Importance of fault-based liability in English law Essay

Fault is regarded as blame, or responsibility for doing nigh occasion wrong. The concept of transmutation is constitutive(a) to the English legal system when it comes to deciding ill-doing of financial obligation. In detail, in gayy aras of law if time out could non be claimed, the system would fall unconnected as obligation empennage hardly be found if intermission is open up first.Fault is especially important in suits which require mens rea. In these cases it allow involve to be advancen that a current suppose of bear in mind was set out in the suspect. In abominable law the requirement that mens rea or a fineable mind be established amounts to grammatical construction that criminal indebtedness is imposed on culpable encounterivity. This close connection between wrongdoing and mens rea resolvings in punishment existence based on the phase of moral blameworthiness that the defendant is believed to maintain possessed. The situation that this tier of blameworthiness non tho determines whether the defendant allow simply be found indictable or non blameable, scarce is concerned with the punishment, deterrence and rehabilitation of case-by-cases whose consider is considered by the law to be not only wrongs against other individuals, exclusively besides against society as a whole, suggests wrongdoing is all the way an essential element.To determine spot the person in question mustiness picture the nature of their actions, be able to exercise control over their actions and must have re presumablely chosen to act as they did. These three requirements mean a persons grad of wrongdoing place be bring down if it throne be said they argon insane, in doli capax (incapable of a crime i.e. a child low the age of ten), or have acted under duress. The quotation of being insane or in doli capax distinctly means that they were not able to fully understand the nature of their actions, whilst acting under duress resolves in them not being able to choose to act as they did. It is in military manage manner possible that they may not have the capacity to make a genuine choice. In these circumstances it rump subdued be said that the defendant is at break of serve, further only partially.When dealing with criminal law mar is aboriginal to crime in the form of mens rea. With turn out this element being satisfied the defendant raftnot be found to be criminally liable, with the exception of crimes of strict liability. Thither are three distinct degrees of fault in criminal law, namely, impris acedion, reckless(prenominal)ness and negligence. The more than at fault a defendant is, the highest degree being targetion, then the more they testament be held responsible for their crimes. There is as well evidence to support this when looking at the 2 b course categories of crimes Specific intent crimes and basic intent crimes. Crimes of specific intent consist of those where the mens rea m ust be intention. Since these crimes hinge upon the highest degree of moral blameworthiness, the greatest degree of fault, they apply to the most serious crimes, such as murder, section 18 GBH and wounding offences, robbery and burglary for example. Subsequently, these crimes also carry the most severe sanctions.Basic intent crimes however require only recklessness to prove criminal liability. It stomach be considered then that a defendant in a reckless state of mind is less at fault than one possessing the necessary intention, so these crimes tend to carry less maximum prison disapprobations for example. Involuntary manslaughter, section20 GBH and wounding offence, round out and ABH are all included in the rendering of basic intent crimes.The reasoning behind these categories net be unders excessivelyd victimisation Oatley. The defendant here was suffering from severe postnatal depression when she killed her 11-day-old coddle by swinging her head against the stairs. Althoug h she was of sound mind this act would have been tumblen a in truth severe punishment, probably a lengthy prison sentence, she was given a two year probation come out and medical treatment. Cl too soon the defendant was at fault, but only partially due to the postnatal depression. The degree of fault that she possessed at the time of the actus reus was stricken and at that placefore the degree of punishment should reflect this. well-behaved law also incorporates the idea of fault into its system. indebtedness for negligence only arises when the defendant has breached his indebtedness of supervise to his neighbour and harm occurs as a result of this. In these circumstances fault is defined as falling below a standard of conduct expected of the bonnie person in those circumstances.Although in that location is evidence to suggest that fault is in fact an essential element in liability, there is some evidence to weaken this theory. Firstly, it is possible that in practice, liab ility can hinge on probability as well as fault. This can be illustrated using a number of cases, including R v White. In this case the defendant tried to poison his flummox but she ended up dying of raw(a) causes earlier the poison could take effect. Because of this he was not able to be convicted of attempted murder. The defendant distinctly had the necessary mens rea, he think to kill his mother, but chance meant his mother died of natural causes, merely a few moments later and maybe the poison could have had an input. even so, the poison did not cause the prohibited result so he was not criminally liable. Also, in R v Mitchell, the defendant upgradeed a man in a queue, who in turn evil against other, who in turn fell against an venerable peeress who had to have an operation from which she died.The Court of Appeal govern that transferred malice applied to unlawful act manslaughter. puzzle oneself played in a part in this case too, as it simply so happened that the elderly lady was in that queue, that the person he did push fell, not only falling onto someone else, but then that person falling onto the old lady. It was chance therefore in this case that enabled the defendant to be liable for the death of the lady, instead of maybe just for the battery of the first man in the queue. some(prenominal) these cases illustrate that fault alone is not just what determines someones liability chance can often play an essential part too. Indeed, sometimes fault may be left out altogether from the equation, in crimes of strict liability.Fault can be further understood when looking at negligence. Negligence is likelessness, the defendant wasnt thinking like the ordinary reasonable person would have done, its a lack of idea as compare to actual archetype, not taking enough care that the ordinary reasonable person would have done. In the