Fault: Criminal Law Flashcards
Criminal law
There is a general 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 that the D had the required AR and MR for the specific offence
The AR is the physical part of the offence but without he MR it doesn’t oppose liability except for strict liability offences .The MR can be seen as the main fault element of the offence
1) MR
The criminal law imposes liability for different levels of MR. The law may make the D guilty for being negligent, reckless, or having specific intention.
A) A specific intention, the highest level of fault in criminal law is where the D has specific intention, the exact Intention Aries according to the type of offence e.g. Murder is an Intention to kill or cause GBJ
B) recklessness involves fault in the sense that the D has realised that there is a risk of the consequence occurring but the D has decided to take that risk. This level is sufficient to convict a person for an offence e.g. under s47 OAPA
3) Negligence
The test for negligence is based on what the reasonable man would foresee. The D must owe C a DOC and Breaches it by falling below the standard of care required of the reasonable man. In criminal law Gross Negligence can be the basis of fault for involuntary manslaughter this is a higher level of fault than just negligence.(Bateman
4) criticism of specific intent
D may be guilty of murder even if the intent was only to inflict GBH(Vickers and Cunningham) this is a lower level of fault than intention to kill but has the same coincidence a life sentence
5) Criticism
Offences under 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
6) criticism
AR
The AR for an offence Must be voluntary. The D must be in control of his actions.
An involuntary act will not suffice (Hills v Baxter) as the D has no control over his action. He will 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 severe punishment. However liability can be imposed where the D emits or fails to do something where a duty is imposed (Pitwood) generally a failure in these omission cases will be punished less severely than those in which a positive voluntary act has been committed
3) Causation
The D must have caused the consequence if not he will not be liable.(Pagett, white)
Where the chain of causation is broken the D will not be at fault (smith, Cheshire, Jordan)
In this way causation maintains the link between fault and liability.
Criticism: thin skull rule - needs to be aware of ore existing conditions and will still be liable even if he is not at fault
4) defences
The availability of defences recognises that the D 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 due to his disease of the mind.
5) partial defences
Conviction for murder requires proof of intention to kill or cause GBH, however there are degrees of culpability and these are reflected in the availability of special/ partial defences for murder that if successful reduce the conviction to that of voluntary manslaughter.
LSC- person kills due to loss of control
Explain it then say how it works
DR-person kills due to abnormality of mental functioning
Explain it and how it works
Sentencing
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 of the D. E.g. Section 18 and 20 have the same AR but the sentence may change on the different MR.
Aggravating and mitigating 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. A 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. Where there is a greater degree of fault will be higher.
Liability not depending on fault
Strict liability:
These offences require no Men’s Rea
Liability is then imposed without the need to prove fault on the part of the D however these offences are not completely without fault this is because the D is still at fault as he committed the AR.
These strict liability offences tend to be regulatory tend to be dealing with matters of social concerns such as:
Food hygiene (smedleys v breed)
Pollution of the environment (alphacell v Woodward)
Selling lottery tickets to underage (harrow lbc v shah)
However the cases that are truly criminal, require an MR (sweet v parsley)
Strict liability offences are justified as generally a business will be prosecuted, the effect of them is to raise standards and the punishment are generally relatively minor usually there will be no defence to these type of offences. This may be regarded as unfair especially if every precaution has been taken to avoid committing the offence.
Absolute liability offences
Generally the actus Reus committed must be voluntary however where there is absolute liability this requirement is waived and D can be convicted even though his act was not voluntary and had no control over his conduct and to some degree was not at fault.
Larsonneur- the CA he’s that she had been rightly convicted even though she had been brought into the country by force and the AR was involuntary.
Winzar v Chief Constable of Kent- D was drunk and was escorted out of the hotel and then arrested him for being drunk on the highway and the AR was involuntary
Some have argued that larsonneur gave insufficient weight as to whether she would be allowed entry into Ireland and it could be argued that this showed some fault on her part.
Similarly Winzar was reckless by becoming drunk thereby exposing himself to the risk of committing criminal offences again it could be said that he was at fault for getting drunk
Should liability depend on fault (1) public interest
Arguments in support of liability not based on fault:
1) public interest
It’s in the publics Interest to have liability based on fault
The law seeks to protect and promote a wider interest of the public and sometimes these are given priority of the requirement for fault in individual offenders.
Many strict liability offences concern the running of business’- in Smedleys v Breed the producers of tinned vegetables were liable for the presence of a caterpillar in a tin of peas.
It can be said that the reason for these decisions is the protection of public. Especially vulnerable members. This reasoning can also be applied to the case of Harrow LBC v Shah. In the case of Smedley the focus is on the consumers but in the case of Shah it’s for the Kids.
Serious criminal offences require not only MR but also prove beyond reasonable doubt. In this way interests of the defendant are protected. However the imposition of strict liability for less serious crimes may be justified on the ground that the public interest weighs heavily in the scales of justice. The public has interest, for example, in road safety, maintaining reasonable standards of hygiene, protecting children from dangers associated with smoking and gambling. It is argued that these public interests are better served by restricting liability to questions of fact which are relatively straight forward to prove and avoiding questions to do with what the D was thinking.
