justice, fault and harm Flashcards
justice
described as fairness or equality as pointed out in ‘de la justice’
definition is illusive due to subjective nature
natural justice
substantive justice
utilitarianism
natural justice
Natural justice is often summarised as ensuring the judge is impartial and seen to be so, and that both sides are allowed a fair opportunity to have their side heard. This is illustrated by the Pinochet case, during which, a judge that was linked with Amnesty International had initially been allowed to take part in the hearing but had to be removed due to a perception he would be biased against the defendant. Since it is important the procedure was seen as fair. This is also affected by access to justice which is in turn directly affected by the legal aid system. These issues form the core of what is called procedural justice.
substantive justice
There is also substantive justice – i.e. that the legal rules are themselves just. One area this may not be seen is in the mandatory life sentence for murder. Arguably the punishment is proportionate in that one life is taken in exchange for the loss of another. However, it fails to differentiate between mercy killing and serial killers as in cases such as R v Cocker.
utilitarianism
Utilitarianism was developed by Mill. The theory is split into act and rule utilitarianism. Rule utilitarianism suggests that a rule will be just if the result of everyone following it is the greatest happiness for the greatest number. This can be seen in freedom of speech, which may upset individuals or groups, but overall the freedom of expression is a benefit to people in society; to punishment of offenders where the deterrent effect of a harsh sentence my justify the unhappiness caused to the person who is convicted. This can be seen in strict liability cases such as Callow v Tillstone or Shah v Harrow LBC which are seen to protect the population despite a potential lack of fault by the defendant.
fault
Fault is the level of moral blameworthiness of the Defendant (D) and can be seen as the basis of criminal liability. Because the role of criminal law is to uphold the values of society, the more at fault you are the more serious your crime and punishment are likely to be.
fault linked to MR
Fault is often seen as linking to the Mens Rea (MR), since this is what differentiates and “innocent mistake” from a crime and a minor crime from a more serious crime. There are three different levels of MR, direct intent, which is the most blameworthy since the D meant to try and achieve the criminal outcome, down to recklessness which only requires foresight of possible harm i.e. Running a risk. The difference can be seen in GBH. S.20 only requires recklessness as to some harm, leading to a maximum 5 yrs in prison. S.18, intent to cause serious harm, has a maximum of life despite the same level of harm.
fault linked with strict liability
On the other hand, around half of all criminal offences are strict liability. This means that there is no MR for all or part of the offence. As a result the D can be seen to lack fault. Never-the-less they would still be liable as a result of the potential harm their acts may cause society (Callow v Tillstone)
harm
Harm is the physical or mental damage caused by a defendant to a victim. It can be considered as the basis criminal liability since the more serious the harm you cause, the more serious the offence you are likely to be charged with and the more serious the sentence is likely to be. However, if there is no fault it is unlikely that an action will be deemed criminal as it will lack any MR or negligence.
harm linked with AR
It is often argued that the harm is found in the Actus Reus of the crime. This is because most serious crimes are result based. This means the actions will only be criminalised if the cause harm. For example, the difference between battery and ABH is only the level of harm caused to the victim, no harm would be Battery but some minor harm would be ABH. This changes the offence from a summary offence to an either way offence, with a maximum sentence of 5 years rather than six months. This is despite the fault (as seen in the MR) being the same. However, this is not consistent throughout all criminal offences, for example, whilst s.20 GBH is more serious than ABH, this is not seen in the way it is labelled (both are either way offences) or sentenced, since both have a statutory maximum of 5 years.
harm linked with fault
The importance of fault as opposed to harm can be seen in s.20 and s.18 as a result of the change in MR from intent or recklessness as to cause minor harm, up to intent to cause serious harm, the maximum sentence rises from 5yrs to life, despite the harm caused being exactly the same.
Therefore liability in criminal law can be said to be a mix of fault and harm.
