Fault (law)

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Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

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In criminal law, the mens rea is used to decide if the defendant has criminal intent when he commits the act and, if so, he is therefore liable for the crime. However, this is not necessary for strict liability offences, where no particular state of mind is required to satisfy the burden of proof.

Actus reus element

Most requirements for a successful actus reus require a voluntary act, or omission, for evidence of fault. There is also a requirement for a clear causation, there is no liability or fault if the defendant was not actually the sole cause of the act, this is so if there was an intervention of a third party, an unexpected natural event, or the victim's own act. Either of these can remove the legal blame from the defendant and remove the fault.

Automatism

If the criminal act is caused by an act of automatism, it means the act was caused by an involuntary movement of the limbs, and not controlled by neuron stimulation, removing the blameworthiness from the defendant. This was seen in the case of Hill V. Baxter (1958) [1] where the defendant injured a person by crashing his car into them. He argued that his action was not voluntary because he was unaware of what happened. However, he was found guilty because the judge held that sleepiness or drowsiness when driving does not amount to automatism.

Duress

In the case of duress, the defendant has committed the act in response to a threat of death or serious personal injury to himself or a loved one, or someone towards whom he feels responsible. Therefore he is removed of fault as his actions were done to prevent such harm being done. It would be considered unfair to place the defendant at fault of a criminal action which he committed under duress.

Liability

In such cases of a "state-of-affairs" crimes, the defendant may be found liable even if he or she did not purposefully or voluntarily commit a criminal act. This is seen in R v Larsonneur (1933), [2] where the defendant was French and entered the UK. She then tried to marry a British citizen, after which she would have gained British citizenship, which she could never be subsequently deprived of. However, the marriage was refused and she was ordered to leave the UK that day (March 22). Instead, she went to the Irish Free State seeking a priest there to marry her and the man, George Drayton. No priest could be found and the Irish police ordered her to leave by April 17 under the Irish Constitution. Larsonneur still did not leave and on April 20 was taken into custody by Irish police where they were forced to deport her back from whence she had come, the UK. On arrival in the UK, she was arrested for being an 'illegal alien'. The defendant was not at fault as she did not intentionally re-enter the UK under the Alien Act; however she was still liable for the crime under Alien Act, as there was no need to prove the act was voluntary. This was also seen in the case of Winzar v Chief Constable of Kent (1983) [2] where the defendant was admitted to hospital by a friend who was worried for his health. However when the hospital realized he was merely drunk to the point of being semi – unconscious, they discharged him from the hospital. The defendant, because of his intoxicated state, could not get home, and was liable for drunk and disorderly conduct. Even though he did not have intention for the crime, nor was he at fault, because the crime been one of state of affairs he was liable and charged as such.

Causation

There is also an issue of causation, in this the courts look at both factual causation and legal causation. Factual causation uses the 'but for' test, asking: 'but for the defendant's act, would the result still have occurred?' If it would have occurred regardless of the defendant's acts, there is no factual causation and the defendant is not guilty. Factual causation was effectively established in the legal case of Pagett [1983]. However, in the case of White [1910] the result would still have occurred 'but for' the defendant's actions, so there was no criminal liability. Legal causation uses the 'operative and substantial' test. The defendant's acts must be the 'operative and substantial' cause of the result, as seen in the case of Smith [1959].

Mens rea element

The mens rea involves the different states of mind which demonstrate the relationship between degree of fault and liability. Depending on the different state of mind of the defendant at the time of committing the unlawful act, different sentences will be given.

Murder

A specific intent offense, such as murder, seen in the case of R v Vickers (1957), [3] requires intention to cause a specific result. The mens rea of murder is the intention to kill or to cause grievous bodily harm. Intention is the most serious of states of mind the defendant can have, and this high level of fault is reflected in strict and long sentencing. Murder carries a mandatory life sentence, though the judge can impose a recommended minimum number of years as to which the defendant must serve before being eligible for release.

