Fault (law)

A specific intent offence, 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 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 a murder is done with 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

• common assault (see section 39 of the Criminal Justice Act 1988)
• the assault element of
  Offences against the Person Act 1861
• inflicting grievous bodily harm, contrary to section 20 of that Act.

In all of these offences the defendant is liable of 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 recklessness is sufficient to prove fault in the defendant.

Gross negligence

The defendant can also be

Some defences 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–defence, operate by establishing that the defendant's conduct was justified or should be excused. Finally the partial defences 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 offence of manslaughter.

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 by the courts, which is sufficient for basic intent offences. 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 offence. However, often there is a basic intent offence as a fall-back 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 offence). However, there are some crimes that do not have this fall-back position (e.g. theft).

Consent

The defence of consent is often only available to smaller offences, 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 defence 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

Types of sentences

Types of sentences will also reflect level of blameworthiness:

• Custodial sentence
• Suspended sentence
• Curfew
• Extended sentence
• Community sentence
• Fine
• Conditional discharge
  or Absolute discharge

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

• Only actus reus needs to be established
• No blameworthiness is required on the part of the defendant
• It normally applies to
  traffic offences
  etc.)
• The advantages and disadvantages must be considered

Cases include

• Sweet v Parsley (1969) ^[2] – where the defendant was found guilty of allowing her property to be used for cannabis 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 Lords 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) ^[6] - 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.

References