Criminal negligence
Encyclopedia
In the criminal law
, criminal negligence is one of the three general classes of mens rea
(Latin
for "guilty mind") element required to constitute a conventional as opposed to strict liability
offense. It is defined as an act that is:
, there must be an actus reus
(Latin for "guilty act") accompanied by the mens rea (see concurrence
). Negligence shows the least level of culpability
, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence
. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a 'malfeasance' where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of willful blindness where the individual intentionally avoids adverting to the reality of a situation. (In the United States
, there may sometimes be a slightly different interpretation for willful blindness
.) The degree of culpability
is determined by applying a reasonable person
standard. Criminal negligence becomes "gross" when the failure to foresee involves a "wanton disregard for human life" (see the discussion in corporate manslaughter
).
The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.
, an objective yardstick against which to measure the culpability of real people. For these purposes, the reasonable person is not an average person: this is not a democratic measure. To determine the appropriate level of responsibility
, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment. Hence, there is a baseline of minimum competence that all are expected to aspire to. This reasonable person is appropriately informed, capable, aware of the law, and fair-minded. This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills. When engaged in an activity outside their expertise, such individuals revert to the ordinary person standard. This is not to deny that ordinary people might do something extraordinary in certain circumstances, but the ordinary person as an accused will not be at fault if he or she does not do that extraordinary thing so long as whatever that person does or thinks is reasonable in those circumstances.
The more contentious debate has surrounded the issue of whether the reasonable person should be subjectively matched to the accused in cases involving children
, and persons with a physical
or mental disability. Young and inexperienced individuals may very well not foresee what an adult
might foresee, a blind person cannot see at all, and an autistic
person may not relate to the world as a "normal" person. Cases involving infancy and mental disorders
potentially invoke excuse
s to criminal liability because the accused lack of full capacity, and criminal systems provide an overlapping set of provisions which can either deal with such individuals outside the criminal justice system, or if a criminal trial is unavoidable, mitigate the extent of liability through the sentencing
system following conviction. But those who have ordinary intellectual capacities are expected to act reasonably given their physical condition. Thus, a court would ask whether a blind reasonable person would have set out to do what the particular blind defendant did. People with physical disabilities rightly wish to be active members of the community but, if certain types of activity would endanger others, appropriate precautions must be put in place to ensure that the risks are reasonable.
and negligent endangerment of a child. Usually the punishment
for criminal negligence, criminal recklessness, criminal endangerment, wilful blindness and other related crimes is imprisonment
, unless the criminal is insane
(and then in some cases the sentence
is indeterminate).
, may be found in the statement by Lord Hewart CJ in the case of R v Bateman (1925) 28 Cox's Crim Cas 33:
For a murder
, the mens rea is that of malice aforethought
, a deliberate and sometimes premeditated killing. But the larger percentage of deaths result from situations where there is either no intention to injure another, or only an intention to inflict less serious injury. The need is therefore to be able to distinguish between those who happened to be present when another died accidentally or through misadventure, and those who have contributed to the death in a way that makes them criminally rather than merely morally
responsible. For example, suppose that A, an expert in kayaking, organises an outing for local children who are learning the sport. They travel to a large lake but, after an hour of paddling, they are overtaken by a violent storm and some of the children drown despite the fact that all are wearing life-preservers. If all the kayaks, paddles and ancillary equipment are shown to have been in good condition, the storm had not been forecast by the meteorological services, and it was reasonable for these children to undertake this type of outing given their level of skill, A will not have liability. But if many of the children were too inexperienced and a storm had been forecast, A might well be found liable by a jury.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, criminal negligence is one of the three general classes of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty mind") element required to constitute a conventional as opposed to strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
offense. It is defined as an act that is:
- careless, inattentive, neglectful, willfully blind, or in the case of gross negligenceGross negligenceGross negligence is a legal concept which means serious carelessness. Negligence is the opposite of diligence, or being careful. The standard of ordinary negligence is what conduct one expects from the proverbial "reasonable person"...
what would have been reckless in any other defendantDefendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
.
Concept
To constitute a crimeCrime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, there must be an actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(Latin for "guilty act") accompanied by the mens rea (see concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...
). Negligence shows the least level of culpability
Culpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a 'malfeasance' where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of willful blindness where the individual intentionally avoids adverting to the reality of a situation. (In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, there may sometimes be a slightly different interpretation for willful blindness
Willful blindness
Willful blindness is a term used in law to when an individual seeks to avoid civil or criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him liable.For example, in a number of cases,...
.) The degree of culpability
Culpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
is determined by applying a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
standard. Criminal negligence becomes "gross" when the failure to foresee involves a "wanton disregard for human life" (see the discussion in corporate manslaughter
Corporate manslaughter
Corporate manslaughter is a criminal offence in English law, being an act of homicide committed by a company or organisation. In general, in English criminal law, a juristic person is in the same position as a natural person, and may be convicted for committing many offences...
).
The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
- subjective where the courtCourtA court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
attempts to establish what the accused was actually thinking at the time the actus reus was caused; - objective where the court imputesImputation (law)In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...
mens rea elements on the basis that a reasonable personReasonable personThe reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
with the same general knowledge and abilities as the accused would have had those elements; or - hybrid, i.e. the test is both subjective and objective.
