Understanding Fault In Crimes

Can you explain a paragraph?

The vast majority of criminal offences are constituted simply upon proof of a breach of a criminal prohibition. For other crimes, specifi cally those of a stigmatic character, liability depends, in addition, upon proof of fault. In this chapter we examine the meaning of the different fault terms and how they are used both to grade offences in terms of seriousness and to fi lter those deserving of punishment from those which are not

what does stigmatic charcter mean?

can you explain another parapgraph?

At an earlier stage in our history, the notion of mens rea was broadly conceived as a synonym for ‘guilty mind’, a term loose enough to allow the conviction for, say, manslaughter of anyone thought to be blameworthy and, therefore, deserving of punishment. The modern approach conceives of mens rea , less expansively, as including only the state of mind expressly or impliedly referred to in the offence definition as accompanying or prompting the conduct in question. * The more common words used to describe this state of mind include intention, recklessness, wilfulness, knowledge and malice. Negligence, on this approach, is not, strictly speaking, a form of mens rea because it describes no state of mind, rather an (unacceptable) standard of conduct.

At an earlier stage in our history, the notion of mens rea was broadly conceived as a synonym for ‘guilty mind’, a term loose enough to allow the conviction for, say, manslaughter of anyone thought to be blameworthy and, therefore, deserving of punishment. The modern approach conceives of mens rea , less expansively, as including only the state of mind expressly or impliedly referred to in the offence definition as accompanying or prompting the conduct in question.

The more common words used to describe this state of mind include intention, recklessness, wilfulness, knowledge and malice. Negligence, on this approach, is not, strictly speaking, a form of mens rea because it describes no state of mind, rather an (unacceptable) standard of conduct.

Nevertheless negligence will be treated here as part of the family of mens rea words since, like the rest of the family, it signifi es fault, albeit in a different manner from the other members of the family. Crimes of negligence are counterposed to crimes of strict liability. Such crimes, as will be seen, may be committed without the need for the prosecution to prove mens rea in this slightly extended sense. Even for these crimes, however, a guilty mind of sorts must be established since the prosecution must disprove any excuse or justifi cation for which the defendant adduces evidence.

Nevertheless negligence will be treated here as part of the family of mens rea words since, like the rest of the family, it signifi es fault, albeit in a different manner from the other members of the family. Crimes of negligence are counterposed to crimes of strict liability.

Such crimes, as will be seen, may be committed without the need for the prosecution to prove mens rea in this slightly extended sense. Even for these crimes, however, a guilty mind of sorts must be established since the prosecution must disprove any excuse or justifi cation for which the defendant adduces evidence.

The link between blame, punishment and the notion of personal moral responsibility has not always been dominant in the criminal law. Blaming people for their conduct is a social practice. Each society devises its own practice of blaming which is, as often as not, an effect of practices of punishment rather than their cause. * As late as the eighteenth century the awful majesty of the criminal law was invoked to punish a pig for homicide and mice, rats and locusts for theft.

The link between blame, punishment and the notion of personal moral responsibility has not always been dominant in the criminal law. Blaming people for their conduct is a social practice. Each society devises its own practice of blaming which is, as often as not, an effect of practices of punishment rather than their cause. As late as the eighteenth century the awful majesty of the criminal law was invoked to punish a pig for homicide and mice, rats and locusts for theft.

If we operate upon the assumption that punishment is society’s mechanism for expressing blame, such a response may seem irrational, not to mention pointless and inappropriate. Such a link is not essential, however, for the operation of an effective criminal justice system. It has been suggested that the full moral enormity evoked by the concept of homicide may require the most awful retribution exacted against the responsible and irresponsible alike. A judge who dons a black cap to sentence a pig to a cruel and lingering death may succeed, better than mere summary execution, in satisfying the blood lust lurking beneath the skin of the retributivist justification. The execution of sentence may be just as effective as a human execution in deterring others and making the moral point that murder is wrong. It may be more so. What does it tell us about the implacable rigour of criminal justice that it will pursue, judge and execute even a dumb animal which kills an innocent?

