Law and Fault Flashcards
What do you do in the introduction?
Explain the meaning of Fault
What is fault defined as?
The Oxford English Dictionary defines fault as ‘something wrongly done’, ‘mistake’, and ‘culpability’. Fault is a legal and moral term used to describe a person’s blameworthiness or the person committing the offence.
What does the Oxford English Dictionary define fault as?
‘something wrongly done’, ‘mistake’, and ‘culpability’.
Fault is a legal and moral term used to describe…
a person’s blameworthiness or the person committing the offence.
What UK has a legal system based on what?
Fault, and in English law a person’s liability is generally dependent upon their degree of fault.
What is a person’s liability in English law dependent on?
their degree of fault
How is a person’s liability declared in criminal law?
People are guilty, being to blame beyond reasonable doubt.
THEN GIVE EXAMPLES, one from actual case but then give your own examples with law and theory
Example of a person being blamed beyond reasonable doubt (omission)
Gibbins v Proctor
The V father and partner starved the 7 year old to death so they are guilty and to blame for her death beyond unreasonable doubt
What is fault a marker of?
FAULT is a marker of blame which imposes responsibility and therefore justifies the imposition of penalties or sanctions and identifies the person who should be punished.
Since fault imposes responsibility, what does it justify?
the imposition of penalties or sanctions and identifies the person who should be punished.
What is criminal based of mainly, as a principle?
Criminal law is mainly based on the principle of fault so a defendant will only be punished if it is proved beyond all reasonable doubt that they are to blame.
GIVE EXAMPLES:
eg rule of causation, mens rea for murder etc
What is fault based on the notion of?
Individual responsibility – those who chose to behave in the way they do are responsible for the consequences.
What does it mean to have individual responsibility?
those who chose to behave in the way they do are responsible for the consequences.
Arguments against the law being based on fault
It is argued that no-fault liability is essential to protect the public interest; which sometimes takes priority over interests of the individual. This is clearly seen with strict liability offences; they deal with matters of social concern. Also, court time is saved and costs are reduced when there is no need to prove mens rea; serious criminal offences will require mens rea. No-fault offences tend to attract less serious penalties, e.g., fines.
Further, individuals must be held responsible for the consequences of their actions and the harm they cause. Strict liability holds individuals or businesses responsible for the harm they cause even where they are unaware of it.
Finally, no-fault liability has a deterrent effect; it encourages businesses and property owners to exercise greater attentiveness and so encourage higher standards of care.
What is no fault liability essential for?
to protect the public interest; which sometimes takes priority over interests of the individual.
What is an example where unreasonable doubt of fault is NOT seen and why?
Strict liability offences; they deal with matters of social concern.
What is a financial drawback of law being based on fault?
Having to prove mens rea increases court time and costs
What is a drawback of law being based on fault?
Even though someone may not be aware of the harm they caused, they should still be held responsible for it.
What effect does no fault liability produce?
A deterrent effect because it encourages businesses to be more attentive and have greater higher standards of care which leads to employers have better working standards and conditions.
Arguments for the law being based on fault:
Those in favour of fault liability argue no-fault liability does not better protect the public and, standards are not raised through the deterrent value. There is little evidence to suggest that no-fault liability encourages higher standards as businesses can’t prepare against unforeseen outcomes. Instead of protecting the public, it serves injustice to the one being prosecuted because they aren’t held accountable to the correct standards in accordance to the degree of fault they are at.
Arguably, it is inherently unjust to impose liability without establishing fault on the part of the defendant. It is unfair to hold anyone responsible for unforeseeable consequences of their conduct and unfair to impose liability upon a person who has taken all reasonable care to prevent an unwanted outcome. The conviction of blameless people undermines public confidence in the fairness of the criminal justice system.
Why is there little evidence to suggest that no-fault liability encourages higher standards in businesses?
Businesses can’t prepare against unforeseen outcomes.
Why is it injust to impose liability without establishing fault?
