Fault

• What is Fault?

  1. Fault generally implies a sense of blameworthiness or responsibility for one’s wrongdoing. In criminal law, to be at fault D’s act or omission must usually be voluntary. If D has no control over his actions, then he is not at fault and has not committed the actus reus. In WHOOLEY a lorry driver successfully used the defence of automatism when he crashed because of sneezing.
• 2. Mens rea is the main fault element of the offence. The law may make D guilty for being negligent or reckless, or for having the intention to cause a prohibited result. These are very different levels of fault. The highest level of fault in criminal law is intention. D directly intends a result where it is his aim or purpose. D desires the result that occurs and sets out to achieve it: MOHAN. Intention is the required level of mens rea for murder and theft.
• At the end of mens rea of fault:

  2. However, for most crimes the level of fault is recklessness, D knows there was a risk of the result happening but takes that risk: CUNNINGHAM.
• 4. There are various defences available in the criminal law which can reduce or eliminate fault on the part of D.
• 3. Fault justifies imposing a punishment on an offender. The degree of fault is also important when the judge decides the sentence of a person who has been convicted or who has pleaded guilty.
• WHEN WILL THERE BE CRIMINAL LIABILITY WITHOUT FAULT?

  Strict liability offences require no proof of mens rea for some or all of the actus reus. D must have committed the actus reus voluntarily, but D does not have to be at fault. In ALPHACELL LTD v WOODWARD the pumps a company had installed broke down and caused pollution to flow into a nearby river. There was no evidence that the company had been negligent (at fault), but they were strictly liable because it was of the utmost public importance that rivers should not be polluted.
• SHOULD THERE BE LIABILITY WITHOUT FAULT IN CRIMINAL LAW?

  Disagree

  1. In criminal law, it can be argued that since a person convicted of an offence is liable to be punished, then there should be a fault element for that person to be convicted.
  2. It makes people who are not blameworthy guilty. Unless there is a statutory ‘due diligence’ defence available, even those who have taken all possible care will be found guilty. This happened in HARROW LBC v SHAH where the Ds were guilty even though they had done their best to prevent their employees selling lottery tickets to anyone under the age of 16.
• SHOULD THERE BE LIABILITY WITHOUT FAULT IN CRIMINAL LAW?

  Agree

  1. However, there are arguments that strict liability should be used even in the criminal law. There are other reasons for imposing liability, not just fault. Strict liability offences help protect society and encourage businesses to operate to high standards of safety. It is also easier to enforce strict liability offences as there is no need for the prosecution to prove mens rea. This helped secure the conviction of the river polluting company in ALPHACELL LTD v WOODWARD.
• SHOULD THERE BE LIABILITY WITHOUT FAULT IN CRIMINAL LAW?

  Agree

  2. Sometimes a requirement to prove mens rea would be impracticable. For example, to prove that people knew they were speeding would impose too high a burden on the prosecution. In such cases strict liability is essential.