Since blame, in modern liberal society, derives from the notion of personal responsibility, in theory we do not now blame those who, like children, lunatics and animals, are not responsible for their actions. We should be careful, though, not to get too carried away with the idea that full personal responsibility is, in our ‘civilised society’, an invariable prerequisite for either blame or punishment. Like all social practices fl exibility and ambiguity are encountered in the system of blaming. Sometimes the logic of ‘no blame in the absence of responsibility’ fails to record our society’s true politicised response to the causing of harm.

When we see the newspaper coverage of notorious murder trials involving serial killings or infant victims we may be tempted to think that where serious harm has been perpetrated, the public want blood and are not too choosy about whether it be the blood of the guilty or the innocent, of the responsible or the irresponsible. Sometimes even children, the insane and animals get short shrift from society when the harm they cause is particularly serious. Dogs are typically summarily ‘put down’ when they attack children; the insane are, typically, ‘hospitalised’ for violent killings. Children may be ‘incarcerated’ and demonised for serious offences. The rhetoric says that such a response is not a mark of blame and such treatment is not punishment. The reality is that those concerned would hardly know the difference.

There are two basic models of personal responsibility operative in the criminal law, namely choice and character theory. Both models reflect the presumption that liability, at least for serious offences, requires proof of fault. Choice theory has had its most influential expression in the work of H.L.A. Hart. It will be encountered again in the chapter on defences. It holds that ‘criminal liability is unjust if the one who is liable was not able to choose effectively to act in a way that would avoid criminal liability, and because of that he violated the law’. This concept of personal responsibility is one which informs the retributive aim of punishment. It reflects the generally held assumption that all citizens are free to conform to or infringe the law and must therefore take responsibility for the consequences of their own free choice

There are two basic models of personal responsibility operative in the criminal law, namely choice and character theory. Both models reflect the presumption that liability, at least for serious offences, requires proof of fault. Choice theory has had its most influential expression in the work of H.L.A. Hart.

It will be encountered again in the chapter on defences. It holds that ‘criminal liability is unjust if the one who is liable was not able to choose effectively to act in a way that would avoid criminal liability, and because of that he violated the law’. This concept of personal responsibility is one which informs the retributive aim of punishment. It reflects the generally held assumption that all citizens are free to conform to or infringe the law and must therefore take responsibility for the consequences of their own free choice

The rival model is character theory. It will also be covered in greater detail later. It holds that a person must bear responsibility not for his choices but for his character, since it is his person and not his deeds which is in the dock. On this model, responsibility is lacking wherever deeds are not a true refl ection of his (good) character. At this early stage it should be noted that character theory is a plausible basis for understanding negligence-based responsibility and certain defences such as loss of self control and duress. * It is less plausible, however, in the context of criminal responsibility generally. As long as we hold to the view that, whatever functions it has, punishment must be deserved, it seems clear that sometimes a proper basis for deciding what is deserved is what the defendant has chosen to do/could have been expected to do or not to do, rather than the kind of character his deed discloses

The rival model is character theory. It will also be covered in greater detail later. It holds that a person must bear responsibility not for his choices but for his character, since it is his person and not his deeds which is in the dock. On this model, responsibility is lacking wherever deeds are not a true refl ection of his (good) character. At this early stage it should be noted that character theory is a plausible basis for understanding negligence-based responsibility and certain defences such as loss of self control and duress.

It is less plausible, however, in the context of criminal responsibility generally. As long as we hold to the view that, whatever functions it has, punishment must be deserved, it seems clear that sometimes a proper basis for deciding what is deserved is what the defendant has chosen to do/could have been expected to do or not to do, rather than the kind of character his deed discloses

It is less plausible, however, in the context of criminal responsibility generally. As long as we hold to the view that, whatever functions it has, punishment must be deserved, it seems clear that sometimes a proper basis for deciding what is deserved is what the defendant has chosen to do/could have been expected to do or not to do, rather than the kind of character his deed discloses

However, it is less plausible in the context of criminal responsibility generally. As long as we hold to the view that, whatever functions it has, punishment must be deserved, it seems clear that sometimes a proper basis for deciding what is deserved is what the defendant has chosen to do or could have been expected to do or not to do, rather than the kind of character his deed discloses