They aren’t held accountable to the correct standards in accordance to the degree of fault they are at.
It is unfair to hold someone accountable for unforeseeable consequences of their conduct and to impose liability on someone who took reasonable measures to prevent an unwanted outcome.
The conviction of blameless people causes the public to have less confidence in the fairness of the legal systems
Actus reus links , points
Omissions require fault eg Gibbins and Proctor
Causation is required to establish fault
AR must be committed voluntarily
Mens rea links, points
Direct intent (Mohan) shows a stronger degree of fault because it was the D’s aim and desire to reach that outcome
Subjective test - Some offences have an MR based on an objective test which goes against fault principles, for example UAM can be committed recklessly and the MR is objective (Church)
Strict liability links
Isn’t based on fault because these offences require no mens rea which is unfair and unjust, for example speeding.
However, it is based on regulatory offences, such as selling alcohol to underaged children (Harrow v Shah) and food hygiene (Smedleys Ltd v Breed) which is just as it protects the public.
Some offences have an MR based on an objective test which goes against fault principles, for example UAM can be committed recklessly and the MR is objective case
Church
selling alcohol to underaged children case
Harrow v Shah
food hygiene case
Smedleys Ltd v Breed
Murder links
Specific intent- to kill or cause serious injury- the degree of fault. Intention most serious MR so needs highest degree of fault
Mandatory sentence reflects fault- serious punishment of life imprisonment
Loss of control / Diminished Responsibility links
Defences to murder because D has less fault due to provocation which caused them to lose self control or impaired mental functioning which decreases their fault eg Battered wife syndrome- cases Ahluwalia
Strict rules apply to make sure that some one who is at fault and is blameworthy can still be guilty of murder- explain e.g. objective elements of the test, exclusion of Infedility alone
Conviction is for Manslaughter- so still reflects that D was at fault and carries some blame for the killing, however the sentence given will be less and reflect the fact that D is less blameworthy
Involuntary manslaughter links
Unlawful act requires less blameworthiness than murder but fault is still invovled, as D must have committed an unlawful act.
Risk of harm: There must have been an objective a risk of harm (Church)
Gross negligence: links
Duty of care and breach: D is clearly at fault because he has acted without care when he owed a duty to of care to V
Gross element: Fault is further emphasised to justify criminal prosecution by ensuring that it is beyond civil negligence and it is so bad it is criminally bad and deserves punishment- because it is so gross it goes beyond a matter of mere compensation- Adomako
Theft / Robbery links
2 types of MR required and emphasis on fault. Dishonesty and Intention. D will not be found guilty if one of these elements of the MR cannot be proved for example he has a genuine belief that the property belongs to him or the owner would consent under section 2 Theft Act.
Specific intent crime: D must intent to permanently deprive the owner of it- this is a high standard for the prosecution to prove and shows that the law on theft is heavily fault based.
Non- fatal offences links
The requirement of fault can be criticised in this area as being inconsistent as the mens rea for some crimes is not matched with the actus reus e.g. ABH –D need only be reckless as to an assault but is liable for up to 5 years.
Mens rea requirement: Non-fatal offences require a mens rea element, some require intent others mere reckless intent e.g. S.18 and s.20 GBH.
Intoxication links
The rules on intoxication have a fault basic rationale. The rules on intoxication from Majewski are very strict and it makes the defence very difficult to get. For example voluntary intoxication will not be a defence to a basic intent crime according to Majewski. This is reflecting the fact that the D carries some responsibility for getting intoxicated in the first place which is viewed as reckless.
Dutch courage: There are rules on Dutch courage- Gallagher. D cannot use the defence of Intox if they got intoxicated in order to have the courage to commit a crime. This reflects a fault basis as D is just as blameworthy as someone who commits the offence sober.
Self Defence links
The rules are quite lenient too in this area so a D may actually carry some responsibility for what happened but still get the defence e.g. pre- emptive strikes –Beckford
Self-defence when D is intoxicated- D will not get the defence - this reflects fairness and justice.