Additionally, no fault offences tend to attract less serious penalties, offences such as polluting the environment (alphacell v Woodward), and producing contaminated food ( Smedleys) are more likely to lead to a fine than a custodial sentence. the guidelines set out my lord Scarman in Gammon V AG Hong Kong also point outs that the presumption in favour of the need of MR is particularly strong in truly criminal offences, where the D is liable to be given a custodial sentence (as seen in Sweet v parsley). Strict liability makes it far less likely that an innocent victim will be left without a remedy in the courts. Supporters of no fault liability argue that to leave a victim without a remedy is a greater injustice than to penalise a blameless defendant. For example in (Limpus) the London general omnibus co it is preferable to provide a remedy to the innocent than to allow the equally innocent employer to escape liability for the wrong doing of his employee.
For many strict liability offences e.g. Speeding, it would be almost impossible to prove a mental element in order to secure a conviction. No fault liability clearly overcomes this problems where the claimant doesn’t have to prove fault the outcome of a claim is more predictable and this in turn encourages defendants to admit their responsibility there by saving court time and cost, and these are significant advantages.
Should liability depend on fault
2) individual responsibility
There is a biblical principle that “ we reap what we sow”. No fault liability promotes this principle in criminal and civil law.
Strict liability in criminal law holds individuals or business responsible for the harm they cause even where they aren’t aware of it.
Howells- the D failed to obtain a certificate for his firearm- he didn’t believe he needed to as he thought it was an antique- however it was his responsibility to make sure he complied with regulations his failure to do so made him guilty.his belief was irrelevant.
Civil law also provides evidence for the principle. In the (Rose v Plenty) a milkman allowed a 13 boy to assist him with his round even though this was expressly forbidden by his employer. When the child was injured due to the milkmans negligence, the employer was liable. He bore responsibility for the conduct of his employees even if the employee was acting against orders.
Should liability depend on fault
3) deterrence
No fault liability encourages higher standards of care amongst business men and property owners for example in the case of (Harrow LBC v Shah) shopkeepers as a result would then take greater care when selling age limited products in the future. Students working in shops and supermarkets are no doubt aware of the greater vigilance being shown in selling a variety of age limited products.
In Gammon v AG for Hong Kong the D’s were held responsible for the collapse of part of a building even though they were unaware that their plans were not being followed by the builders. Lord scarman argued that strict liability would serve as a deterrent.
Should liability be based on fault
Yeah
Argument in support
There are two broad lines of reasoning adopted by supporters are fault based liability.
Firstly they deny it better protects the public and that its deterrent value helps to raise standards.
Secondly they argue that it is inherently unjust to impose liability without establishing fault On part of the D.
Liability should be dependent on law
Rejections of claims for no fault liability
First of all, it is not true to say that strict liability in criminal law is restricted to the offences that attract fines rather than custodial sentences.
In Howells the D was convicted under S1 of the firearms act 1968 which carries a maximum penalty of five years imprisonment
Many driving offences carry points aswell as fines and if sufficient have been placed on the driver then it will lead to disqualification.
Secondly, no fault liability cannot be justified merely to provide a way to compensate innocent victims. If priority should be given to ensure that all victims of crime and tort are compensated then it would be fairer and more efficient to introduce either wider insurance scheme or non government sponsored compensation system. Victims could then be compensated according to their needs According to their ability to prove their claim.
If the difficulty in establishing MR Is the main argument in favour of no fault liability then an extension of the Res ipsa loquitur or a reversal in the BOP could serve as an alternative to the imposition of strict liability: there’s no need to convict defendants manly on the basis of their actions.
Finally, there is little evidence to suggest that no fault liability encourages the adoption of higher standards: how can shop keepers or businesses prepare against unforeseeable outcomes. In the (Callaugh v Tillstone)- a butcher had some meat inspected by a vet to ensure that it was fit for human consumption.unfortunately, the vet negligence and passed the meat even though it was unfit for humans. However it was the butcher that was convicted not the vet, for selling the meat.
Support of liability based on fault
Justice
The view that individuals and businesses may be held responsible for the unforeseeable consequences of their conduct conflicts with our sense of justice and fairness. In criminal law it seems morally offensive to punish a person who is blameless and in civil law it seems wrong to impose liability upon a person who has taken all reasonable care to prevent an undesired outcome. This is because the notion of fault is central to people’s idea of justice and fairness.
The conviction of blameless fosters a sense of grievous within the offender and promotes a wide spread lack of confidence in the fairness of the criminal justice system. The law enforces Societies rules and values and it reflects badly upon the values of a free society that people may be punished when they are morally guiltless. (Winzar)
A conviction has lasting consequences not only does the offender under the immediate sanction imposed by the court but he does suffer society’s condemnation as seen in Sweet v parsley
A criminal record might act as a barrier to employment, tarnish Ds reputation, and expose him to suspicion and prejudice. Such consequences should not have to be endured by the blameless finally one of the functions of the law is to serve as a guide to behaviour in enabling people to amend their conduct to comply with societies. No fault liability does not allow for this, a D who has not been malicious, e.g. Negligence, or even careless however cannot avoid re offending no matter how much care or thought he applies(stork wain)
