• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Law and Fault. The fundamental principle of English law is that there is no liability without fault. In this case, there are many definitions of fault; it is an expression that may be used to describe legal responsibility for a wrongful act.

Extracts from this document...


Law & Fault The fundamental principle of English law is that there is no liability without fault. In this case, there are many definitions of fault; it is an expression that may be used to describe legal 'responsibility' for a wrongful act. This is illustrated in criminal law, as for the defendant to be held liable for an offence the prosecution must prove the defendant acquired both, actus reus and mens rea for that offence. The actus reus refers to the physical element of an offence, it is the positive voluntary act or omission which causes a crime. Mens rea refers to the mental element of an offence which is the blameworthy state of mind (usually subjective recklessness or intention) that is required by the courts at the time the offence is committed. In this case, unless the prosecution can prove mens rea is present at the time the defendant commits the act, he will not be liable as there is no fault for the crime. The idea is not whether or not the act itself was committed, but whether the defendant intended it. For instance, for a defendant to be charged with assault under s.39 of the Criminal Justice Act 1988, the defendant must have the intention or be subjective enough to cause the victim to apprehend immediate unlawful force. Intention meaning that they desired the outcome (they chose to bring about the prohibited circumstances) ...read more.


Partial defences to murder stated in the Homicide Act 1957, if claimed successfully, allow a conviction for voluntary manslaughter; meaning a judge may reward a discretionary sentence for murder, as oppose to the mandatory life sentence imposed. The partial defence of diminished responsibility (s.2) and provocation apply to cases where the defendant does not have control over what he or she is doing. What this defence does is recognise that such defendants are less at fault then say 'cold blooded' killers and therefore should be less liable for the consequences of their actions. Under s.3 of the Homicide Act 1957, the defence of provocation requires the proof that the defendant was provoked (need not be illegal i.e. in Doughty a baby crying was suffice), which caused the defendant to lose control and that in the same circumstances the reasonable person would have done the same. There is a requirement for fault in civil law for negligence. Here, in order for a claimant to succeed in action for negligence, they must prove that a duty of care exists, that that duty is breached and that the damage cause was in fact cause by the defendants conduct. If they fail to prove all three elements then the defendant is not at fault and thus is not liable for the offence. ...read more.


Also, health and safety offences (Blake v DPP where selling a lottery ticket to an under 16 was seen as risk to public as encourages underage gambling), social concern cases and common law offences such as parking tickets. However, in the case of Sweet v Parsley, Lord Reid ruled 'where the wording of an act gave no indication as to whether mens rea is required there was a understanding common law...' meaning strict liability is based upon whether the requirement of mens rea is stated in an Act of Parliament. Here, a woman was charged with the management of cannabis as it was used on her property she let out to her students, she hardly stayed there. The courts felt that because the offence she was charged with would have had high social stigma attached, it would be unreasonable to charge her without mens rea. Although strict liability offences are cheaper and less time consuming as there is no need to prove mens rea and it ensures and encourages companies and the public to take extra care. Strict liability cases are morally wrong as it allows innocent individuals to be punished regardless of whether or not they have taken precautions; also that they are ineffective as there is no evidence that others did, in fact take extra care because these offences exist. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Machinery of Justice section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Machinery of Justice essays

  1. Marked by a teacher

    Non-fatal Offences?

    3 star(s)

    CMV.Clarkson and HM.Keating argue that 'both section 18 and 20 cover the same harm' and ask the question of 'can the difference in their maximum penalties be justified exclusively in terms of their differing mens rea requirements?' one believes that, it does justify the requirements but to a certain extent.

  2. Critically analyse the relationship between law and justice.

    The Law Lords said "it is a fundamental principle that a man must not be a judge in his own cause". The principle of both sides having the right to be heard states that both sides should have a

  1. Outline the rights of a defendant to legal representation and bail

    He committed this offence while on bail for another r**e charge. This case highlights that bail conditions can easily be broken and innocent people suffer. The CJPOA would not have allowed bail if s.25 had not been challenged and reformed under s.56 of the Crime and Disorder Act 1998.

  2. The Death Penalty in Canada. There are many issues surrounding the rebirth of ...

    Mental illness is a touchy subject whilst dealing with the death penalty. However, mentally ill people have been given the death penalty and it is an unfair and unjust action which again deteriorates the value of human life. Some criminals may also not see it as a deterrent because they may have the option of pleading insanity.

  1. Judical Creativity in Law

    The court hierarchy plays a big part in deciding which decisions have more weight. Though the rules of precedent are applied rigidly and don't appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided 'thus allowing judges to create new law.

  2. Conditional Fee Arrangements and Legal Aid

    This level of service covers work previously carried out under the 'Green Form' scheme. Funding is also available for a person to be represented in court proceedings, replacing civil legal aid. The third category, Help at Court, allows a solicitor or adviser to speak on another's behalf at certain court

  1. The English Court System

    The role of the magistrates court is to determine whether the defendant is guilty or not and giving appropriate sentences. The magistrate?s court decides on applications on bail and decides on requesting for remands in custody. The magistrate?s court can decide on civil matters relating to families.

  2. Arguing in Favour of the Death Penalty

    The majority of them were white and all were men. At the end of 2007 35 of the 50 states had 3,220 inmate sentenced to death which went down from the number in 2006.The article states that the Electric Chair was first used in New York in 1980 and still

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work