As we have discussed, when dealing with criminal law fault is central to crime in the form of mens rea. Without this element being satisfied the defendant cannot be found to be criminally liable, with the exception of crimes of strict liability, which we will learn of later. There are three distinct degrees of fault in criminal law, namely, intention, recklessness and negligence. The more at fault a defendant is, the highest degree being intention, then the more they will be held responsible for their crimes. There is also evidence to support this when looking at the two broad categories of crimes; Specific intent crimes and basic intent crimes. Crimes of specific intent consist of those where the mens rea must 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 need on a mens rea of recklessness or negligence to prove criminal liability. Therefore, it can be considered 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 sentences for example. Involuntary manslaughter, section20 GBH and wounding offence, assault and ABH are all included in the definition of basic intent crimes. The reasoning behind these categories can be illustrated using Oatley (1995). The defendant in this case was suffering from severe postnatal depression when she killed her 11-day-old baby by swinging her head against the stairs. Although is she was of sound mind this act would have been given a very severe punishment, probably a lengthy prison sentence, she was given a two year probation order and medical treatment. Clearly 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 impaired and therefore the degree of punishment should reflect this.
Civil law also incorporates the idea of fault into its system. Liability for negligence only arises when the defendant has breached his duty of care 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 reasonable person in those circumstances.
Although so far we have heard 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, liability can hinge on chance 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 mother but she ended up dying of natural causes before the poison could take effect. Because of this he was not able to be convicted of attempted murder. The defendant clearly had the necessary mens rea, he intended to kill his mother, but chance meant his mother died of natural causes, just a few moments later and maybe the poison could have had an input. However, the poison did not cause the prohibited result so he was not criminally liable. Also, in R v Mitchell, the defendant pushed a man in a post office queue, who in turn fell against another, who in turn fell against an elderly lady who had to have a hip operation from which she died. The Court of Appeal ruled that transferred malice applied to unlawful act manslaughter. Chance played in a part in this case too, as it just 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. Both these cases illustrate that fault alone is not just what determines someone’s 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.
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 (1900), a butcher was convicted of selling meat unfit for human consumption even though it had been inspected and approved by a qualified vet before hand. Similarly, in Smedley v Breed (1974), the defendant was found guilty of selling unfit food even though only four tins out of three million tested were found to contain caterpillars. One case that illustrates absolute liability is R v Larsonneur (1993). The accused was an alien the subject of an exclusion order under which it would be an offence for her to enter the United 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 civil law, although limited. Perhaps the major instance of liability being imposed without fault in tort can be found in the area of vicarious 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 damages to the plaintiff, primarily in respect of the employer fro the torts of the employee. Obviously it would be in the plaintiff’s 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 (1976) where the employers were vicariously liable when an employee gave a lift to a person, who subsequently assisted with the deliveries that were the job of the employee and died. In some circumstance liability is still imposed even when the employer gave express and implicit 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, both 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 argument that fault is an essential element in determining liability.
Whether fault should be essential in determining liability is another matter. If there were no concept of fault in the English Legal System then liability would all be based on proof of actus reus alone. This is not only undesirable but also unacceptable. It would result in people being liable for sheer accidents, possibly resulting in their loss of freedom simply because of chance. This is clearly not justice. It would lead to some very unfair results, leading to the criminal conviction of people who have not done anything that would be described as morally wrong. If liability were to abandon the idea of fault then it could also mean that people could go as far as to loose their freedom for something which they are not blameworthy for. At the moment, strict liability convictions will not usually lead to imprisonment if the courts believe that the defendant did all he reasonably could.
There are various examples of where this theory can lead to unfair results. In Prince (1875) a man was convicted of unlawfully taking a girl away from her parents without their permission even though the girl had looked much older and had lied about her age. Also, in Pharmaceutical Society v Storkwain Ltd (1968), the defendant was convicted of selling drugs contrary to the Medicines Act 1968; after he had dispensed the drug only after being given a forged prescription that he had no reason to believe was forged.
Not only is it unfair but some argue that it is unnecessary. In Australia a defendant who acted reasonably may use this as their defence. In this way the public are still protected from unscrupulous corporations and individuals without the need for manifestly unfair convictions.
Whilst it may prove desirable to adopt a strict liability approach in areas such as the Road Traffic Act 1988 concerning driving whilst under the influence, to ensure high standards and act as a huge deterrent for such a dangerous action, I believe that it would very undesirable if fault was not an essential part of liability. It would result in people being liable due to chance, and people being convicted of events that should be taken as accidents. This would not be justice.
