. Employers also had to be accountable for ensuring that only the proper deductions were made from their employees” wages. Furthermore, the imposition of strict liability was the most effective way to ensure that employers provided basic health insurance, and would only impact on those primarily responsible for compliance with the Law (para. 12; paras. 15–17).
1 SANDERSON, Ag. J.: The legal issues for determination are whether ss. 3(2) and 7 of the Health Insurance Law 1997 (as amended) create absolute liability offences. At the conclusion of the trial, I ruled that those sections were absolute liability offences and instructed the jury accordingly. I told counsel that I would provide written reasons.
2 Section 3(1) and (2) provides:
‘(1) Every person resident in the Islands shall unless-
(a) he is...
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Bowen (G) v R
...terminated for non-payment of premiums at the time in question. The Grand Court (Sanderson, Ag. J.) ruled (in proceedings reported at 2007 CILR 390) that these were offences of strict or absolute liability, not requiring mens rea. It recognized that although there was a presumption of mens ......