LAW04 Concepts - Fault essay


“Explain the meaning of fault and discuss the extent to which legal liability is and should be based on fault.”


Fault is synonymous with ideas of responsibility, culpability and blameworthiness. The Latin maxim “actus reus non facit reum nisi mens sit rea”, of which many principles of law are based upon, expresses the importance of fault in law as it tells that both a guilty act and a guilty mind must be present for liability. Even the terminology used, such as “guilty,” “liable,” and notions of punishment and retribution in law show the importance of fault.

Criminal liability, therefore, is based upon the notion that the defendant is at fault if he has committed an act with a criminal mindset. However, this is not always the case in criminal law with strict and absolute liability offences which don’t need mens rea for conviction, along with other areas which don’t give a complete picture of fault to convict.

Mens rea is described as the barometer of fault or blame in the criminal law and it is arguably the element which most obviously shows these ideas. The more serious the crime, the higher level of mens rea is needed. Intention only is held for the most serious of offences, murder and S18 offences under the Offences Against the Person Act 1861 (OAPA). There are two types of intention, direct intention, defined in the case of Mohan as being the decision to bring about a certain consequence, or the consequence was the defendants main aim, purpose or desire, and oblique intention, defined in Woolin as being when a defendant is subjectively aware that the consequence of their actions is virtually certain, then the jury is entitled to find intent on the defendant’s behalf. This level of mens rea clearly reflects notions of fault, as the defendant must intend the consequence of grievous bodily harm (and/or death for murder) to be convicted of the most serious offences.

For lesser offences, such as the rest of the offences contained in the OAPA 1861, recklessness is sufficient for mens rea, defined in Cunningham and reinstated with the case of R and G in 2003, is when the defendant is subjectively aware of the unjustifiable risk of the consequence but goes on to take the risk anyway. This demonstrates a lower level of fault, where the defendant doesn’t intend the consequence but is aware of it as a possibility and still goes on to commit the act, demonstrated perfectly in Cunningham where the defendant’s intent was to get the money, but in ripping off the gas meter he caused a gas leak which poisoned the victim. Yet, fault is and still should be present as the defendant is still to blame, and that is why recklessness is a form of mens rea - to convict those who are guilty, showing how all forms of mens rea are based upon fault, albeit different levels of fault.

However, there are areas of mens rea that do not


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