What is Fault?
The Collins Concise Dictionary describes fault as the ''responsibility for a mistake or misdeed...guilty of error, culpable...blame''- can be defined in more clear language as when someone is morally to blame for their actions.
The emphasis on moral blameworthiness reflects the purpose of criminal law, which is to uphold and re-enforce the value's of society (James Fitzjames Stephan).
How far the law, be it criminal or tort, relies on fault and whether or not this should be the case.
Liability dependant on fault (Criminal law)
The requirement of fault in criminal law.
The Criminal law upholds the assumption that there is no liability if harm was caused by accident, unless the D is morally to blame for their actions.
In these cases we tend to punish defendants who had direct intention (highest level of intent) more serverly e.g. s.18 and s.20 of the Offences Against a Persons Act 1861.s.20= 5 year conviction, s.18= life sentence. The difference between the two is whether or not the D directly intended the result to happen- reflected in sentences given.
If the accused is not morally responsible for their actions they cannot be found at fault and certain defences will be available (self-defence, automatism, insanity).
In automatism and insanity we accept the fact that the D did not intend the outcome- not morally to blame- D either aquitted or found no guilty by reason of insanty
MR- requirement. D must have at least seen risk of PC to have intended result. Case of SvP (facts)- conviction quashed (no MR- not truly criminal). Shows importance of being morally at blame as for criminal law we have much evidence that liability will depend on how much you are at fault.
Liability not dependant on fault (Criminal Law)
Liability doesn't always depend on fault, e.g strict liability.
Aim of this is to regulate behaviour and not allocate blame. Whilst it was found in SvP that the D was not criminally at fault, in other cases like Shah and Shah= shopkeepers were to balme as member of their staff sold lottery ticket to under 16 (were told to ask for ID).
Shows that liability may not always depend on whether someone is morally to blame for actions.
Public often question cases like this- from outsiders point of view= unfair to punish the shopkeepers when it was actually a member of staffs fault.
Non-fatal offences, s.20 and s.47 of the OSAP 1861- do not require D to have foreseen or been reckless as to harm caused, only have to have foreseen the risk of harm (s.20) or risk of CA/CB.
Means that even though you have a lower level of harm you are still being convicted of a more serious offence.
Fault- must act in best interests of public, so V=see D being punished for harm caused, and intentions behind them.
Liability dependent on Fault (Civil Law)
Fault is generally a requirement of liability in tort.
In negligence the D is only liable if he falls below the standard of a RM as shown in Bolton v Stone when a RM wouldn't have put a fence up (D-not at fault).
As in Criminal law D must be factual/legal cause of damage. Barnett provides us with the but for test (but for...). The WM asks if the kind of damage... These rules arim to find if the D is morally blameworthy and so intended actions.
In WM- found that it was not reasonable to blame D for explosion, as whilst his acts of leaking oil caused demage, rendered too remote due to other circumstances that followed.
This is not always the case.
Liability not dependent on Fault (Civil Law)
Often people are found liable of a crime when they are not at fault.
Vicarious Liability makes one person liable for the fault of another e.g. Rose v Plenty when D gave a lift to a boy whilst working and got injured, the employer was found VL for D's act.
This appears to be unfair/unjustified as the empolyer was only to blame because he hired the D and he himself had not injured the boy.
Here we have the example that there is no need to prove fault in tort.
If the value of fault is to 'uphold and re-enforce the values of society' then surely the driver of the van should be punished as he was the one who put society at risk, not the employer.
Liability shouldn't depend on fault
If the reason for fault is to 'uphold and re-enforce the values of society' then why is it that sometimes no fault is required to protect the public interest?
Strict Liability offences normally exist to protect the public from issues of social concern and Lord Reid in the case of Warner v Metropolitan Police Officer said that strict liability offences are 'quasi criminal offences which do not offend our sense of justice that moral guilt is not the essence of the offence' that is, that it's not for us not to judge if someone is morally to blame for their actions, it is for us to act in the best interests of the public.
Liability should depend on fault
Justice requires fault to be on the part of the D because without liability conflicts with our sense of justice and unfairness.
Also, it's morally offensive to punish someone who is blameless or who has taken reasonable care, such as in Limpus when the employer forbid the employee's actions and was still at fault.
Finally, without fault the law is reflected badly upon free society that people can be deprived of their liberty when they are not morally to blame for their actions.