However, if murder is done with a specific intent in the name of a religion, ideology, etc., or to particularly vulnerable groups of people such as children, or is done so continuously (such as terrorism or serial killing) then it may be that the defendant is given a whole life tariff (never sees daylight again) to reflect his level of fault.

Recklessness

There is also subjective recklessness, such as in the case of R v Cunningham (1957), [4] where the defendant is not required to intend the consequence to come from his actions, but the defendant realized the risk that this consequence would occur and took the risk anyway. Such a state of mind is required in most non–fatal offenses, such as

In all of these offenses, the defendant is liable for the offense and at fault if he commits the offense intending for the damage to be done, or being subjectively reckless as to whether the damage occurs. For this recklessness is sufficient to prove fault in the defendant.

Gross negligence

The defendant can also be grossly negligent, which is the mens rea required by involuntary manslaughter offences, such as seen in the case of R v Adomako (1994), [5] where the defendant was held to be negligent as he had "breached a duty of care".

Defenses

Some defenses work by showing lack of fault through the involuntary nature of the defendant's conduct. Others, such as insanity and intoxication, work by establishing a lack of mental control or awareness on the part of the defendant. Still others, such as Duress and self–defense, operate by establishing that the defendant's conduct was justified or should be excused. Finally, the partial defenses to murder, such as loss of self-control (previously provocation), diminished responsibility, and suicide pact demonstrate a lesser degree of fault, resulting in conviction for the lesser offense of manslaughter.

Intoxication

The use of intoxication as a defense is based on whether the offense is one of basic intent or specific intent, and also whether the intoxication was voluntary or involuntary. For example, getting voluntarily intoxicated and committing actual bodily harm (a crime of basic intent) will result in the defense of intoxication failing, as getting voluntarily intoxicated is viewed as reckless by the courts, which is sufficient for basic intent offenses. Specific intent crimes demand proof of intention, and if the defendant did not form that mens rea, he cannot be guilty of the specific intent offense. However, often there is a basic intent offense as a fallback in such cases, e.g. if the defendant is charged with grievous bodily harm or wounding under s18 Offences against the Person Act 1861 but did not form the specific intent, he can be charged under s20 of that act, which has the same actus reus, but requires only intention or recklessness as to 'some harm' (making it a basic intent offense). However, there are some crimes that do not have this fallback position (e.g. theft).

The defense of consent is often only available to smaller offenses, such as Common Assault and, possibly, Actual bodily harm (S.47). The Attorney General's Reference [No. 6 of 1980] set s47 as a watershed, above which consent is unlikely to function as a defense as it is not reasonable to foresee that a person would consent to having serious harm done to them. However, cases are decided on an individual basis, and case law shows that a victim may effectively consent to even grievous bodily harm (e.g. in sport, in the case of Barnes [2004]).

Sentencing

Both the type of sentence imposed, and its severity, is in large part determined by the degree of fault shown by the defendant. This can also be seen in the impact of both aggravating and mitigating factors. This is why some people are opposed to the use of minimum and mandatory sentences, as they break the relationship between the degree of fault present in the offence committed and the sentence imposed. A guilty plea can have an effect on the sentence, depending on when it is made. Making a guilty plea before the start of the trial can reduce the sentence imposed by up to one third but changing the plea to guilty once the trial has started can only reduce it by one tenth. This is because admitting fault after the trial has begun has wasted court time and money (for jury and judge etc.), so this is reflected in the sentence. Tariffs and minimum sentences also illustrate that fault is relevant to the sentencing process, whether the defendant pleads guilty or is found guilty in court.

Types of sentences

Types of sentences will also reflect level of blameworthiness:

Strict liability

There is a role for strict liability in criminal law, in relation to both regulatory offences and offences of social danger. It can be argued that the interests of society as a whole can sometimes justify the imposition of liability without fault. Nevertheless, it should be pointed out that the degree of fault still plays an important part in determining the sentence following a conviction

Conditions for strict liability
Cases include

Advantages of strict liability

Related Research Articles

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

In criminal law, actus reus, Latin for "guilty act", is one of the elements normally required to prove commission of a crime in common law jurisdictions, the other being mens rea. In the United States it is sometimes called the external element or the objective element of a crime.

