What is Fault?
Defined as responsibility or blame for an offence.
"Actus reus reum nisi mens rea" - the act is not guilty unless the mind is also.
Person is found at fault - usually held liable (suggesting the general rule of fault based liabilty).
Professort Hart - "Punishment should be reserved for those who voluntarilty break the law, due to stigma both socially and legally that will affect a person for the rest of their life."
Fault Based Liability: Actus Reus
Actus reus illustrates the importance of fault in law - acts must be voluntary for D to be liable.
Hill v Baxter - Swarm of bees leads to the acts being involuntary.
General rule - Not held liable for an omission because hard to enforce a good samaritan law and public protection.
Number of contractual duties where D has a duty to care. D has greater level of responsibility therefore a greater level of fault.
Causation - liable if D's acts cause the consequence. Factual and legal cause, no intervening act which breaks the chain of causation.
Thin Skull Rule - exception to general rule of fault based liabilty. Blaue (blood transfusion). 'Take the victime as you find them'. Seems harsh, exceeding D's fault. However provindes closure for V's family and acts as a deterrence - the law will not accept these crimes.
Fault Based Liability: Mens Rea
Mens rea is crucial - element which D has complete control over.
Different levels of fault for different levels of intention i.e direct and indirect intention, recklessness.
Direct intent - Mohan 'decision to bring about the consequence' - highest level of fault.
Indirect intent - Woolin 'virtual certainty of a risk of death and D realises it'
Recklessness - Subjective test seen in G&R rather than Objective test seen in Caldwell and Elliott. More just as it looks at what D foresaw. Lower level of fault.
However, mens rea does not always reflect D's fault and liabilty.
Vickers - Intention of GBH is enough for murder, regardless of the fact he did not see the risk of death.
Fault Based Liability: Voluntary Manslaughter and
DR and LC lower D's fault - lesser conviction given.
However, D's who commit the crimes possess same MR and AR as D convicted of murder.
Reflected in sentencing - Bryne (sexual psychopath) successfully pleaded DR yet received a life sentence. His MR and fault reflected in the sentence he received.
Sententing can reflect fault.
Custodial reflects more fault than a discharge.
Aggravating and mitigating factors to reflect D's fault, blameworthiness and cluprability.
Murder - mandatory life sentence with minimum sentence tariffis - unfair. 2 D's commit the same crime, have different levels of blameworthiness will receive the same sentence.
Fault very apparent in many areas of law (especially mens rea). Different levels of fault can reflect a persons liability.
Liabilty Without Fault (Strict Liability and State
Strict Liability - liable without fault. Often regulatory offences, no MR required.
Argument for strict liability is that there are other reasons for imposing liabilty, not just fault.
Offences againt the Trade Description Act are not trully criminal but the act aims to protect consumers.
- Food Safety - Smedley v Breed - Caterpillar in a tin of peas.
- Pollution - Alphacell v Woodward - factory polluting river.
- Protectiong Children - Harrow v Shah - Lottery ticket to under 16 year old
Sweet v Parsley - HofL overturned conviction - fault was needed.
State of Affairs - no fault required at all - wrong place, wrong time.
- Winzar - drunk on a highway (put there by police)
- Larsonneur - Deported about her will charged on arrival as an illegal alien.
Arguments For Fault Based Liability
1. We all have a personal freedom to choose to do good or bad - those who commit offences should be seen at fault - blameworthy by choise.
2. Social and Legal stigma - convicted of a crime stays with you for life even if sentenced a discharge you still have a criminal record.
3. Defendant must be morally blameworthy - not just factually blameworthy, must at lease be reckless to be at fault.
Arguments Against Fault Based Liability
1. Strict liabilty protects the public - balace public and personal interests. Unjust to allow people to not be held liable for being careless.
2. Strict liability offences are 'not trully criminal' - seen as relativelt minor carry no social stigma.
3. Judges can address the issue of fault in sentencing - mitigating and aggravating factors. This is when fault should be addressed not in conviction