Contents:
Fault
● Harm
- Justice
● Retrospective Liability
● Correspondence
● Fair Labelling
● Maximum Certainty
FAULT
Fault can be defined as blameworthiness and is arguably the basis of all
liability. An act is generally considered to have to be accompanied by
fault in order to amount to a crime, therefore without fault, it is fair to
say that liability would not occur. For example, if I pick up a gun and
shoot someone who dies as a result, I have directly caused their harm
and am at fault; it is only fair that I should be responsible for their death.
However, there are two types of offence that do not require fault, that of
strict and absolute liability which exist in order to deter those crimes
from being committed, such as in the case of Callow v Tillstone. Fault is
necessary to justify sentencing, as it is unfair to penalise someone for an
action that was not their fault. However, it is arguably unfair that
someone who is not at fault for the crime, i.e when they don’t have the
mens rea required, should be liable, such as in these strict liability cases.
Although fault is the basis of criminal law, these offences don’t require
fault or blameworthiness, as they don’t necessarily- in my opinion- seek
to carry out justice, but rather to regulate and protect society.
Additionally, different crimes require different levels of fault. For
example, basic intent crimes such as assault, battery or ABH require a
significantly lower level of fault than those required in specific intent
crimes such as in s.20 GBH. However, this is not always upheld, as the
maximum sentence of both ABH and s.20 GBH are the same despite the
different levels of fault. Here, fault is reflected in the mens rea of the
offence, as different offences require different levels of intention to be
satisfied. In ABH, for example, the mens rea (fault/intention) is to
recklessly intentionally inflict ABH on another through assault of
, battery, for the crime of GBH, different levels of fault are shown through
different mens rea, and this distinguishes s.20 GBH (recklessness) and
S.18 GBH (intention to inflict GBH.)
HARM
Harm could be defined as damage or injury to another which is enough
to justify criminal punishment and is arguably the basis of all criminal
conduct as, without harm, there would be no reason for justice. HArm
could be physical (e.g, battery), psychological (ABH), financial
(economic loss), or society (within harm to society). John Stuart Mill’s
Harm Principle stated that the law should only interfere with an
individual's freedom in order to prevent harm to another, which
establishes harm as the basis for all fault. For example, if I cause ‘really
serious’ harm to another person and get charged with s.18 GBH, it is only
fair that my freedom should be taken away and that I face the
consequences of my actions. This approach allows individuals to
maintain a sense of freedom whilst protecting them from harming
others, but may not stop them from harming themselves. This contrasts
with the Paternalistic approach to law, where the state is deemed
responsible for the citizen’s welfare. This would argue that harm should
be a basis fo criminal liability even when the individual is only a risk to
themselves, for example if they are suicidal, as the state seeks to protect
the welfare of individuals and deems them as not responsible for
themselves. This approach would therefore argue that harm could be
caused simply for offensive or immoral conduct. I, however, believe that
basing harm on offense is too subjective to create a sense of continuity
and fairness within the law, as the law would therefore be forever
changing with the changing attitudes of society, although this approach
may be beneficial in stopping individuals who cannot be responsible for
themselves to be safe and avoid harming themselves.
Fault
● Harm
- Justice
● Retrospective Liability
● Correspondence
● Fair Labelling
● Maximum Certainty
FAULT
Fault can be defined as blameworthiness and is arguably the basis of all
liability. An act is generally considered to have to be accompanied by
fault in order to amount to a crime, therefore without fault, it is fair to
say that liability would not occur. For example, if I pick up a gun and
shoot someone who dies as a result, I have directly caused their harm
and am at fault; it is only fair that I should be responsible for their death.
However, there are two types of offence that do not require fault, that of
strict and absolute liability which exist in order to deter those crimes
from being committed, such as in the case of Callow v Tillstone. Fault is
necessary to justify sentencing, as it is unfair to penalise someone for an
action that was not their fault. However, it is arguably unfair that
someone who is not at fault for the crime, i.e when they don’t have the
mens rea required, should be liable, such as in these strict liability cases.
Although fault is the basis of criminal law, these offences don’t require
fault or blameworthiness, as they don’t necessarily- in my opinion- seek
to carry out justice, but rather to regulate and protect society.
Additionally, different crimes require different levels of fault. For
example, basic intent crimes such as assault, battery or ABH require a
significantly lower level of fault than those required in specific intent
crimes such as in s.20 GBH. However, this is not always upheld, as the
maximum sentence of both ABH and s.20 GBH are the same despite the
different levels of fault. Here, fault is reflected in the mens rea of the
offence, as different offences require different levels of intention to be
satisfied. In ABH, for example, the mens rea (fault/intention) is to
recklessly intentionally inflict ABH on another through assault of
, battery, for the crime of GBH, different levels of fault are shown through
different mens rea, and this distinguishes s.20 GBH (recklessness) and
S.18 GBH (intention to inflict GBH.)
HARM
Harm could be defined as damage or injury to another which is enough
to justify criminal punishment and is arguably the basis of all criminal
conduct as, without harm, there would be no reason for justice. HArm
could be physical (e.g, battery), psychological (ABH), financial
(economic loss), or society (within harm to society). John Stuart Mill’s
Harm Principle stated that the law should only interfere with an
individual's freedom in order to prevent harm to another, which
establishes harm as the basis for all fault. For example, if I cause ‘really
serious’ harm to another person and get charged with s.18 GBH, it is only
fair that my freedom should be taken away and that I face the
consequences of my actions. This approach allows individuals to
maintain a sense of freedom whilst protecting them from harming
others, but may not stop them from harming themselves. This contrasts
with the Paternalistic approach to law, where the state is deemed
responsible for the citizen’s welfare. This would argue that harm should
be a basis fo criminal liability even when the individual is only a risk to
themselves, for example if they are suicidal, as the state seeks to protect
the welfare of individuals and deems them as not responsible for
themselves. This approach would therefore argue that harm could be
caused simply for offensive or immoral conduct. I, however, believe that
basing harm on offense is too subjective to create a sense of continuity
and fairness within the law, as the law would therefore be forever
changing with the changing attitudes of society, although this approach
may be beneficial in stopping individuals who cannot be responsible for
themselves to be safe and avoid harming themselves.
