Law and Fault

Question 1

Paragraph 1 to law and fault essay- definition

Answer 1

The oxford English dictionary defines faults as, “ Something wrongly done”,” Mistake”, and “Culpability”. Fault is a legal and moral term used to describe a persons culpability or blameworthiness or in other words, the person committing the offence.

Question 2

Paragraph 2 for law and fault essay- explanation

Answer 2

The UK has a fault based legal system and in English law a person a person’s liability is generally dependent upon their degree of fault. In criminal law, people are guilty, being to blame beyond all reasonable doubt. The burden of proof is so high as the D’s liberty is at risk. In civil law, the burden of proof is on the balance of probabilities, if you lose the argument then you are at fault.

Question 3

Paragraph 3 for law and fault essay- explanation/ example 1

Answer 3

• Fault is a marker of blame which imposes responsibility and therefore justifies the imposition of penalties or sanctions and identifies the person who should be punished.
• For example, if the D is proved to be at fault for a civil case, the C is awarded remedies due to their rights being breached

Question 4

Paragraph 4 for law and fault- explanation/ example 2

Answer 4

• Criminal law is mainly based on the principle of fault so a defendant will only be punished if it is proved beyond all reasonable doubt that they are to blame. This is based on the notion of individual responsibility- those who choose to behave the way they do, are responsible for the consequences.
• Different crimes have different levels of mens rea, highlighting the level of fault of the D. For example, a D who intends to harm someone should be more at fault than a D who is reckless to the harm. The D’s sentence should reflect this fault. In negligence under tort law, if the D’s breach is factual and legal cause, they will be at fault.

Question 5

Paragraph 5 law and fault- theorist 1

Answer 5

• Vera Bagelson explored the concept of victim fault and its relevance to criminal liability. She argues that the conduct of the victims should be considered when assessing the criminal liability of the D and that we should compare the V’s actions against the D’s, particularly in cases like self-defence and Loss of Control, where the victims actions can influence the legal outcomes

Question 6

Paragraph 6 law and fault- theorist 2

Answer 6

• K.J.M.Smith analysed the development of the subjective and objective fault in the law. His research highlights how judicial practices have evolved to incorporate both subjective and objective notions of fault. For example, the mens rea for murder was originally an objective test. The case of (DPPvsSmith) held,” that a person could be guilty of murder if the reasonable person could foresee death or serious injury”. The law developed following S.8 of the Criminal and Justice act 1967 where it changed to a purely subjective test. Subjective fault here is more appropriate as surely the D should have to foresee the harm, not the reasonable man.

Question 7

Paragraph 7 law and fault- theorist 3

Answer 7

• Andre Von Hirsch contributed to the retributive theory and the principle of “Just deserts”. He believes that the severity of the punishment should correspond to the moral blameworthiness of the D’s conduct. He focuses on the idea that the punishment must fit the crime, believing that the degree of fault or culpability should directly influence the severity of the punishment. This will ensure that the D’s receive fair and just treatment which avoids being excessively harsh or too lenient.