The Role of Fault

Discuss the meaning of fault and explain your reasons for agreeing or disagreeing with the views expressed above. Relate your answer to liability in civil law, or in criminal law, or in both. To determine the circumstances in which a person may be legally liable for his acts or omissions is indeed one of the most fundamental functions of law in any society. The basis on which liability has traditionally been attached is on the basis of fault.

Usually the law hinges both criminal and civil liability on fault, suggesting that at first glance, fault is an essential element in liability. In criminal law the requirement that mens rea or a guilty mind be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed.

The fact that this degree of blameworthiness not only determines whether the defendant will simply be found guilty or not guilty, but is concerned with the punishment, deterrence and rehabilitation of individuals whose conduct is considered by the law to be not only wrongs against other individuals, but also against society as a whole, suggests fault is clearly an essential element. It in turn provides answers to questions such as whether the defendant should serve a prison sentence, and if so for how long?

This also has the same effect in civil law as it helps to answer questions such as should compensation be paid, and if so how much? To determine fault the person in question must understand the nature of their actions, be able to exercise control over their actions and must have genuinely chosen to act as they did. Because of these three requirements, it means a person's degree of fault can be reduced if it can be said they are insane, in dole capax (incapable of a crime i. e. a child under the age of ten), or have acted under duress.

The recognition of being insane or in dole capax clearly means that they were not able to fully understand the nature of their actions, whilst acting under duress results in them not being able to choose to act as they did. It is also possible that they may not have the capacity to make a genuine choice. In these circumstances it can still be said that the defendant is at fault, but only partially. As we have discussed, when dealing with criminal law fault is central to crime in the form of mens rea.

Without this element being satisfied the defendant cannot be found to be criminally liable, with the exception of crimes of strict liability, which we will learn of later. There are three distinct degrees of fault in criminal law, namely, intention, recklessness and negligence. The more at fault a defendant is, the highest degree being intention, then the more they will be held responsible for their crimes. There is also evidence to support this when looking at the two broad categories of crimes; Specific intent crimes and basic intent crimes. Crimes of specific intent consist of those where the mens rea must be intention.

Since these crimes hinge upon the highest degree of moral blameworthiness, the greatest degree of fault, they apply to the most serious crimes, such as murder, section 18 GBH and wounding offences, robbery and burglary for example. Subsequently, these crimes also carry the most severe sanctions. Basic intent crimes however need on a mens rea of recklessness or negligence to prove criminal liability. Therefore, it can be considered that a defendant in a reckless state of mind is less at fault than one possessing the necessary intention, so these crimes tend to carry less maximum prison sentences for example.

Involuntary manslaughter, section20 GBH and wounding offence, assault and ABH are all included in the definition of basic intent crimes. The reasoning behind these categories can be illustrated using Oatley (1995). The defendant in this case was suffering from severe postnatal depression when she killed her 11-day-old baby by swinging her head against the stairs. Although is she was of sound mind this act would have been given a very severe punishment, probably a lengthy prison sentence, she was given a two year probation order and medical treatment.

Clearly the defendant was at fault, but only partially due to the postnatal depression. The degree of fault that she possessed at the time of the actus reus was impaired and therefore the degree of punishment should reflect this. Civil law also incorporates the idea of fault into its system. Liability for negligence only arises when the defendant has breached his duty of care to his neighbour and harm occurs as a result of this. In these circumstances fault is defined as falling below a standard of conduct expected of the reasonable person in those circumstances.

Although so far we have heard evidence to suggest that fault is in fact an essential element in liability, there is some evidence to weaken this theory. Firstly, it is possible that in practice, liability can hinge on chance as well as fault. This can be illustrated using a number of cases, including R v White. In this case the defendant tried to poison his mother but she ended up dying of natural causes before the poison could take effect. Because of this he was not able to be convicted of attempted murder.

The defendant clearly had the necessary mens rea, he intended to kill his mother, but chance meant his mother died of natural causes, just a few moments later and maybe the poison could have had an input. However, the poison did not cause the prohibited result so he was not criminally liable. Also, in R v Mitchell, the defendant pushed a man in a post office queue, who in turn fell against another, who in turn fell against an elderly lady who had to have a hip operation from which she died. The Court of Appeal ruled that transferred malice applied to unlawful act manslaughter.

Chance played in a part in this case too, as it just so happened that the elderly lady was in that queue, that the person he did push fell, not only falling onto someone else, but then that person falling onto the old lady. It was chance therefore in this case that enabled the defendant to be liable for the death of the lady, instead of maybe just for the battery of the first man in the queue. Both these cases illustrate that fault alone is not just what determines someone's liability, chance can often play an essential part too.

Indeed, sometimes fault may be left out altogether from the equation, in crimes of strict liability. Strict Liability offences are those where a conviction results from proof of mens rea alone. There is no actus reus requirement, and therefore no need for the defendant's degree of fault to be established. For example, in the case of Callow v Tillstone (1900), a butcher was convicted of selling meat unfit for human consumption even though it had been inspected and approved by a qualified vet before hand.

Similarly, in Smedley v Breed (1974), the defendant was found guilty of selling unfit food even though only four tins out of three million tested were found to contain caterpillars. One case that illustrates absolute liability is R v Larsonneur (1993). The accused was an alien the subject of an exclusion order under which it would be an offence for her to enter the United Kingdom. She was brought to the United Kingdom handcuffed to the police and very much against her will and yet she was still convicted for violating the exclusion order!