LAW & FAULT

LAW & FAULT

1. Fault (Collins Concise Dictionary - responsibility for a mistake or misdeed... guilty of error, culpable...blame.

2. Actus Reus - must be voluntary. Defences are available to show someone might not be entirely to lame e.g. R v Bailey (automatism) R v Hudson & Taylor (duress). The accused will not be held responsible if the actions are not a result of their rational will.

3. Causation - responsibility of the D for the consequence. Not responsible if there was an intervening act which reflects level of fault, R v Williams & Davis 1977 (victims own act).

4. Omissions - a person who watches isn't legally seen as fault however some would argue they are partially to blame for not helping. Reflected in exceptions such as contractual duty (R v Pittwood).

5. Mens Rea - someone without the necessary mental awareness is not at fault. R v Clarke 1972 (Absent Mindedness arising from depression). Person cannot be fully at fault if intoxicated.

   • Direct intention - purpose, aim, desire. Severity represented by level of blame. Most blame with most severe punishment.
   • Oblique Intention - Virtual certainty, someone can still be at fault if they recognised something was virtually certain. Lower level of blame.
   • Recklessness - lowest level of culpability. Subjectivity of intention represents fault. R v G 2004 abolished caldwell recklessness which was objective.

6. Murder - recognises that someone who has intention to kill or cause GBH is at higher fault than someone who was reckless and negligent as to someones death. Defences reflect that someone may not have been truly to blame.

   • Self Defence - Complete acquittal, reflects that a person who is acting to protect themselves or others and using reasonable force should not be considered at fault. Acting spontaneously and action was unavoidable. R v Gladstone extended this to those who make an honest mistake.
   • Voluntary intoxication - shows the D is unable to form the MR and therefore the blame. DPP v Majewski shows that the effect of the intoxication renders the defendant less responsible for their actions, but they will still be found guilty of the basic level offence.

7. Involuntary Manslaughter - D only needs to have the MR of the unlawful act e.g. battery. Therefore, if they only intended battery it is hard to see how they can be at true blame for murder, doesn't show fault. A person could be guilty if a sober and reasonable person thought their actions were dangerous, even if they themselves did not appreciate the danger.

   • Gross Negligence Manslaughter - R v Adomako 'such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.' Clear, objective test whether a reasonable person would have foreseen a serious and obvious risk of death. Doesn't represent true fault.

8. Against Principle of Fault - Criminal law takes into no account of motive, illustrated by mercy killings (they do it out of care but still guilty of murder). Thin Skull rule results in the D liability going beyond that indicated by his level of fault, D is responsible for consequences which are far more serious than those that could have been foreseen (R v Blaue). Fault of the victim is usually not seen as relevant.

   • Strict Liability Offences - no fault requirement in MR. Significant departure from the principle of blame/fault. Generally regulatory offences, concerned with public safety. It shows that you can do everything to avoid a situation from happening, but it does, and you still get the blame (Harrow LBC v Shah). AR must be voluntary which shows it is slightly dependant on fault but to a lesser extent.
   • Mandatory Life Sentences - against fault. People who commit a mercy killing (R v Cox) out of love can get the same sentence as a serial killer despite being less at fault.
   • Absolute Liability (State Of Affairs) - do not require MR nor the act to be voluntary, e.g. R v Larsounner who was forced to leave one country, go to another and then forced back to the first and arrested for being there. She was not at fault as she was forcefully deported.

9. Non-Fatal Offences - all offences require proof of fault, however, only some have a MR equating to harm. S47 and s20 both require intention or recklessness to bring about a result less serious than that specified in the AR. S47 can be convicted of causing ABH despite only intended assault. the accused is held legally responsible for a level of harm higher than that he is at fault in bringing about.

10. PC B - Should the Law represent fault?

    • + Criminal Sanctions & Procedures - punishment is only justified if people are at fault, depriving people of their liberty is a serious infringement of the HRA. Criminal records can affect their future, they may struggle to adopt, get a job etc. Judges and the legislature regard the principle of no liability without proof of fault as being extremely important in law.
    • + Strict Liability is ineffective - lack of incentive to act reasonable due to no accounts being taken of attempts to prevent the prohibited act. it is inconsistent with justice to convict someone who is not guilty in the normal sense of the word just because the penalty is small.
      • + Strict Liability leads to unjust outcomes - Firearms act 1968 has a minimum sentence of five years for possession of prohibited weapons. In december 2009 an ex soldier who had handed in a sawn of shotgun he had found was given a 12 month suspension.
      • The defendants done all they could to prevent committing the offence so it is unfair that they were convicted.
    • - Protection of the public - SL is justified on the basis that it protects the public and deals with issues such as public health and safety, environmental protection and road traffic. It encourages higher standards of care.
      • Sexual offences act 2003 imposed strict liability in Sex cases with children under 13. Prosecution has only to prove the intentional sexual activity and age of the victim. However in R v G the D was aged 15 and believed the V was 15 but was still found guilty under s5. Fault isn't represented by should be to avoid prosecuting those who make an honest mistake and are not to blame.
    • - Saving time & expense - no need to prove MR reduces time and expenses. If prosecution had to prove MR in the smallest regulatory offence, the administration of justice might quickly come to a complete standstill.
    • Civil Law (Insurance premiums) - some V are able to claim compensation without the need to prove fault however many are required to prove fault. Road accident V and those of medical errors have to satisfy the negligence requirements. Insurance prevents the extension of no-fault liability as insurance premiums would have to rise and become unaffordable, more people would risk driving without insurance etc. causing the roads to become more dangerous.
      • Compensation - based on the notion of individual responsibility. it is unfair to punish an individual for harm caused by an accident, because being more careful would not have prevented the harm. Numerous employees receive compensation despite the employers doing whatever they can to prevent it. Government has conceded that the rules were not fair and announced that it will introduce legislation as a result of recommendations made.
      • No-Fault based system - accident victims are entitled to compensation or social security are more likely to receive compensation than under the fault-based system. it may be fairer for more people to receive compensation. Perception of unfairness in that all of society has to pay for the acts of blameworthy individuals.