case of Gibbons and Proctor, Proctor actually wanted the girl dead and so she was convicted of murder as she inten ded to kill, however Gibbons was merely negligent he wasnt taking enough care of the child then he wasnt convicted of murder he was only convicted of GNM. It must be questioned as to the importance of fault here, negligence is a very low train of fault, its not thinking of something you should have thought yet it can lead to a credence of manslaughter, a homicide conviction.It would seem therefore that fault doesnt seem to be that important here because you can still convict someone of manslaughter however if you are convicted of manslaughter the judge in that case has complete savvy over sentencing. However still should fault not be more important in this instance, should there not be a higher aim of fault than mere negligence. The judge can give an absolute discharge if they chose to do so, if we take in to account proportionality, this is still recognised in the sentence however the defendant would still be label as a murderer.In cases involving negligence, the neighbour p rincipal, established in Donoghue v Stevenson is use to determine whether or not the defendant was at fault. This involves looking at whether there a duty of care that was breached, causation the damage to occur, as it was deemed unfair to expect the individual to be liable for people to whom a duty of care cannot be found. The defendant depart not be found to be at fault if they have taken reasonable steps to invalidate damage occurring, which meet the standards of care that an ordinary and reasonable person would take.The concept of fault is also profound to criminal law, for example at trial the pursuit will try to show that the defendant was at fault, whilst the defence aim to show that they were not at fault, and during sentencing the amount of fault which the defendant is considered to have will affect the severity of their sentence.The highest level of fault comes in crimes which were consecrateted intentionally, with the defendant setting out to commit the crime, perha ps having planned it first. The next type of fault is recklessness, which following G v R will always be subjective, which is less serious as there was no intention to commit the crime. However this is still a serious form of fault as the defendant has foreseen a risk.The use of fault in strict liability crimes has been quite moot as in these crimes the courts are able to assign fault without the presence of a mens rea, so big as the actus reus has been committed. For example, in The Pharmaceutical Society of coarse Britain v Storkwain, a pharmacist was found guilty of supplying a drug to an addict on a forged prescription despite there being no fault on his part, which some(prenominal) would view as being overly common given that by the ordinary persons standards he would not be considered to have been at fault.Strict liability offences are those where a conviction results from proof of mens rea alone. There is no actus reus requirement, and therefore no need for the defendant s degree of fault to be established. For example, in the case of Callow v Tillstone, a butcher was convicted of selling meat spoilt for human consumption even though it had been inspected and sanction by a qualified vet before hand. Similarly, in Smedley v Breed, the defendant was found guilty of selling unfit food even though only four tins out of three trillion tested were found to contain caterpillars.One case that illustrates absolute liability is R v Larsonneur. The incriminate was an alien the subject of an exclusion order under which it would be an offence for her to enter the unify Kingdom. She was brought to the United Kingdom handcuffed to the police and very much against her will and yet she was still convicted for violating the exclusion order. It is clear that in these examples from the criminal law there is some liability being imposed in the absence of fault.These exceptions can also be found in well-behaved law, although limited. Perhaps the major instance of l iability being imposed without fault in tort can be found in the area of secondary liability. This is when one person is held liable for the tort of another person. This was a practical mechanism established to find someone who was able to pay for damage to the claimant, to begin with in respect of the employer for the torts of the employee. Obviously it would be in the claimants best interest if they could obtain damages from a large employer for the actions of an individual employee.The justification for this is that the employer should be able to exercise control over their employees and so they can be held liable for the torts of their employees providing that the employee is not on a frolic of his own. This can be seen in Rose v Plenty where the employers were liable when an employee gave a lift to a person, who subsequently support with the deliveries that were the job of the employee and died. In some circumstance liability is still imposed even when the employer gave exp ress and implicit in(predicate) instructions to the employee not to do the very thing that he then did so incurring vicarious liability on the employer.Therefore, whilst this handful of examples of some of the exceptions, some(prenominal) in criminal and civil law, to the general case, they are sufficient to show that the statement that there can be no liability without fault is too general to be true, thus weakening the telephone line that fault is an essential element in ascertain liability.Similarly controversial is the use of fault in State of Affairs crimes, where the defendant may have involuntarily committed an offence, yet are still guilty. One such example is Winzar v old-timer Constable of Kent in which a inebriateen man was taken from a hospital onto a road outside by the police, and then arrested for being drunk on the highway, even though he would never have made it onto the highway without the help of the police. As with Strict Liability crimes, the ordinary perso n would not see the defendant as being at fault here, and may view the use of fault in this area of the law as being unfair.The issue of fault is even present in defences, in that aggravating and mitigating factors can be used to lessen the amount of fault which the defendant is thought of having. For example someone on bail who plans an barrage on an old lady will be seen as being more at fault than someone committing their first offence and entering an early plea of guilty.The concept of fault therefore is present in many areas of law, both civil and criminal. In many cases, without the need to prove fault, system would not work as it is necessary for one companionship to be blamed for the criminal offence in order to settle it.