Fault (legal)
Encyclopedia
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.
Fault is an essential element in law. For instance, in family law
, in order for a divorce
petition to succeed the courts have to see some form of fault from one of the parties. In the case of adultery
, this act would be committed by one party member (e.g. the man) which would be grounds for the other party (e.g. the woman) to file for divorce. In this case the party accused of adultery would be at fault.
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 state of mind is required.
If the defendant commits a voluntary criminal act, there is strong evidence that he is at fault, and responsible for the crime; However if the act is caused by an involuntary act, such as an act of automatism, or duress the defendant will not be at fault, and therefore not liable.
, the defendant has committed the act in response to a threat of death of serious personal injury to himself or a loved one, or someone he feels responsible towards. Therefore he is removed of fault as his actions were done to prevent such harm being done to himself or a loved one, or to someone he feels responsible towards. It would be considered unfair to place the defendant at fault of a criminal action which he committed under duress.
and entered the UK, but then got deported to Ireland, and then deported back to the UK, 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, as there was no need to prove fault. 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 to the point of being semi – unconscious, 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, not was he at fault, due to the crime been one of state of affairs he was liable and charged as such.
, seen in the case of R v Vickers (1957), this requires the defendant to intentionally cause the damage, be fully aware that his actions will lead to the desired consequence of murder. And this is what the defendant intended to occur from his actions. This 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, usually life, or on the judge’s discretion. However if a murder is done with specific intent in the name of a religion, ideology etc., or on particularly vulnerable groups of people such as children, and continuously (such as terrorism, or a serial child killer) then it may be that the defendant is given a whole life tariff (never sees daylight again).
In all of these offences the defendant is liable off the offence and at fault if he commits the offence intending for the damage to be done, or being subjectively reckless as to whether the damage occurs. For these reckless is sufficient to prove fault in the defendant.
, which is the mens rea required by involuntary manslaughter offences, such as seen in the case of R v Adomako (1994), where the defendant was held to be negligent as he had "breached a duty of care".
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–defence, operate by establishing that the defendant's conduct was justified or should be excused. Finally the partial defences to murder, such as provocation, diminished responsibility and suicide pact demonstrate a lesser degree of fault, resulting in conviction for the lesser offence of manslaughter
.
is only available to smaller offences, such as Common Assault and, possibly, Actual bodily harm (S.47), as it is not reasonable to foresee that a person would consent to having serious damage or murder done to them. The partial defences show that the defendant is at fault, but the sentences reflects that the defendant is not fully at fault, as he was not fully responsible. However, he is still at fault.
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 factor
s. 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. Tariff
s and minimum sentences also illustrate that fault is relevant to the sentencing process, whether the defendant pleads guilty or is found guilty in court.
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
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
and the mental state
Mental state
* In psychology, mental state is an indication of a person's mental health**Mental status examination, a structured way of observing and describing a patient's current state of mind...
of the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. 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.
Fault is an essential element in law. For instance, in family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, in order for a divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
petition to succeed the courts have to see some form of fault from one of the parties. In the case of adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
, this act would be committed by one party member (e.g. the man) which would be grounds for the other party (e.g. the woman) to file for divorce. In this case the party accused of adultery would be at fault.
In criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
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
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
offences, where no state of mind is required.
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 victims own act. Either of these can remove the legal blame from the defendant and remove the fault.If the defendant commits a voluntary criminal act, there is strong evidence that he is at fault, and responsible for the crime; However if the act is caused by an involuntary act, such as an act of automatism, or duress the defendant will not be at fault, and therefore not liable.
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) 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. If, though, he crashed as a result of an extraordinary event (e.g. getting attacked by a swamp of bees), then his actions could be considered automatic.Duress
In the case of DuressDuress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
, the defendant has committed the act in response to a threat of death of serious personal injury to himself or a loved one, or someone he feels responsible towards. Therefore he is removed of fault as his actions were done to prevent such harm being done to himself or a loved one, or to someone he feels responsible towards. 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 not be at fault (i.e. purposefully commit a criminal act voluntarily) however they are still liable. This is seen in R v Larsonneur (1933), where the defendant was FrenchFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and entered the UK, but then got deported to Ireland, and then deported back to the UK, 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, as there was no need to prove fault. 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 to the point of being semi – unconscious, 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, not was he at fault, due to 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 (blaue) and legal causation (Paget and white), if both can establish fault, then there is a criminal liability. This is because the defendant will be at fault if he directly caused the act to occur, and did nothing to stop it.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
For a specific intent offence, such as murderMurder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, seen in the case of R v Vickers (1957), this requires the defendant to intentionally cause the damage, be fully aware that his actions will lead to the desired consequence of murder. And this is what the defendant intended to occur from his actions. This 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, usually life, or on the judge’s discretion. However if a murder is done with specific intent in the name of a religion, ideology etc., or on particularly vulnerable groups of people such as children, and continuously (such as terrorism, or a serial child killer) then it may be that the defendant is given a whole life tariff (never sees daylight again).
