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Law and Fault
Opening Paragraph
Fault means to take responsibility for a wrong, and is the basis for both our criminal and civil system.
Fault and Criminal Law
- We must show actus reus and mens rea beyond reasonable doubt - very scrit standard of proof.
- Actus reus is made up of the acts, circumstances and consequences of the offence.
- Hart said "Punishment should be restricted to those who voluntarily broke the law... this is a requirement of justice" (The love quotes)
- Automatism - if the act is involuntary, the defendant will not be at fault - unlike Broome v Perkins.
- There are 3 types of mens rea: Intention, recklessness and negligence. Each one of these shows a different level of fault.
For example in the Offences against the Person Act 1861:
- s.18 - intention only. Therefore the defendant has the most serious type of fault and the max penalty is life, reflecting this.
- s.20 - Reckless and intention. Reckless means you are not as much at fault - max 5yrs
- s.47 - A less serious crime, but again has the max of 5 yrs. Does this mean its the same amount of fault?
Fault and Defences
Partial defences for murder - Homicide act 1957
- Diminished Responsibility decreases blameworthiness, the offence is no longer murder.
- Provocation - we a partially blaming the victim.
Other defences such as intoxication, duress, insanity, self defence etc all also reduce blameworthiness.
Strict Liability
- Blaming people with no mens rea - is this fair?
- R v Shah and Shah - the judge said "This is not truly criminal, but its a matter of social concern i.e access to gambling for younger people should not be encourage"
- This is to deter - as opposed to punish those to blame.
Sentencing Guidelines
- The level of fault is looked at and reflected in the sentence. Pre sentence reports, mitigating and aggravating factors allow for this.
Should Fault be an essential requirement for criminal law?
- The consequences for someone found guilty are often far reaching - criminal record, lack of job opportunities, stigma etc.
- Therefore fault is essention.
Fault and Tort
- We prove fault by using tests from Donoghue v Stevenson (lord Atkins), Capro v Dickman etc.
- Contributory Negligence - If the claimant is partially to blame, the compensation is adjusted accordingly.
Why we have fault in tort
- Floodgates argument - limits the case load
- Laissez Faire Policy - You are responsible only for yourself, you shouldn't have to look after others.
- Economic Policy - Insurance companies simple couldn't cope.
- Accountability - We make people pay for their wrongs.
- Deterrence - Encouraging more careful behaviour.
Problems with a fault based system in tort
- Unjust decisions - Snelling v Whitehead. Lord Wilberforce said on this case "I am saddened by this case, it highlights the problems of a fault based system. This is a matter for Parliament"
- Lack of deterrent - there is no evidence to suggest that people are more careful after and accident.
- The objective standard is unfair - fault is judged on the reasonable man test. A driver of 20mins is judged the same as a driver of 20years. Nettleship v Weston.
- Tort should compensate, not punish - the system takes no accountability for peoples ability to pay
Fault is difficult to prove - The Person Committee said it was a "forensic lottery"
Alternatives to a fault based system
- Many states in the USA have a no fault system in tort.
- Employers and road users pay a higher tax, and if you are injured at work or have a car accident you are compensated immediately.
- Road accidents have been reduced by 30%
- However it was a much lower payout, and you still need to use courts for medical negligence.
The Pearson Committee looked at abolishing tort
- They found that is would be quicker, cheaper and fairer to have a no fault system. However they decided to keep it due to the deterrent factor.
- However many aren't deterred, so should it be looked at again?
Should Fault be an essential requirement in civil law?
- Doesn't have to be, we cant still hold people accountable, it is is not an essential part.
- More would be compensated if it were to change.
- However, for families who have lost a loved one through negligence, they often need someone to get the blame.
Comments
My teacher said that its not enough to learn the essay. You must also add in your own opinion and try and link with current affairs in today's society.
These notes are aimed at people studying for A Level Law, unit 6.