In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea, to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.

In criminal law, the intoxication defense is a defense by which a defendant may claim diminished responsibility on the basis of substance intoxication. Where a crime requires a certain mental state to break the law, those under the influence of an intoxicating substance may be considered to have reduced liability for their actions. With regard to punishment, intoxication may be a mitigating factor that decreases a prison or jail sentence. Numerous factors affect the applicability of the defense.

In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining criminal liability, or offenses that requires mens rea, a mental state of guilt.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.

In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

<i>R v Miller</i>

R v Miller is an English criminal law case demonstrating how actus reus can be interpreted to be not only an act, but a failure to act.

<i>DPP v Majewski</i> UK legal case

DPP v Majewski [1976] UKHL 2 is a leading English criminal law case, establishing that voluntary intoxication such as by drugs or alcohol is no defence to crimes requiring only basic intent. The mens rea requirement is satisfied by the reckless behaviour of intoxicating oneself.

<span class="mw-page-title-main">English criminal law</span> Legal system of England and Wales relating to crime

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

In most common law jurisdictions, an element of a crime is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must present evidence that, even when opposed by any evidence the defense may choose, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged. The component parts that make up any particular crime vary now depending on the crime.

In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime, known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the prosecution, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

Intoxication in English law is a circumstance which may alter the capacity of a defendant to form mens rea, where a charge is one of specific intent, or may entirely negate mens rea where the intoxication is involuntary. The fact that a defendant is intoxicated in the commission of a crime — whether voluntarily or not — has never been regarded as a full defence to criminal proceedings. Its development at common law has been shaped by the acceptance that intoxicated individuals do not think or act as rationally as they would otherwise, but also by a public policy necessity to punish individuals who commit crimes.

<span class="mw-page-title-main">Criminal law of the United States</span>

The criminal law of the United States is a manifold system of laws and practices that connects crimes and consequences. In comparison, civil law addresses non-criminal disputes. The system varies considerably by jurisdiction, but conforms to the US Constitution. Generally there are two systems of criminal law to which a person maybe subject; the most frequent is state criminal law, and the other is federal law.

In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting crime; and conspiring to commit. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.

Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.

Voluntary intoxication, where a defendant has wilfully consumed drink or drugs before committing acts which constitute the prohibited conduct of an offence, has posed a considerable problem for the English criminal law. There is a correspondence between incidence of drinking and crimes of violence, such as assaults and stabbings. Accordingly, there is a debate about the effect of voluntary intoxication on the mental element of crimes, which is often that the defendant foresaw the consequences, or that they intended them.

References

  1. ↑ "Cases - defences - automatism". Sixth Form Law. Archived from the original on 6 February 2017.{{cite web}}: CS1 maint: unfit URL (link)
  2. 1 2 3 "Strict Liability Issues". Strict Liability Issues. Archived from the original on January 25, 2003. Retrieved November 28, 2022.{{cite web}}: CS1 maint: unfit URL (link)
  3. ↑ "Cases - murder - mens rea". Sixth Form Law. Archived from the original on 2 November 2017.{{cite web}}: CS1 maint: unfit URL (link)
  4. ↑ "The K-Zone: R v Cunningham (1957)". The K-Zone. Archived from the original on November 5, 2006. Retrieved November 28, 2022.{{cite web}}: CS1 maint: unfit URL (link)
  5. ↑ "Cases - manslaughter - gross negligence". Sixth Form Law. Archived from the original on 2009-02-23. Retrieved 2009-04-12.{{cite web}}: CS1 maint: unfit URL (link)
  6. ↑ The Independent
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