Additional Fault Elements (AQA A-Level Law): Revision Notes
Additional Fault Elements
Introduction to fault in criminal law
Most crimes require the defendant to have a degree of fault, known as mens rea. Different levels of mens rea attach to different crimes to indicate the level of fault required for a defendant to be guilty of that offence. Understanding these fault elements is essential for determining criminal liability and reflects the principle that criminal law should punish blameworthy conduct.
The main fault elements in criminal law are:
- Intention (the highest level of fault)
- Subjective recklessness
- Negligence (rarely sufficient for criminal liability)
- Strict liability (no fault required)
The concept of blameworthiness is fundamental to criminal law. The law distinguishes between different mental states to ensure that punishment reflects the defendant's moral culpability. Someone who deliberately intends harm is considered more blameworthy than someone who merely takes an unjustified risk.
Mens rea: intention and subjective recklessness
Mens rea refers to the mental element of a crime - the state of mind the defendant must have when committing the criminal act. The highest level of fault is intention, which can be further divided into two types: direct intent and oblique intent. Below this is subjective recklessness.
Intention has two distinct types:
- Direct intent - where the prohibited consequence was the defendant's aim and purpose
- Oblique intent - where the prohibited consequence was virtually certain and the defendant realised this
Understanding the difference between these two types is crucial for legal analysis.
Direct intent
Direct intent exists where it was the defendant's decision to bring about the prohibited consequence (the actus reus). It was their aim and purpose to achieve that result. This is the clearest form of intention - the defendant wanted the outcome to occur and acted deliberately to bring it about.
Key case: R v Mohan (1976)
- Established the definition of direct intent as the defendant's aim and purpose
- The defendant must have decided to bring about the prohibited consequence
Exam tip: When identifying direct intent in a scenario, look for evidence that the defendant's goal or objective was to achieve the prohibited result. Ask yourself: "Was this what the defendant was trying to achieve?"
Oblique intent
Oblique intent applies in situations where the prohibited consequence was not the defendant's primary aim, but was a virtually certain result of their actions. There are two elements that must be satisfied:
- The prohibited consequence (the actus reus) is virtually certain to occur, and
- The defendant realises this virtual certainty
This type of intention is more complex than direct intent because the defendant may not have desired the outcome, but they foresaw it as an inevitable consequence of their actions.
Key case: R v Woollin (1998)
- Established the test for oblique intent
- Both elements (virtual certainty and defendant's realisation) must be present
- This provides guidance to juries when direct intent cannot be established
Key case: R v Matthews and Alleyne (2003)
- Clarified that the court has the option to find intention if the Woollin tests are satisfied
- The court is not obliged to find intention even if both elements are present
- This gives juries discretion in applying the law
Exam tip: Oblique intent often appears in exam scenarios involving secondary consequences. Look for situations where the defendant's main purpose was something else, but the prohibited result was inevitable.
Subjective recklessness
Subjective recklessness represents a lower level of fault than intention. It exists where the defendant appreciates the risk of the prohibited consequence occurring and continues anyway. The defendant must have recognised that there was a risk, but decided to take that risk regardless.
This is sometimes known as 'basic intent', which can be confusing. When you encounter references to 'crimes of basic intent', this means crimes where recklessness is a sufficiently high level of mens rea for conviction. Don't confuse this terminology with direct or oblique intent!
Key case: R v Cunningham (1957)
- Established the test for subjective recklessness
- The defendant must personally foresee the risk of harm
- It is not enough that a reasonable person would have foreseen the risk - the defendant themselves must have appreciated it
Exam tip: To establish subjective recklessness, you must show evidence that the defendant actually foresaw the risk. This is a subjective test based on what this particular defendant was thinking, not what a reasonable person would think.
Evaluation: mens rea and blameworthiness
The different levels of mens rea reflect different degrees of blameworthiness. A defendant who intends a consequence is generally considered more blameworthy than one who is merely reckless. This is important because:
- It ensures punishment is proportionate to fault
- It allows for different sentencing for different levels of culpability
- It reflects society's moral judgments about wrongdoing
- It maintains fairness in the criminal justice system by distinguishing between those who deliberately cause harm and those who take unjustified risks
Negligence
Negligence is a failure to meet the standards of the reasonable person. Unlike intention and recklessness, negligence is based on an objective test - what a reasonable person would have done in the circumstances.
Negligence is rarely sufficient for a mens rea in criminal law because criminal liability typically requires a higher degree of fault. Criminal law generally requires proof that the defendant had a guilty mind, not merely that they failed to meet an objective standard.
However, there are important exceptions where negligence can form the basis of criminal liability.
Key exception: Gross negligence manslaughter
The main criminal offence where negligence suffices is gross negligence manslaughter. This requires negligence that goes beyond mere civil negligence - it must be so bad as to be criminal.
Key case: R v Adomako (1994)
- Established the test for gross negligence manslaughter
- The negligence must be so gross as to justify criminal liability
- The jury must consider whether the defendant's conduct was so bad it should be criminal
Exam tip: When considering negligence, remember it is assessed objectively against the reasonable person standard, unlike subjective recklessness which depends on what the defendant actually foresaw.
Transferred malice
Transferred malice is a legal principle that allows mens rea to be transferred from the intended victim to the actual victim in certain circumstances. This applies in two main situations:
- Where the defendant misses their intended target and hits someone else instead
- Where a domino rally effect occurs - the defendant's action against one person causes harm to another
The principle ensures that defendants cannot escape liability simply because they harmed the wrong person.
