Criminal Law Essay Question Student ID: 140131356
Criminal Law | Formative Assessment
Essay question
The criminal law includes two forms of criminal fault, namely subjective fault and objective fault. Some
commentators believe that objective fault should not be recognised by the criminal law as it is unjust.
Others believe that the criminal law’s purposes would be better advanced by increasing the number of
crimes for which objective fault suffices. What is your view, and why?
Within the common law’s institution governing the criminal justice system, the critical focus in
determining the liability of any person accused of a crime or for a series of crimes committed rest upon
the ultimate state of mind of the individual or for other cases when such mental attitude are absence, the
court may within its powers – exercise its objective reasoning based on established presumptions or
rebuttals to determine whether the rule of law had been breached through the construction of the
material facts strongly suggestive of a defendant’s liability. The fundamental principle of criminal law
requires constructing linkages of between the physical element and the mental element before a person
can be held liable for a crime. Whilst the physical element, actus reus, may substantiate obvious points
to a criminal act suggestively falling within the category of one form of crime or another, however, as
understood through the developments since the 1600s, the English courts maintained and held that acts
alone without proving the mental state of the person for performing the prohibited act, will by no means
result in proving or incriminating the person for criminal liability.
In all criminal law cases, the burden of proof weighs heavily or entirely upon the Crown Prosecution to
establish the necessary evidences of the mental state, mens rea, of the person held liable for the crime
fault, or otherwise, from the viewpoint of the defense counsel - to provide the contrary elements to
disprove the mental elements purported in the assessed crime act when presenting criminal law
defenses. It is of paramount importance and necessity for the prosecution to proof that the prohibited act
committed was accompanied by the awareness of the accused criminals’ knowing, purpose or intention
to pursue such an act that has attributes of criminal liability before determining the full extent of the guilt
beyond any reasonable doubt.
The requirements to prove the mental state – the guilty mind – of a person accused of a particular act of
crime bearing liability leads to difficulties and challenges faced by the criminal justice court in applying a
singular approach to determine criminal fault, and consequentially vis-à-vis – the definitive punishments
to be meted out for the criminal fault committed. Given that punishment becomes the resultant outcome
when a person is found guilty of a crime, it therefore brings about the issue as well as varying opposing
opinions on the standards of assessment to apply that befits the criminal justice system.
The key question raised here within the current topic of concern is whether the use of objective fault
assessment should be disused or totally discarded by the criminal justice system in determining the
proving of the guilt of the culprit at hand, or for the purpose of formulating arguments in defenses against
the blame of the fault occurrence. Whilst claims by certain critcs of the system alleges the unfairness or
injustices brought about through the application of the objective fault standards, it is however imperative
that the criminal justice system accommodate for the much needed conduit to distinguish fault types
across those two broad categories delineated according to the subjective fault line and objective fault
line standards.
The distinction helps to structure as well as constraint the relevant punishment outcomes to achieve the
right balance towards justification and safeguard of individual liberty, rights and social order on one hand
where subjective fault assessment may typically work well for traditional crimes as defined within the
statutory instruments, and that on the other hand – the availability and relevance of objective fault
standards may provide coverage across those acts whereby the intent does not exists but nevertheless,
as an important requirement to protect public interest for matters requiring duty of care – the objective
fault standard ensures that the justice system extends the powers of the law to reach across all strata of
a civil society to govern the peace, stability and social order for its greater good.
Having mentioned the broad generalities introduced above, it shall now be useful to begin first with a
short overview on the use, function as well as purpose of subjective fault determination for criminal
liability and punishment prior to establishing a comparative analysis against objective fault determination
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Criminal Law Essay Question Student ID: 140131356
to expose whether such a supposedly bias claim of “objective fault should not be recognised by criminal
law as it is unjust” should really hold ground for these non-supporters of the objective fault standards.
Subjective fault crimes are determined by the conscious choice undertaken by the defendant to perform
the prohibited acts. The application of subjective fault determination is used in most cases concerning
traditional core crimes. The general requirement in proving a defendant is guilty of committing a crime by
subjective fault is that it must be accompanied by the mens rea of the person involved in carrying out the
prohibited act. In such cases, the burden weights heavily upon the prosecution to prove that a defendant
held the mental attitude to commit the stated crime either through intentions and/or through recklessness.
