Law and Society - fault Flashcards
The meaning of fault
Some form of wrongdoing. A term used to describe the idea of blameworthiness; usually ensures the person at fault has legal responsability. Sometimes a person can be at fault even if the offence or action carried out is termed no fault.
The meaning of fault - criminal law
There is a general presumption that liability is based on fault. A person should be held liable for a criminal offence if they are, to some extent, blameworthy or at fault. This underpins the concept of mens rea as it is what is in a person’s mind that distinguishes between an accident and a criminal offence. The general rule is that actus reus must be voluntary, however fault can also emit from where d was under a duty to do something, but omitted doing it.
The meaning of fault - criminal law - cases
Hill v Baxter - voluntary AR
Dytham, Stone and Dobinson, Pittwood, Miller - ommision
The meaning of fault - criminal law - causation
Causation in both criminal and civil cases also illustrate the way in which fault is seen as a basic constitute of the law. The law treats the concept of fault in a manner that may not appeal to all members of society. This is rectified by the possibility of guilt of other offences such as attempted murder or administrating a noxious thing under s.23 of the OAPA. The choice of offence means that the law can ensure the best chance of conviction where a person is considered to be at fault criminally.
The meaning of fault - criminal law - causation - case
White - d was not held guilty of killing his mother, however many believed he should have been held guilty for something.
The meaning of fault - criminal law - defences
The avaliability of a defence recognises that the d may have committed the AR with the appropiate MR, however, they are still not at fault (insanity, self-defence). Similarly, the partial defences to a charge of murder show that the law recognises that not all killings are equally blameworthy and the level of fault percieved may result in a conviction for a lesser offence. Society accepts this and puts pressure on the law to reflect concerns on the way in which the law operates, eg: violence against women, especially in the domestic setting. The difficulty is that law lags in this area if only its enforcement.
The meaning of fault - criminal law - defences - case
Ahluwalia
The meaning of fault - criminal law - strict liability
While it can be argued that strict liability offences are not truly criminal, the AR still has an element of fault - in the sense that someone has responsability for the event that has occured. Society views this as important for the safety and security of all members of society including the person responsible, and again demonstrates that fault is an essential part of criminal law.
The meaning of fault - criminal law - sentencing
Conviction results in a sentencing, regardless of offence. S.143(1) of the Criminal Justice Act 2003 provides: ‘In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm… was intended to cause or might have foreseeably been caused’.
The meaning of fault - criminal law - sentencing - case
R v Clarke - in terms of sentencing, there is a ‘limited degree of mercy’, to be shown on the account of d’s age and likelihood of reoffending. However, culpability must be taken into account. Age must be balanced to the gravity of the offending.
The importance of fault - criminal law - culpability
Culpability = fault or blameworthiness and so reflects the essential nature if fault in criminal law. A note to paragraph 1.7 of the Sentencing Council’s Guidelines states: ‘there are offences where liability is strict and no culpability needs to be proved for the purposes of a… conviction, but the degree of culpability is still important when deciding sentence. The extent to which recklessness, knowledge or negligence are involved in a particular offence will vary.’
The importance of fault - criminal law - culpability - case
R v Clarke - culpability must be taken into account. Age must be balanced to the gravity of the offending.
