Fault - example essay

It is considered that the establishment of liability based on 'fault' is the fundamental principle of English Law. Consider arguments for and against this view.

Fault is a concept in law which refers to the blameworthiness and responsibility in each area of law. This is closely linked to the mental state of the defendant. The basic principle of fault is that a defendant should be able to contemplate the harm that his actions may cause, and should therefore aim to avoid them.

Fault is an essential element in law, as it can be seen an any area of law, although its importance varies depending on what kind of offence is being dealt with.

Fault can be seen as the basis of criminal law, illustrated by the requirement of the mens rea in almost every criminal offence. Even if the actus reus is proven, a person cannot be liable for a crime unless his mens rea is proven. Different offences require different levels of mens rea, which would also mean different levels of fault.
The highest level of fault can be seen in specific intention, where D has the intention for that particular offence (e.g. for murder this must be the intention to kill or cause serious injury). Basic intent crimes require recklessness, a lesser level of fault, where D realized there is a risk of harm occurring but takes that risk. Negligence is yet a lower level of fault, where the defendant owes a duty of care which is breached by falling below the standard of care appropriate to the specific duty.

However, there are crimes of strict liability which do not require mens rea at all. While this kind of offence recognizes certain limited defences, takes no account of the defendant’s state of mind. This appears to contradict the basis of criminal law, as a defendant may be guilty even if there was no blameworthiness on him. However, the fact that the main aim of strict liability would be to protect the interests of society as a whole can sometimes justify the imposition of liability without fault. This can be seen in Pharmaceutical Society of Great Brtain v Storkwain Ltd (1986) where the defendants were not at fault in any way but they have risked danger to the public. This was also the case for Sexual Offences Act 2003, where sexual intercourse with a girl under 13 is strict liability, resulting in the controversial case of G (2008) where D was guilty despite consent and genuine belief that V was of age.

There are also cases of absolute liability, where not even an actus reus is required, and the defendant only needed to be in a "state of affairs". The defendant may not be at fault (i.e. intentionally committing a criminal act voluntarily) however they are still liable. This is seen in R v Larsonneur (1933), where the defendant was French and entered the UK illegally, but then got deported to Ireland, and then deported back to the UK and 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 this act. This was also seen in the case of Winzar v Chief Constable of Kent(1983)  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, they threw him out of the hospital. The defendant, because of his intoxicated state, could not get home, and was liable for been drunk and disorderly. Even though he did not have intention for the crime, nor was he at fault, he was still charged because it was an absolute liability crime.

This raises the question of whether liability based on fault was the basis of law, or whether other aims such as deterrence of the protection of society are more important. Baroness Wootton argues that the objective of criminal law is to prevent the occurrence of socially damaging actions, it would be absurd to ignore those which were due to carelessness, negligence or even accident. Nevertheless, it should be pointed out that the degree of fault still plays an important part in determining the sentence following a conviction. Even Baroness Wootton said that her argument only applies to offences not truly criminal, and that the justification for strict liability is that fault will be considered later in sentencing.

In most cases, judges have complete discretion over a sentence, thus being very flexible depending on the level of fault present. The only cases in which they do not have discretion are murder and other offences where there is a minimum sentence for repeat offenders of serious offences, drug dealing or burglary. Even in murder, the law recognizes there are different levels of fault through the tariffs which must be imposed under the Criminal Justice Act 2003, which gives the guidance on the minimum term a murderer must serve before being able to apply for parole. In other sentencing the judge will take into account aggravating factors that make the offence more blameworthy such as whether the offence was premeditates, racially motivated, etc…, or mitigating factors making it less blameworthy such as the fact that the defendant was a first time offender or pleading guilty before the trial. It can be seen that fault plays a central role in sentencing an offender.

Even in contract law, where it is more concerned with the regulation of agreements, fault can still be an issue when a party breaches a contract through the mechanism of remoteness of damage and foreseeable loss, as seen in Hadley v Baxendale. The defendant’s mental state is significant when it comes to areas such as fraud or misrepresentation (e.g. Derry v Peek). This is illustrated by the fact that false representation must be made ‘knowingly or without belief in its truth or recklessly careless whether it be true or false’.

The law of tort is particularly based on fault liability. In negligence, a defendant cannot be liable unless the claimant can also show fault. This is shown by the need to prove a duty of care and a breach, and tested by the ‘reasonable man’ test (Donoghue v Stevenson). Fault can also be seen in trespass torts, to land, to persons, and to goods in the requirement of direct and intentional interference. While motive is said to have no relevance to the commission of tort, fault can certainly be recognized where malice is an issue, such as in the cases of Hollywood Silver Fox Farm v Emmett and Christie v Davey. Theaker v Richardson illustrates fault in the tort of defamation where it is required that falsehood is published to a third party.

With the fact that false always plays in integral role in every area of law, even if other objectives such as protection of society may sometimes come before in strict liability laws, it is clear that fault forms the basis of English law. Its importance would vary in each area, but it would always be significant in the sentencing stage, where the sentence at the complete discretion of the judge reflects the level of fault found on the defendant.