For example, in murder cases – the prosecution will need to prove that a defendant had the intention to
hurt or kill the victim. In theft cases, the defendant had knowledge that their actions carried the mental
attitude that dishonesty was involved. Alternatively, in criminal damage, handling of stolen goods, sexual
offenses and various other form of subjective fault crimes defined by the statutes covering criminal law –
the defendant had in one way or another, the required knowing that by proceeding to perform the given
prohibited act, that he committed the offense which was otherwise stipulated clearly by the law as a
prohibited act that comes with punishment when it does happen.
Comparatively, the assessment of objective faults relies on evidences of prohibited acts committed by a
defendant through negligence or careless acts. An objective fault crime opposes the earlier need to
establish any conscious choice by the person performing the prohibited act. The cause for the blame
does not require the prosecution to find the presence of any mental element of the defendant at the time
when the act is committed. Instead, it becomes a case of a criminal act being committed based on the
material facts and constructed evidences that point to the failure to conform to the accepted standards of
behavior and thus resulting in a consequential effect whereby the defendant becomes liable for the fault
caused. The standards of assessment of objective fault, namely negligence and carelessness;
formulates reasoning based on the failure of the person to conform according to the standard behavior
against what an ordinary and reasonable person would have done.
It is here within this doctrine that gave rise to much contention and disagreements by critics that the
objective fault standards had been held to be unjust and unfair. Much of the objection to these is tied to
the correlation between the proving of a fault and the disproportionality of the accompanying outcome of
punishment desert. To some extent, these critics may not be entirely wrong and that their views should
be taken into account for the important considerations they had placed upon the need for fairness in the
judicial system. The rhetoric held by these critics is somewhat akin to the old adage saying of “how long
is a piece of string?”
Criminal indictment resulting along such fault lines of negligence or carelessness are not given in a
straightforward manner and pose much difficulties in proving due to the absence of the requirement on
the mens rea attribute for the fault. Instead, it relies on varying standards of societal norms as in the
standards and practices of the common men, or by what the ordinary reasonable man would have done
in comparison with the person held at fault. Sometimes – the end result of a violation caused may be
due to lacking in the maturity of the standards available for any person to use as the guidance for
conduct or in other cases, there may be an absolute absence of thoroughly clear and defined standards
to follow, which leaves the same, would have been, ordinary and reasonable person in a situation to
continue performing the course of actions on that negligent or careless path leaving it to randomness or
chance, that may inevitable result in fault causation bearing down criminal liability upon the person
involved.
In the case of McCrone v Riding (1938) for example – this case dealt with the accused’s driving that was
determined to have been conducted in the careless driving nature, and it was held that his driving would
inevitably be considered as negligently careless if he failed to come up to the reasonable standard
expected as with any other reasonably experienced driver. The effect of the law would be viewed by
critics of the objective fault standards as being harsh given that the subsequent appeal made by the
prosecution to the high court brought about a reversal of the previous court’s decision and held that
regardless of the standard of any driver’s skill, the courts held that all drivers are to exercise “due care
and attention” when operating a motor vehicle. As such, the bearing of the judgment makes it such that
the higher court can choose to ignore the characteristics of the accused, of his reasonable lack of ability
as with most learner drivers, but to rather apply the strict standards of objective fault principle following
the statutory law applicable under the Road Traffic Act, per Lord Hewart L.C.J – “the driver, whoever he
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Criminal Law Essay Question Student ID: 140131356
may be, experienced or inexperienced, must see what he is about”. In doing so, it leaves little room for
defense by the accused regardless of the fact of whether he had the appropriate skills, knowledge and
know-how to avert landing into a fault liability situation.
