fault

Question 1

Definition of fault

Answer 1

• fault generally implies, a sense of blameworthiness or responsibility for one’s wrongdoing
• in this sense it also refers to the mental state of the defendant
• the basic principle is that a defendant should be able to contemplate harm that his action may cause, and should therefore aim to avoid such actions
• fault is an essential element of quite diverse elements of law

Question 2

A. liability depending on fault

CRIMINAL LAW

Answer 2

• in criminal law, there is a general liability presumption that liability is based upon fault
• this is consistent with our sense of justice: a person should not be held liable for a criminal offence unless he is to some extent blameworthy, or at fault
• in order to be guilty of an offence the prosecution has to prove the required AR and MR for that offence
• if the AR is present, but without the MR ot does not impose liability except for offences of strict liability
• so the mens rea can be seen as the main fault element of the offence.

Question 3

Liability depending on fault
criminal law

1. MENS REA

Answer 3

• the criminal law imposes liability for different levels of mens rea
• the law may make the defendant guilty for being negligent, or reckless, or having specific intention to do or cause something

Question 4

Liability depending on fault
criminal law

SPECIFIC INTENTION

Answer 4

• the highest level of fault in criminal law is where the defendant has specific intention
• the exact intention varies according to the type of offence. E.G. murder is the intention to kill or cause GBH

Question 5

Liability depending on fault
criminal law

RECKLESSNESS

Answer 5

• recklessness involves fault in the sense that the defendant has realised that there is a risk of the consequence occurring but has decided to take that risk
• this level is sufficient to convict a person for an offence under s47 or s20 OAPA 1861

Question 6

Liability depending on fault
criminal law

NEGLIGENCE

Answer 6

• the test for negligence is based on what the reasonable man would foresee
• the defendant must owe the claimant a duty of care which must then have been breached. must of breached that duty by falling below the standard of care appropriate to the specific duty
• in criminal law, gross negligence can be the basis of fault for involuntary manslaughter
• gross negligence is a higher level of fault than just manslaughter. (BATEMAN 1925)

Question 7

Liability depending on fault
criminal law
criticisms

MENS REA

Answer 7

• d may be guilty of murder even if the intent is to cause grievous bodily harm (smith, Vickers and Cunningham)
• this is a lower level of fault than intention to kill, but has the same consequence: life sentence
• the offences of s47 and s20 have a different level of MR, (fault) which does not match the AR. d only needs to intend or see the risk of an assault or battery to be guilty of ABH
• similarly, d only needs to intend or see the risk of ABH to be guilty of GBH under s20
• in the case of G and R the house of lords recognised that the injustice of such a low level of fault (objective recklessness) leading to criminal liability, changed the law reinstating the test of subjective recklessness
• gross negligence seems to be a lower level of fault of such a serious crime that manslaughter warrants
• the offence of UAM only requires MR for the unlawful act and not for the death. so d may be liable for manslaughter where there was only MR for a miner crime like criminal damage.

Question 8

Criticisms

2. ACTUS REUS

Answer 8

• the AR of the offence must be voluntary, the d must be in control of his actions
• an involuntary act will not suffice (hill v Baxter) this is because d has no control of his conduct, he would not be regarded as being at fault so there would be no liability
• a positive voluntary act is generally recognised as having the greatest fault, as it was under the control of the d, and carries the most serve punishment
• however, liability can be imposed where the defendant omits, or fails, to do something - especially where a duty is imposed. (pittwood)
• generally a failure, such as in these cases, will be punished less severely than where a positive voluntary action has been committed

Question 9

Liability depending on fault
criminal law

3. CAUSATION

Answer 9

• the d must have caused the consequence, if not he will not be liable, (pagett and white)
• where the chain of causation is broken, the d will not be at fault, (Jordan and smith)
• in this way causation maintains the link between fault and liability E.G. thin skull rule

Question 10

Liability depending on fault
criminal law

4. DEFENCES

Answer 10

• the availability of defences recognises that the defendant may have committed the AR of an offence, with the appropriate MR; but still not be at fault or blameworthy
• E.G. using the defence of insanity the d will not be guilty as he cannot form the MR die to the disease of the mind

Question 11

Liability depending on fault
criminal law

5. PARTIAL DEFENCES

Answer 11

• conviction for murder requires proof of intention to kill or commit GBH
• however, there are degrees of culpability, and these are reflected in the availability of special defences for murder, that if successful, will reduce a conviction to voluntary manslaughter

Question 12

Liability depending on fault
criminal law

6. SENTENCING

Answer 12

• in most cases, judges are able to impose a sentence up to the maximum allowed by the law - that fairly reflects the fault of the defendant E.G. s20+s18
• aggravating and mitigating factors reflect the different levels of the fault of the d. the sentence will then reflect this.
• sometimes however, judges are obliged to pass a particular sentence E.G. mandatory life sentence for murder
• however, even here where the judge has no discretion in the sentence imposed the tariff system recognises degrees of fault. so where there is a greater degree of fault the recommended term will be higher

Question 13

B. liability not depending on fault

1. STRICT LIABILITY

Answer 13

• these offences require no mens rea, liability is therefore imposed without the need prove fault on the part of the d
• however these offences are not completely without fault because the d is still at fault as he committed the AR
• these strict liability offences tend to be regulatory dealing with matter of social concern. such as food hygiene (smeadly v breed) pollution of the environment (alphacell v Woodward) selling alcohol, lottery tickets to underage children (harrow v shah)
  in cases that are truly criminal however, mens rea is needed (sweet v parsley)
• strict liability offences are justified as generally a business will be prosecuted, the affect of them is to raise standards, and the punishment are generally relatively minor
• usually there will be no defence to these types of offences. this may be regarded as unfair especially if every precaution is taken to avoid committing the offence

Question 14

Liability not depending on fault

2. ABSOLUTE LAIBILITY OFFENCES

Answer 14

• generally the AR committed must be voluntary however, where there is absolute liability this requirement is waved: the defendant may be convicted even though he had no control over his conduct, and to some degree was not at fault (larsonneur 1933) (winzar v chief constable of Kent)
• it has been argued that larsonneur gave insufficient weight to whether she should be allowed entry into Ireland and it could be argued that this should have some fault on her behalf
• similarly, winzar was reckless in becoming drunk there by exposing himself to the risk of committing criminal culture offence, again could be at fault for being drunk