The principle that there is no liability without fault can be demonstrated in criminal law through the use of defences available to a defendant accused of a crime. If a defence is successfully claimed by the defendant it may lead to a total deterrence meaning the defendant is no longer liable (as he clearly lacked mens rea), essentially meaning he or she is no longer at fault. For instance, the defendant may seek to plead insanity based on the principles laid out in M’Naghten rules (1843). The defendant would have to prove on the balance of probabilities that he was suffering from a defect of reason, caused by a disease of the mind, in which prevented him from knowing the true nature or quality of his act or that it was in fact wrongful. In specific relation to insanity, if a special verdict that the defendant is ‘not guilty by reason of insanity’ is raised - with the exemption of murder, the judge must rule that the defendant is hospitalised indefinitely to a mental or various other institutions.
This can also be applied to Automatism. Automatism is available where the defendant committed an offence due to an external factor. For instance acts caused after a blow to the head, injection of insulin and being attacked by a swarm of bees (Hill v Baxter). Here, although an offence has been committed, there is no intention; and because he had no control over his actions, he is not at fault and therefore would not be liable.
Furthermore, the principle of fault can be illustrated by the use of special defences. This is where the defendant’s sentence is reduced because in the circumstances of the case there were mitigating factors. 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.
In this case, the leading case for Tort law is Donoghue v Stevenson; here the courts established that the manufacturers owe a duty of care to the ‘ultimate consumer’. Also, they established the ‘Neighbour test’, where ‘a person must take reasonable care to avoid omissions that may affect those closely and directly by their actions’. Now, Caparo Rules’ are used to establish whether or not a duty of care exists. Firstly, the claimant must prove that the harm was foreseeable (Nettleship v Weston), that the relationship between the defendant was proximate at the time the negligence arose (Watson v BBBC) and that it is fair, just and reasonable to impose a duty of care on the defendant. An example of where a claim has failed is Barnet v Chelsea and Kensington Hospital, where although the doctor had a duty of care to the widows husband as he was a patient and that he breached that duty as he refused to treat him, the court found the doctor not guilty on the basis that it was not fair, just and reasonable to impose a duty as her husband would have died regardless of whether he would have been treated or not.
In spite of this, fault liability requires some intention, or a minimum of conscious failure to take care by the defendant. In contrast, for strict liability the law does not enquire into fault, the defendant is found guilty purely on actus reus. This area of law does not require fault, meaning it contradicts the principle that there is no liability without fault.
These offences compromise a significant amount of criminal offences. For instance there are around 7,500 cases in the English law system; half of these cases are ones of strict liability. Strict liability offences are usually regulatory/administrative crimes, where usually the defendant is issued with a fine or penalty. In Gammon v Attorney General of Hong Kong, Lord Scarman stated that the distinction should be made between offences that are ‘truly criminal’ in character and those that are concerned with an issue of ‘social concern’. Examples of these are the sale of food, for instance in Callow v Tillstone although the defendant had took the meat to the vet and they said it was fit for human consumption he was still held liable for the meat being contaminated. 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.
