Victoria McAlister

“It is a principle of fundamental importance in English law that there should be no liability without fault”. Consider how far fault is an essential requirement of liability in English law, and discuss the suggestion that fault should be an essential requirement.

 

The English Law considers that for a person to be legally responsible for his actions or oversights it is essential to have evidence that he is at fault or to some extent culpable. This theory of “no liability without fault” is a frequent theme passing through the English Legal system; it indicates the English notion of justice that for liability to be enforced, fault must be demonstrated. Thus conferring a level of blame on the person involved.

To determine the circumstances in which a person may be legally liable for his acts or omissions is indeed one of the most fundamental functions of law in any society. The basis on which liability has traditionally been attached is on the basis of fault. Usually the law hinges both criminal and civil liability on fault (although in varying degrees), which initially would suggest, that fault is an essential element in liability.

In criminal law the requirement that mens rea (unlawful state of mind at the time of the offence) be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed. The fact that this degree of blameworthiness not only determines whether the defendant will simply be found liable or not, but is concerned with the punishment, deterrence and rehabilitation of individuals whose conduct is considered by the law to be not only wrongs against other individuals, but also against society as a whole, would suggest fault is clearly an essential element.

To determine fault the person in question must understand the nature of their actions, be able to exercise control over their actions and must have genuinely chosen to act as they did. Because of these three requirements, it means a person’s degree of fault can be reduced if it can be said they are insane, in dole capax (incapable of a crime i.e. a child under the age of ten), or have acted under duress. The recognition of being insane or in dole capax clearly means that they were not able to fully understand the nature of their actions, whilst acting under duress results in them not being able to choose to act as they did. It is also possible that they may not have the capacity to make a genuine choice. In these circumstances it can still be said that the defendant is at fault, but only partially.

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So in conclusion with regards to criminal law, fault is seen to be 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.) 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. Such as with regard to negligence, with its purpose being to compensate a victim for the blameworthy actions ...

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