In the higher order of the degree of objective fault crimes, there is gross negligence manslaughter which
leads to an even more difficult scenario for the judiciary to resolve between directing the jury to facts
pointing out the guilty state of the person implicated by the outcome of the death caused, or taking an
objective account of the contributing factors within that space of time and purpose to permit a defense of
innocence. A leading case within this area giving possible arguments and contentious viewpoints may be
drawn from R v Adomako (1994) – whereas in this case, the appellant whom was an anesthetist had his
conviction upheld by the House of Lords for gross negligence manslaughter, causing the death of a
patient during an eye surgery.
Whilst many of the background facts surrounding the lead up to the death of the patience point clearly to
the breach of duty of care towards the patient resulting in the victim’s death – it is however, not
insufficient to undertake an alternative analysis of the case to understand that there may also possibly
be certain available mitigating reasons behind the undesired death event presented by circumstantial
evidences such as equipment failure beyond the accused’s ability to recognise, inadequacy of the
medical procedural controls or limitations of the established checks upon which is beyond his reasonable
assessment and control at the time of the incident occurrence.
However, the directions given by the Court of Appeal to the jury was to apply the test for (1) whether
there was an existence of duty, (2) whether there was then a breach of duty leading to death, and (3)
and that if it holds true, then whether there would have been gross negligence amounting to criminal
conviction for involuntary manslaughter. Unfair or unjust as it may seem for the accused whom had his
appeal against the criminal nature of the negligence quashed, it clearly points out that where death is the
end result arising from an event whereby another person was involved in the discharge of duty, the
courts remain strict in its application of the test requirements to assess the liability for objective faults
and this leaves limited room for the reasonable man to offer credible defense for something which he did
not plan nor had wished to happen. Therefore, to some extent there may exist some amount of truth in
terms of how the objective fault standards draws out a seemingly unfair and tilted justice situation for
persons accused of crimes amounting to criminality.
Having discussed this far, one also have to make further analysis across other types of cases whereby
the law applies the objective fault standard to derive supporting elements for the prosecution’s side of
the case. There are cases brought to the courts where acts of negligence or carelessness had taken
place, and whereby for these types of case - the lack of evidence for mens rea in the crime by an
accused, is alternatively proven through applying objective fault determination based upon the material
facts and leading to interpretations pointing to crimes caused through acts of omission or that these
crimes fall within the definitions of strict liability stated in the statutes.
Nevertheless, it must be also be critically understood that objective fault standard in assessing criminal
liability carries its own usefulness, applicability and offers extensive coverage of the law across far
reaches of society to benefit it as a whole. To take on a more liberal approach on the applicable use of
this standard, we can broadly view that the objective fault standard can help a court determine conviction,
in the absence of the mental state of a criminal, across multiple areas of liability situations whereby duty
of care is required of an individual or an organization to others within the society. In the absence of
performing any such duty of care, it gives rise to criminal fault by these individuals or the organization at
hand. These situations include those of (1) duties arising of out a relationship, (2) contractual duties, (3)
creation of dangerous situation and (4) duties arising from statutes.
In criminal liability imposed by duties arising out of a relationship, it sets down the order of responsibility
owed by persons within a relationship and their accountability towards the well being of each other.
Failing which, and where it leads to injury or death – then the other person with whom, should have
exercised the right and proper care as any other reasonable man should or would do, thus by not doing
so that it caused the resultant injury or death, that this person will be held liable for the criminal act which
is strictly considered as a prohibited act of crime.
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Criminal Law Essay Question Student ID: 140131356
For example, in the case of R v Hood (2003) – the failure by the husband to have his sick wife treated for
3 weeks after she had taken a fall, had directed the courts to decide that the failure to act, i.e. the
omission by D amounted to gross negligence for manslaughter despite the fact that it was the wife who
had refused to seek treatment for the accident. Such decision underlie the clear fact that where persons
are found to be within an existing relationship, they are therefore bound by the duties arising out of the
relationship and where an omission to the duty of care had occurred, that shall amount to serious gross
negligence for injury or death as determined by the outcome of the event at hand.
