A-Level Law - Paper One: Concepts- Fault
Model Answer
Fault is defined as the intentional or negligent failure to act according to reasonable duty or
according to the rules of law. This is further emboldened by the Latin phrase “actus reus non
facit reum nisi mens sit rea”, which many principles of law are based upon. It expresses the
importance of fault in law as it tells that both a guilty act and a guilty mind must be present
for liability. In addition to the phrase itself, use of terminology such as ‘guilty’ and ‘liable’, and
the notions of retribution, punishment and justice in law are synonymous to fault and further
prove its importance. It is clear from the fundamentals of the legal system that law is already
widely fault based.
Criminal-
Criminal liability is based on the idea that the defendant is at fault as he has committed an
offence with a criminal mindset. Despite this notion, is not always the case in criminal law as
strict and absolute liability offences do not need mens rea for conviction, and there are other
areas which do not give a complete picture of fault to convict.
Mens rea is described as the barometer of fault in criminal law and it is arguably the element
which most obviously shows these ideas. The higher level of seriousness the crime is, the
higher the level of mens rea is needed. Intention itself is only held for the most serious of
crimes, such as murder and s.18 of the OAPA 1861. There are two types of intention, direct
intention, which is where the defendant embarks on a course of conduct to bring about a
result which in fact occurs, and oblique intention, which is where the defendant embarks on
a course of conduct to bring about a desired result, knowing that the consequence of his
actions will also bring about another result. For example, someone who intends to kill their
victim will be charged with murder, which was seen in R v Janjua and Choudhury, whereas if
the defendant was negligent, they would be charged with gross negligence manslaughter,
which was seen in R v Adomako. The different levels of intention reflect fault, and prove that
the law is fault based.
However, strict and absolute liability offences are not assessed by mens rea with the offence
being completed solely through the actus reus, showing that the law is not completely fault
based. In addition to this, they have no defences for them. These offences exist in all areas
of society and are often encroached in public protection, such as driving and environmental
offences. One example of a strict liability offence would be Smedleys Ltd v Breed in which
despite having shown that they had taken all reasonable care, the defendant was guilty of
selling food not to the standard required. This clearly shows that not all law is based on fault.
The difference between strict and absolute liability is that absolute liability goes further and is
not committed voluntarily. This was seen in the case of Larsonneur who committed the
offence under the Aliens Order 1920 of being an illegal alien; she was then deported from
the country into Ireland without any choice in the matter. These offences existing without
need for mens rea prove that not all law is fault based, but this is not necessarily a bad thing
as strict and absolute liability offences regulate society and protect the vulnerable.
Civil-
Civil liability is most commonly found in negligence, which is one of the largest areas of civil
law. It is based on the defendant breaching a duty of care owed to the victim and it is within
this breach that fault lies.
Model Answer
Fault is defined as the intentional or negligent failure to act according to reasonable duty or
according to the rules of law. This is further emboldened by the Latin phrase “actus reus non
facit reum nisi mens sit rea”, which many principles of law are based upon. It expresses the
importance of fault in law as it tells that both a guilty act and a guilty mind must be present
for liability. In addition to the phrase itself, use of terminology such as ‘guilty’ and ‘liable’, and
the notions of retribution, punishment and justice in law are synonymous to fault and further
prove its importance. It is clear from the fundamentals of the legal system that law is already
widely fault based.
Criminal-
Criminal liability is based on the idea that the defendant is at fault as he has committed an
offence with a criminal mindset. Despite this notion, is not always the case in criminal law as
strict and absolute liability offences do not need mens rea for conviction, and there are other
areas which do not give a complete picture of fault to convict.
Mens rea is described as the barometer of fault in criminal law and it is arguably the element
which most obviously shows these ideas. The higher level of seriousness the crime is, the
higher the level of mens rea is needed. Intention itself is only held for the most serious of
crimes, such as murder and s.18 of the OAPA 1861. There are two types of intention, direct
intention, which is where the defendant embarks on a course of conduct to bring about a
result which in fact occurs, and oblique intention, which is where the defendant embarks on
a course of conduct to bring about a desired result, knowing that the consequence of his
actions will also bring about another result. For example, someone who intends to kill their
victim will be charged with murder, which was seen in R v Janjua and Choudhury, whereas if
the defendant was negligent, they would be charged with gross negligence manslaughter,
which was seen in R v Adomako. The different levels of intention reflect fault, and prove that
the law is fault based.
However, strict and absolute liability offences are not assessed by mens rea with the offence
being completed solely through the actus reus, showing that the law is not completely fault
based. In addition to this, they have no defences for them. These offences exist in all areas
of society and are often encroached in public protection, such as driving and environmental
offences. One example of a strict liability offence would be Smedleys Ltd v Breed in which
despite having shown that they had taken all reasonable care, the defendant was guilty of
selling food not to the standard required. This clearly shows that not all law is based on fault.
The difference between strict and absolute liability is that absolute liability goes further and is
not committed voluntarily. This was seen in the case of Larsonneur who committed the
offence under the Aliens Order 1920 of being an illegal alien; she was then deported from
the country into Ireland without any choice in the matter. These offences existing without
need for mens rea prove that not all law is fault based, but this is not necessarily a bad thing
as strict and absolute liability offences regulate society and protect the vulnerable.
Civil-
Civil liability is most commonly found in negligence, which is one of the largest areas of civil
law. It is based on the defendant breaching a duty of care owed to the victim and it is within
this breach that fault lies.