The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.
Reasonable person standard
This is not a real person but a legal fictionLegal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
, an objective yardstick against which to measure the culpability of real people. For these purposes, the reasonable person is not an average person: this is not a democratic measure. To determine the appropriate level of responsibility
Moral responsibility
Moral responsibility usually refers to the idea that a person has moral obligations in certain situations. Disobeying moral obligations, then, becomes grounds for justified punishment. Deciding what justifies punishment, if anything, is a principle concern of ethics.People who have moral...
, the test of reasonableness has to be directly relevant to the activities being undertaken by the accused. What the ‘average person’ thinks or might do would be irrelevant in a case where a doctor is accused of wrongfully killing a patient during treatment. Hence, there is a baseline of minimum competence that all are expected to aspire to. This reasonable person is appropriately informed, capable, aware of the law, and fair-minded. This standard can never go down, but it can go up to match the training and abilities of the particular accused. In testing whether the particular doctor has misdiagnosed a patient so incompetently that it amounts to a crime, the standard must be that of the reasonable doctor. Those who hold themselves out as having particular skills must match the level of performance expected of people with comparable skills. When engaged in an activity outside their expertise, such individuals revert to the ordinary person standard. This is not to deny that ordinary people might do something extraordinary in certain circumstances, but the ordinary person as an accused will not be at fault if he or she does not do that extraordinary thing so long as whatever that person does or thinks is reasonable in those circumstances.
The more contentious debate has surrounded the issue of whether the reasonable person should be subjectively matched to the accused in cases involving children
Defense of infancy
The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility...
, and persons with a physical
Physical disability
A physical disability is any impairment which limits the physical function of one or more limbs or fine or gross motor ability. Other physical disabilities include impairments which limit other facets of daily living, such as respiratory disorders and epilepsy....
or mental disability. Young and inexperienced individuals may very well not foresee what an adult
Adult
An adult is a human being or living organism that is of relatively mature age, typically associated with sexual maturity and the attainment of reproductive age....
might foresee, a blind person cannot see at all, and an autistic
Autism
Autism is a disorder of neural development characterized by impaired social interaction and communication, and by restricted and repetitive behavior. These signs all begin before a child is three years old. Autism affects information processing in the brain by altering how nerve cells and their...
person may not relate to the world as a "normal" person. Cases involving infancy and mental disorders
Mental disorder defence
In the criminal laws of Australia and Canada, the defence of mental disorder is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.These are a statutory...
potentially invoke excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
s to criminal liability because the accused lack of full capacity, and criminal systems provide an overlapping set of provisions which can either deal with such individuals outside the criminal justice system, or if a criminal trial is unavoidable, mitigate the extent of liability through the sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
system following conviction. But those who have ordinary intellectual capacities are expected to act reasonably given their physical condition. Thus, a court would ask whether a blind reasonable person would have set out to do what the particular blind defendant did. People with physical disabilities rightly wish to be active members of the community but, if certain types of activity would endanger others, appropriate precautions must be put in place to ensure that the risks are reasonable.
United States
Examples of criminally negligent crimes are criminally negligent homicideHomicide
Homicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
and negligent endangerment of a child. Usually the punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
for criminal negligence, criminal recklessness, criminal endangerment, wilful blindness and other related crimes is imprisonment
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
, unless the criminal is insane
Insanity
Insanity, craziness or madness is a spectrum of behaviors characterized by certain abnormal mental or behavioral patterns. Insanity may manifest as violations of societal norms, including becoming a danger to themselves and others, though not all such acts are considered insanity...
(and then in some cases the sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
is indeterminate).
English law
The leading statement to describe 'criminal negligence' at common law for the purposes of establishing a test for manslaughter in English lawManslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
, may be found in the statement by Lord Hewart CJ in the case of R v Bateman (1925) 28 Cox's Crim Cas 33:
In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.
For a murder
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
, the mens rea is that of malice aforethought
Malice aforethought
Malice aforethought is the "premeditation" or "predetermination" that was required as an element of some crimes in some jurisdictions, and a unique element for first-degree or aggravated murder in a few.-Legal history:...
, a deliberate and sometimes premeditated killing. But the larger percentage of deaths result from situations where there is either no intention to injure another, or only an intention to inflict less serious injury. The need is therefore to be able to distinguish between those who happened to be present when another died accidentally or through misadventure, and those who have contributed to the death in a way that makes them criminally rather than merely morally
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
responsible. For example, suppose that A, an expert in kayaking, organises an outing for local children who are learning the sport. They travel to a large lake but, after an hour of paddling, they are overtaken by a violent storm and some of the children drown despite the fact that all are wearing life-preservers. If all the kayaks, paddles and ancillary equipment are shown to have been in good condition, the storm had not been forecast by the meteorological services, and it was reasonable for these children to undertake this type of outing given their level of skill, A will not have liability. But if many of the children were too inexperienced and a storm had been forecast, A might well be found liable by a jury.