Similarly, in R v Pittwood (1902) the accused had a duty bound by his employment contract between
himself and the railway company that had employed him. The failure to exercise the necessary care to
shut the level crossing gate resulted in the death of the train driver when the train collided with a horse
cart that went onto the railway track through the open gate that was not shut down. The case would not
have gained ground if it had gone on trial taking on the basic arguments of intention and/or recklessness
as the gatekeeper clearly had made no intentions to commit an act of harm to the victim nor did he
consciously acted in a reckless manner. However, upon application of the objective fault standard – it
was established that the presented evidences pointed to gross negligence manslaughter by the accused
and thereby leading to the courts upholding the decision of the guilt of the accused.
In situations concerning creation of a dangerous situation, R v Miller (1982) can be examined to
understand how the House of Lords had decided the guilt of the accused, Miller whom was a vagrant,
caused an accidental fire in a house and subsequently moved into another room but resulting in
extensive damage caused to the house. Here, it became clear by objective standard of assessment that
an action creates a duty of care by any other person, which conversely also means a failure to act may
constitute as being a criminal liability of the accused. Per Lord Diplock’s dicta – “conduct which consists
of failing to take measures that lie within one's power to counteract a danger that one has oneself
created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient
of the offence.”
Negligence offences can appear to be more distinctive in the area whereby statutory laws impose duties
for care in the course of dealings between parties. The objective fault standard of assessment allows for
a fairly good balance to determine clear acts of omission leading to determination of negligent acts
holding an accused liable for fault. For example, in R v Litchfield (1998) – the appeal case to the Court of
Appeal was obvious in its facts that it was an offense against the statutory law governing negligent
endangerment of a ship. The Court of Appeal, in its direction of the jury pointed out to further objective
facts that were crucial for its judgment decision asking the jury whether if the cause of death of the three
crew members could be attributed to gross negligence by the ship’s captain and by which it was held
that the accused was liable.
To sum up and in the making of the necessary conclusion on the discussed topic, it may hold true that in
certain legal cases occurring especially those originating out of civil matters, the restrictiveness and
inflexibility of the objective fault standard imposed by the courts does severely and heavily penalise an
individual or an organisation for the fault outcomes. The resultant fault situation may often have been
beyond the capability of the accused to effect exercise of care control or to have reasonable foresight to
prevent such kinds of negative developments and consequentially unfairly putting the blame upon these
individuals to hold them accountable as well as to be prosecuted under criminal acts. However, the
reality of the world consists of many moving parts that constantly change as the civil society progresses
along lines of political, socio-economic and technological advancements. Should the judiciary decide to
reject or disassociate the application of objective fault standard for assessment for criminal liability, it
would almost certainty leave a gap in the course of justice in deciding on cases where mens rea is found
absent while a negligent event had occurred leading to harm. This would inadvertently leave such fault
cases having no formulated approach to decide on the judgment to be made by the courts, and vis-à-vis
in meting out the punishment desert in accordance to the magnitude of the crime cast upon the guilty
party. Without the availability of the objective fault standard, an accused person whom stands innocent
would also be highly affected by the lack of avenue to develop the necessary defense against the crime
that he had been accused of.
In my opinion, I would view that it is not a exactly practical solution for the courts to make drastic
increase to the number of crimes for which the objective fault suffices. The key consideration is that in
the long run, this standard will no doubt continue to remain as the norm in the courts’ practices as it
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Criminal Law Essay Question Student ID: 140131356
functions as an essential tool for the courts to manage criminal liability for crimes that has no “conscious
choice”. Beyond time, the doctrine may well improve through a systematic evolution and refinements to
bring about ways in reconciling the balance between fairness and justice on one hand, and yet being
able to cater towards the needs of the wider society needs on the other without compromising the rights,
freedom and liberty of the common man it stands to protect. The rhetoric for which this suggestion been
made - goes down to the prudent fact that not all cases that arise share exactly the same material facts
or fitting context leading to the their respective fault occurrence. As such, each specific case that arises,
will often present its own challenges and problems that may consist of overlapping fault liability as well
as divergent factors with varying degrees of seriousness, to which it then demands for differing weight of
punishment to be applied. Therefore, it is not by increasing the increasing the number of crimes by which
the objective fault can satisfy that will advance the purpose of the law, but that it should be by increasing
the certainty that can be achieved through better refinement of the use of objective fault standards that
will elevate the law beyond its higher purpose.
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