If freely choosing to do wrong is the basis for desert in punishment then one would expect liability to be predicated upon the prosecution proving the existence of some form of mental state, for example intention, knowledge, or awareness, on the part of the wrongdoer. This mental state or attitude accompanying wrongdoing is termed subjective fault. The accused is at fault in having this state of mind. If bad character is the basis for desert in punishment, proof of an accompanying mental attitude is not so crucial. People can show bad character through their actions both by thinking and by not thinking of the wrongfulness of their action

So, A shows subjective fault by directing his car at his enemy in order to kill him. His mental state is that of intention. A shows objective fault by driving his car in such a way that ordinary reasonable people would realise, although he did not, that he was subjecting other road users and pedestrians to the unjustifi ed risk of harm. We term this type of fault negligence. Negligent conduct is blameworthy not on account of the actor choosing to do wrong but on account of the fact that he fails to behave like ordinary people.

So, A shows subjective fault by directing his car at his enemy to kill him. His mental state is that of intention. He shows objective fault by driving his car in such a way that ordinary reasonable people would realise. However, he did not, that he was subjecting other road users and pedestrians to the unjustified risk of harm. We term this type of fault negligence. Negligent conduct is blameworthy not on account of the actor choosing to do wrong but because he fails to behave like ordinary people.

t is not universally accepted that criminal responsibility should depend upon proof of subjective fault. On the one hand, it will usually be difficult to prove what was in a person’s mind at the time of acting. They may not even know themselves. On the other, requiring subjective fault ignores the fact that sometimes we feel justified in blaming people for lacking a criminal ‘intent’. People who fail to consider how their conduct may affect others distance themselves morally from reasonable people. They exhibit a dangerous and perhaps frightening character defect. It is perhaps not surprising that criminal doctrine reflects an uneasy tension between these two forms of fault.

it is not universally accepted that criminal responsibility should depend upon proof of subjective fault. On the one hand, it will usually be difficult to prove what was in a person’s mind at the time of acting. They may not even know themselves. On the other, requiring subjective fault ignores the fact that sometimes we feel justified in blaming people for lacking a criminal ‘intent’. People who fail to consider how their conduct may affect others distance themselves morally from reasonable people. They exhibit a dangerous and perhaps frightening character defect. It is perhaps not surprising that criminal doctrine reflects an uneasy tension between these two forms of fault.

It is not universally accepted that criminal responsibility should depend upon proof of subjective fault. On the one hand, it will usually be difficult to prove what was in a person’s mind at the time of acting. They may not even know themselves. On the other, requiring subjective fault ignores the fact that sometimes we feel justified in blaming people for lacking a criminal ‘intent’. People who fail to consider how their conduct may affect others distance themselves morally from reasonable people. They exhibit a dangerous and perhaps frightening character defect. It is perhaps not surprising that criminal doctrine reflects an uneasy tension between these two forms of fault.

Increasingly, statutes comprise fault elements which do not require proof of a subjective mental element. A recent example in which objective fault suffices for criminal liability is the (statutory) offence of rape. Under the common law, the fault element of rape was recklessness, which was defined to require subjective fault. The prosecution bore the burden of proving that the accused did not honestly believe the victim to be consenting, that is, of proving an attitude of mind. Under the new definition, the prosecution task is easier since the accused’s belief in the fact of consent must now be a reasonable one.

The jury are entitled to discount the accused’s honest belief, in other words, if the circumstances are such that reasonable people would not have formed such a belief. People who do not take care to ensure others are consenting to their sexual advances or harbour unrealistic ideas about ‘what women want’ are blameworthy precisely because they are inexcusably out of step with society’s core values of respect for others.

It is important, therefore, when analysing individual crimes, to interpret whether the fault required by the offence is subjective or objective. As a rule of thumb, the more serious the crime the more likely it is that subjective fault will be required although, in truth, the difference between subjective and objective fault may be more apparent than real.

It is important, therefore, when analysing individual crimes, to interpret whether the fault required by the offence is subjective or objective. As a rule of thumb, the more serious the crime the more likely it is that subjective fault will be required although, in truth, the difference between subjective and objective fault may be more apparent than real.