Key cases demonstrating transferred malice:
R v Latimer (1886)
- The defendant aimed a blow at one person but hit another
- His mens rea for the intended victim was transferred to the actual victim
R v Mitchell (1983)
- The defendant pushed someone in a queue
- That person fell against an elderly woman who was injured
- The mens rea was transferred through the chain of events
R v Gnango (2011)
- A more complex application involving a shoot-out
- Confirmed that transferred malice can apply in various scenarios
Limitation on transferred malice
Critical limitation: Mens rea can only be transferred where the actus reus remains the same. In other words, the type of crime must be the same for both the intended and actual victim.
If the defendant intended to commit one type of offence but actually committed a different type of offence, transferred malice will not apply.
Key case: R v Pembliton (1874)
- The defendant threw a stone intending to hit people
- The stone broke a window instead
- Mens rea could not be transferred because the actus reus changed from assault (against a person) to criminal damage (against property)
- The two offences have different actus reus elements, so transfer was not possible
Exam tip: When considering transferred malice, always check whether the actus reus remains the same type of offence. If the defendant intended one type of harm but caused a different type, transferred malice will not apply.
No fault: strict liability
Strict liability offences (SLOs) are crimes that require no fault on the part of the defendant. These offences do not require proof of any mens rea - the prosecution only needs to prove that the defendant committed the actus reus. The defendant's state of mind is irrelevant.
Purpose of strict liability offences
SLOs exist to regulate society and protect the vulnerable. They are typically used in areas where:
- Public safety is paramount
- Regulatory control is necessary
- Protecting vulnerable groups is essential
- Deterrence is important
- It would be difficult to prove mens rea
Strict liability offences are controversial because they can result in conviction without any proof of a guilty mind. However, they serve important regulatory and protective functions in society, particularly in areas involving public health, safety, and the welfare of vulnerable groups.
Examples of strict liability offences
The following table illustrates key strict liability offences and explains how each protects society:
| Case | Facts | How the SLO protects society |
|---|---|---|
| PSGB v Storkwain Ltd (1986) | The appellant had allowed prescription drugs to be supplied on production of fraudulent prescriptions. | Supply of medicines must be carefully regulated to protect public health. |
| Winzar v Chief Constable of Kent (1983) | D was 'found drunk on a highway', having been removed from a hospital by police officers who then arrested him in their police car. | Drunken and anti-social behaviour must be deterred, especially as mens rea might not be able to be formed if drunk. |
| Callow v Tillstone (1900) | A butcher was convicted of selling unfit meat, despite having had the meat certified as safe by a vet before the sale. | Food safety is paramount - consumers must be protected from contaminated food. |
| Harrow LBC v Shah (1999) | National Lottery tickets were sold to a person under the age of 16. | Gambling is a matter of social concern and children must be protected from its harms. |
| R v Prince (1875) | The appellant was charged with taking an unmarried girl under the age of 16 out of the possession of her father. He believed on reasonable grounds that the girl was aged 18. | Protection of children is a matter of social concern and must be prioritised. |
| Alphacell Ltd v Woodward (1972) | A factory owner was convicted of causing polluted matter to enter a river. He was unaware of the pollution. | Safety and pollution are matters of social concern requiring strict regulation. |
| R v Blake (1997) | D operated a pirate radio station without a licence. | Radio bands are used by emergency services and so any unauthorised use must be prevented. |
Key feature of SLOs: Notice that in many of these cases (e.g. Callow v Tillstone, Prince), the defendant had taken reasonable steps to comply with the law or had reasonable grounds for their belief. However, they were still convicted because these offences require no fault element - the actus reus alone is sufficient for conviction.
Exam tip: When identifying a possible strict liability offence in an exam scenario, consider:
- Is this a regulatory offence?
- Does it concern public safety, health, or protection of vulnerable groups?
- Would requiring proof of mens rea undermine the protective purpose of the law?
Remember that strict liability offences are the exception in criminal law - most serious crimes require proof of mens rea to reflect the defendant's blameworthiness.
Remember!
Key points to remember:
- Intention is the highest level of fault and can be direct (aim and purpose) or oblique (virtually certain consequence which defendant realises)
- Subjective recklessness requires the defendant to appreciate the risk and continue anyway - it is based on what the defendant actually foresaw
- Transferred malice allows mens rea to transfer from intended to actual victim, but only where the actus reus remains the same type of offence
- Strict liability offences require no mens rea and exist to regulate society and protect vulnerable groups
- Different levels of fault reflect different degrees of blameworthiness - intention shows more fault than recklessness, which shows more fault than negligence
Key terms to remember:
- Mens rea - the mental element of a crime
- Actus reus (AR) - the physical element of a crime
- Direct intent - aim and purpose
- Oblique intent - virtually certain consequence which defendant realises
- Subjective recklessness - appreciating the risk and continuing anyway
- Transferred malice - mens rea transferring from intended to actual victim
Critical cases to remember:
- R v Mohan (1976) - direct intent
- R v Woollin (1998) - oblique intent test
- R v Cunningham (1957) - subjective recklessness
- R v Pembliton (1874) - limitation on transferred malice
- PSGB v Storkwain Ltd (1986) - strict liability example