• Used to describe  someone's responsibility for a mistake,  failure or wrongdoing suffice to merit criminal liability
  • Relates to person's culpability/blameworthiness
  • liability = based on culpability
  • D should not be responsible for actions that weren't his own fault
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Areas Where Liability is Based on Fault

  • Actus Reus
  • Causation
  • Omissions
  • Mens Rea
  • Defences
  • Liability
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Actus Reus - must be voluntary

  • Fault is seen in need to prove the AR
  • P required to prove D did guilty act
  • Guilty act must be voluntary
    • D has to be in control of his actions
  • Hill v Baxter - 'no act is punishable if done involuntarily', Lord Denning
  • D's act = involuntary -> not at fault -> not criminally liable
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AR - Causation

  • Most offences = P must prove D caused a paticular result
  • If D factually caused result (but for test - Pagett), this shows he is at fault + should be accountable
  • Legal causation must also be proved -> determines culpability and blameworthiness -> fault-based
    • If a novus actus interveniens that 'is so independent of D's act that it becomes insignificant' (Cheshire, Mellor) occurs, D not at fault
      • E.g. Jordan
  • Also seen through daftness test
    • Roberts - if 'V's acts are so daft and unexpected that no reasonable person could be expected to foresee it' -> novus actus interveniens 
      • D would not be to blame -> not be at fault
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  • usually cannot form basis of AR
  • Some situations do have a duty to act - criminally liable if omit from acting
  • [Omissions scenarios]
  • D can be guilty of offence for failing to act when they had a duty to -> at fault
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  • N/A to strict liability 
  • A guilty mind is required in crim law
  • Where law is silent, need for MR is presumed (Sweet v Parsely)
  • MR -> fault based
  • Direct intent (D's aim, purpose or desire to bring about a certain result - Mohan)
  • Oblique intent (D does not want the outcome but knows it's virtually certain - Nedrick,Woolin)
    • No distintion between these; direct + oblique = same amount of fault
  • Recklessness (Cunningham) less serious than intention - cannot be used for s18/murder
    • fault = hierachical
      • Offences w/only intention -> greater penalties
        • Someone intending a particular result -> more at fault
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  • D raising defence = him saying he is not at fault
  • Some deny AR. Some deny MR. Either way, law regognises D not to blame if successful
  • W/duress - cannot excuse murder but can be seen as a mitigating factor in sentencing
    • law recognises D acting under duress = less at fault than D killing out of free will
  • Partial defences (LoC, DR) - D not at fault to same extent as plain old murderer
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Civil Law Fault-Based Liability

  • Contract law, fault in liability seen in 'remoteness' of damage
    • Hadley v Baxendale - two part test for remoteness (based on foreseeability)
      • States: D will not be liable for losses that he could not have reasonably anticipated
        • Based on fault. If it was unreasonable for him to foresee C's loss, it's not his fault that C made that loss
  • If C fails to mitigate loss, damages awarded = reduced - Payzu v Saunders
    • under duty to mitigate loss
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Arguments favouring fault-based liability

  • If D has control over body -> actions = voluntary -> criminal liability should be imposed as D is at fault
  • Imposing liability in legal causation where a result was obviously not D's fault (e.g. Blaue) seems unjust
    • BUT reflects moral standards - law = reluctant to shift blame from D to third party
      • Especially for medical cases where aim is to help V (e.g. Cheshire)
      • Blaming V, medic/third party = cause moral outrage
      • Even if liability is imposed, the sentence could reflect D's level of blame
        • Sentencing guidelines means deciding whether people are more/less culpable
  • Corrective justice = the notion that liability resolves the injustice inflicted from one person onto another
    • In contract law, focusses on one party committing + other party suffering transactional injustice + damages paid are meant to rectify this
      • Damages are based on fault (already discussed) -> corrective justice linked to blameworthiness
  • Unfair w/SL offences
    • Callow v Tilstone - raising standards = conter productive - will be guilty anyway
    • Unfair to give anyone not blameworthy a penalty (Shah)
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What is no-fault liability?

SL offences 

  • SL not based n fault - no need for MR
    • Even taking steps to avoid committing offence can still be found guilty of it (Callow v Tillstone, Shah)
      • Cases that took reasonable care but still found guilty -> liability not based on D's fault

Absolute liability

  • goes further - no need for AR to be voluntary
    • R v Larsonneur - D deported from Ireland to England, then charged w/being illegal alien
      • Did not act voluntarily, so no fault, but still liable

Thin Skull Rule

  • Arguably D not at fault - D not at fault for V's death in Blaue. Nevertheless, still found liable
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Arguments Favouring No-Fault Liability

  • SL raises standards w/health + safety of public
    • Callow v Tillstone - not at fault but meat still unfit
    • Alphacell Ltd. v Wodward - helped river pollution
    • Serves as warning to other businesses to be vigilant
    • Protects employees from being unfairly treated by bosses
      • They cannot claim a lack of MR for an offence
  • SL offences generally not serious - relatively small penalty
    • Saves Court expense + time
    • Gammon v A-G Hong Kong - 'if mens rea had to be proved in even the smallest of regulatory offences, even the administration of justice might quickly come to a complete standstill'
  • Avoids proving neglegence + problems w/litigation inc time delays + laywer costs
    • People entitled to compensation would get it more easily than w/fault based system
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