Recklessness
There is also subjective recklessness, such as in the case of R v Cunningham (1957), where the defendant is not required to intend the consequence to come from his actions, but the defendant realised the risk that this consequence would occur and took the risk anyway. Such state of mind is required in most non – fatal offences, such as- common assaultCommon assaultCommon assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
(see section 39 of the Criminal Justice Act 1988) - the assault element of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861Offences Against The Person Act 1861The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
- inflicting grievous bodily harmGrievous bodily harmGrievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
, contrary to section 20 of that Act.
In all of these offences the defendant is liable off the offence and at fault if he commits the offence intending for the damage to be done, or being subjectively reckless as to whether the damage occurs. For these reckless is sufficient to prove fault in the defendant.
Gross negligence
The defendant can also be grossly negligentGross negligence
Gross negligence is a legal concept which means serious carelessness. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct one expects from the proverbial "reasonable person"...
, which is the mens rea required by involuntary manslaughter offences, such as seen in the case of R v Adomako (1994), where the defendant was held to be negligent as he had "breached a duty of care".
Defences
Some defences work by showing lack of fault through the involuntary nature of the defendant's conduct. Others, such as insanityInsanity
Insanity, craziness or madness is a spectrum of behaviors characterized by certain abnormal mental or behavioral patterns. Insanity may manifest as violations of societal norms, including becoming a danger to themselves and others, though not all such acts are considered 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–defence, operate by establishing that the defendant's conduct was justified or should be excused. Finally the partial defences to murder, such as provocation, diminished responsibility and suicide pact demonstrate a lesser degree of fault, resulting in conviction for the lesser offence of manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
.
Intoxication
The use of Intoxication as a defence is based on whether the offence 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 defence of intoxication failing, as getting voluntarily intoxicated is viewed as reckless intent by the courts, which is sufficient for basic intent offences.Consent
The defence of consentConsent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
is only available to smaller offences, such as Common Assault and, possibly, Actual bodily harm (S.47), as it is not reasonable to foresee that a person would consent to having serious damage or murder done to them. The partial defences show that the defendant is at fault, but the sentences reflects that the defendant is not fully at fault, as he was not fully responsible. However, he is still at fault.
Sentencing
Both the type of sentenceSentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
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
Aggravation (legal concept)
Aggravation, in law, is "any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself."...
and mitigating factor
Mitigating factor
A mitigating factor, in law, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.-Death penalty in the United States:...
s. 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. Tariff
Tariff (criminal law)
In England and Wales, life imprisonment is a sentence which lasts until the death of the prisoner, although in most cases the prisoner will be eligible for parole after a fixed period set by the judge. This period is known as the "minimum term"...
s 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:- Custodial sentenceCustodial sentenceA custodial sentence is a judicial sentence, imposing a punishment consisting of mandatory custody of the convict, either in prison or in some other closed therapeutic and/or educational institution, such as a reformatory, psychiatry or drug detoxification...
- Suspended sentenceSuspended sentenceA suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
- CurfewCurfewA curfew is an order specifying a time after which certain regulations apply. Examples:# An order by a government for certain persons to return home daily before a certain time...
- Extended sentence
- Community sentence
- Fine
- Conditional dischargeConditional dischargeA discharge is a type of sentence where no punishment is imposed. An absolute discharge is unconditional: the defendant is not punished, and the case is over. In some jurisdictions, an absolute discharge means there is no conviction despite a finding that the defendant is guilty...
or Absolute discharge
Strict liability
There is a role for strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
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:
- Only Actus reus needs to be established
- No blameworthiness is required on the part of the defendant
- It normally applies to regulatory offencesRegulatory offencesA regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required...
(health and safety, minor traffic offences etc.) - The advantages and disadvantages must be considered
Cases include
- Sweet v Parsley (1969) – where the defendant was found guilty of allowing her property to be used for cannabisCannabisCannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
smoking. Even though she had no knowledge of the offence, it was on her property so she was liable without fault. This conviction was later quashed by the House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
on the grounds that knowledge of the use of the premises was essential to the offence. Since she had no such knowledge, she did not commit the offence. - Harrow London Borough Council v Shah and another (1999) - relating to the sale of a lottery ticket to a person who had not attained the age of 16 years.
Advantages of strict liability
- Many strict liability offences concern the running of a business, and if the business runs properly the actus reus will never occur. This means that many strict liability offences keep many businesses in line
- A person or company taking a risk in order to make a profit ought to be liable if the risk causes problems to others
- Certain activities must be prohibited for the public good and, so long as the penalty is not too severe, the public interest in, for example, preventing pollution outweighs the public interest in not convicting those who are without special fault
- For some offences, it would be impossible to secure a conviction if guilty knowledge had to be proved, particularly where the defendant was a company rather than an individual.