AQA Law 04 - fault

intent = highest level (MR for murder, S.18, Theft) but for most crimes the level is reklessness which is now all subjective (Cunningham) manslaughter can be committed by 'gross negligence'

defences can reduce (e.g. murder to manslaughter) or remove fault (e.g. acquital):

- diminished responcibility - recognises D isn't fully responcible due to abnormal mental functioning so reduced fault 

- loss of control - recognises D has lost control for specified reason, reduced level of fault

- automatism - D not in control at all so fault removed

- insanity - recognises D isn't fully responcible so reduces fault and special verdict allowing judge to choose appropriate order

- voluntary intoxication - can negate MR of intent but not reklessness so reduces fault

- self-defence - no fault and result is acquital even if D makes mistake as long as is genuine.

mitigating and agravating factors show less/greater level of fault and the sentence will reflect this. even where the judge has no discretion the tariff system recognises degrees of fault so the greater the degree the greater the reccomended term.

- thin skull rule means D may be liable due to vounerability in V rather than fault itself (Blaue - V refused blood transfusion which could have saved life and D liable)

- D may be guilty of murder even if intent only to seriously injure (DPP V Smith)

- Offences Against the persons act 1861 s47 and s20 have level of fault that doesnt match actus reus as D only needs to intent to see risk of assualt/battery or seek ABH as both show lower level of fault.

- Gemmell and Richards - HL realised low leve lof fault and changed law.

- gross negligence seems to be lower level of fault than e.g. mnslaughter

- unlawful act manslaughter only requires MR for act, not death so D may be liable for manslaughter even if MR for linor crime.

regulatory offences e.g. illegal parking, car tax and insurance, pollution. where as 'real' crimes cause more contraversy (Sweet V Parsley - convicted for use of cannabis on his land even though not aware, so HL overturned convition)

'state of affairs crimes' don't require any fault, D can be liable for being in wrong place at wrong time (Winzar - drunk on highway, even though put there by police)

should there be liabiloty without fault in criminal law?

yes - it protects the public, regulatory offences are minor and carry no social stigma, the judge can address the issue of fault when sentencing 

no - its arguably unjust to convict and punish someone without fault, at the very least it means a criminal record no matter what the sentence.

contract

- breach of contract: party in breach seen at fault and is liable to pay damages

- misrepresentation: fraud is highest level (Derry V Peek) negligence is lower, even innocent interpretations are actionable

- remedies also reflect degree of fault: damages only awarded for forseeable loss (Hadley) recission is a descretionary remedy and wont be awarded to party at fault

tort 

- in breach of duty cases where D has to reach standard of reasonable person: if required standardnot met D is in breachand liable, not if sufficient precautions have been tke (Bolton V Stone - 7ft high fence put around) professionals have a higher duty (Bolam) children have lower (Mullins) (Nettleshiip V Weston - learner driver expected to reach standard of competent driver even though should have had lower level of fault as is a learner)

- causation, as requires forseeability of harm - D not liabe if damage too remote (Wagon mound)

- in nuisance, fault is that D has unreasonably interfered with someones enjoyment. motive nit usually relevant unless malice shown. (Christie V Davy) (Hollywood silver fox farm) defences of consent and contributory negligence realise that if C wholly/partly at fault then claim fails or damages reduced.

- thin skull rule applies (Smith V leechbrain - burn triggered pre-existing cancer to develop)

- proving fault can be difficult and V left without compensation specifically medical negligence cases

- teste for breach of duty mean tort system is inconsistant providing remedies 

- possibility of introducing no-fault system for traffic accidents was from Pearson Committee report but hasnt been acted upon.

rule under Rylands V Fletcher but has become less strict with case of Cambridge water as now must be forseeability of harm in Rylands cases.

- comsumer protection act imposes strict liability on producers of goods which extends to others who are involved in production and distrubution all of whom may be liable even if not personally at fault

- vicarious liability: can show how someone can be liable though not personally at fault, although not strict liability as someone has to be at fault.

should there be liability withot fault in civil law?

yes - protects pulic e.g. consumer protection act so V may be saved of court case, if a universal no-fault system was introduced e.g. for road accidents, the state wuld pay so every V compensated even if not from D, in vicarious liability - employer is better able to pay

no - in vicarious liability cases employer may not be at fault but must pay for wrongdoing of an employee, D should pay only where they're at fault, in a fault-based system V is fully compensated by the  wrongdooer whereas in a universal system the state would pay everyone but a lesser amount.

is a requirement:

- most crimes require that AR is voluntary - most crimes require MR - judge can consider aggravating and mitigating factors when sentencing  - tort of negligence looks at whether D has dropped below the standard of reasonable person - manufacturer owes a duty to a consumer but is only liable if negligent - if an employee negligent they may be liable to compensate the person harmed.

is not a requirement:

- D can be liable even when not acting voluntarily in state-of-affairs crimes - strict liability offences don't require MR - mandatory life sentence doesn't allow any discretion - Rylands V Fletcher is a tort of strict liability so D is liable even if not negligent - liability is strict under the Consumer Protection Act 1987 so D is liable even if not negligent - an employer may be vicariously liable for that employee's neligence even though not personally at fault