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In
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, criminal negligence is a surrogate state of mind required to constitute a ''conventional'' (as opposed to ''strictly liable'') offense. It is not, strictly speaking, a (
Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, many of the words and much of the vocabulary stem from English. L ...
for "guilty mind") because it refers to an objective standard of behaviour expected of the defendant and does not refer to their
mental state A mental state, or a mental property, is a state of mind of a person. Mental states comprise a diverse class, including perception, pain experience, belief, desire, intention, emotion, and memory. There is controversy concerning the exact definiti ...
.


Concept

To constitute a
crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
, there must be an ''
actus reus (), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' (Latin for "guilty act") accompanied by the ''
mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' (see
concurrence In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both ("guilty action") and ("guilty mind"), to constitute a crime; except in crimes of strict liability ...
). Negligence shows the least level of
culpability In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
,
intention Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
being the most serious, and recklessness being of intermediate seriousness, overlapping with
gross negligence Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negl ...
. 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 Willful blindness is a term used in law to describe a situation in which a person seeks to avoid civil or criminal liability for a wrongful act by intentionally keeping themselves unaware of facts that would render them liable or implicated. In ' ...
, where the individual intentionally avoids adverting to the reality of a situation. (In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, there may sometimes be a slightly different interpretation for willful blindness.) The degree of
culpability In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
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 definitions of
corporate manslaughter Corporate manslaughter is a crime in several jurisdictions, including England and Wales and Hong Kong. It enables a corporation to be punished and censured for culpable conduct that leads to a person's death. This extends beyond any compensation t ...
and in many common law jurisdictions of
gross negligence manslaughter In the English law of homicide, manslaughter is a less serious offence than murder in English law, murder, the differential being between levels of fault based on the ''mens rea'' (Latin for "guilty mind") or by reason of a partial defence. In En ...
). 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
court A court is any person or institution, often as a government 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 ...
attempts to establish what the accused was actually thinking at the time the ''actus reus'' was caused; #objective where the court imputes ''mens rea'' elements on the basis that a reasonable person 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 they have 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

"Reasonable person standard" does not pertain to a real person, but rather a
legal fiction A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales. Deve ...
. It is 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 meet. 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 a 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 they do 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 A child ( : children) is a human being between the stages of birth and puberty, or between the developmental period of infancy and puberty. The legal definition of ''child'' generally refers to a minor, otherwise known as a person younger ...
, and persons with a
physical Physical may refer to: *Physical examination In a physical examination, medical examination, or clinical examination, a medical practitioner examines a patient for any possible medical signs or symptoms of a medical condition. It generally co ...
or mental disability. Young and inexperienced individuals may not foresee what an
adult An adult is a human or other animal that has reached full growth. In human context, the term ''adult'' has meanings associated with social and legal concepts. In contrast to a " minor", a legal adult is a person who has attained the age of major ...
might foresee, a blind person cannot see at all, and an
autistic The autism spectrum, often referred to as just autism or in the context of a professional diagnosis autism spectrum disorder (ASD) or autism spectrum condition (ASC), is a neurodevelopmental condition (or conditions) characterized by difficulti ...
person may not relate to the world as a non autistic person. Cases involving infancy and
mental disorder A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitti ...
s as an
insanity defense The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic psychiatric disease at the time of the cr ...
potentially invoke
excuse In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, 7th ed. 2012 ...
s to criminal liability because the accused lack 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 In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
system following
conviction In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", which is consid ...
. Notwithstanding, 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.


Examples


United States

Examples of criminally negligent crimes are criminally negligent
homicide Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
and negligent endangerment of a child. Usually the
punishment Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
for criminal negligence, criminal recklessness, criminal endangerment, willful blindness and other related crimes is
imprisonment Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
, unless the criminal is
insane Insanity, madness, lunacy, and craziness are behaviors performed by certain abnormal mental or behavioral patterns. Insanity can be manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to ...
(and then in some cases the sentence is indeterminate).


English law

The leading statement to describe 'criminal negligence' at common law for the purposes of establishing a test for manslaughter in the law of England and Wales, is that of Lord Hewart in the case of ''R v Bateman'':
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 is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
, the ''mens rea'' is that of
malice aforethought Malice aforethought is the "premeditation" or "predetermination" (with malice (law), malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravation (law), aggravated murder in a few. Insof ...
, 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 () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
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 all 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/swimming, A will not have liability. But if many of the children were too inexperienced and/or a storm had been forecast, A might well be found liable by a jury.


Canada

The
Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
has a series of offences covering criminal negligence when bodily harm or death is caused. Such laws are sometimes used to prosecute cases of
dangerous driving In United Kingdom law, dangerous driving is a statutory offence. It is also a term of art used in the definition of the offence of causing death by dangerous driving. It replaces the former offence of reckless driving. Canada's Criminal Code ha ...
causing injury or death. The maximum penalties for criminal negligence causing bodily harm and death are 10 yearsCanadian Criminal Code, Section 221
/ref> (14 years if the conviction is for
street racing Street racing is typically an unsanctioned and illegal form of auto racing that occurs on a public road. Racing in the streets is considered an ancient hazard, as horse racing occurred on streets for centuries, and street racing in automobiles is ...
causing bodily harm) and
life imprisonment Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
, respectively.


See also

*
Death by dangerous driving Causing death by dangerous driving is a statutory offence in England and Wales, Scotland and Northern Ireland. It is an aggravated form of dangerous driving. It is currently created by section 1 of the Road Traffic Act 1988 (as substituted by the ...
*
Vehicular manslaughter Vehicular homicide is a crime that involves the death of a person other than the driver as a result of either criminally negligent or murderous operation of a motor vehicle. In cases of criminal negligence, the defendant is commonly charged ...
*
Dangerous driving In United Kingdom law, dangerous driving is a statutory offence. It is also a term of art used in the definition of the offence of causing death by dangerous driving. It replaces the former offence of reckless driving. Canada's Criminal Code ha ...


References

*Garfield, ''A More Principled Approach to Criminalizing Negligence: A Prescription for the Legislature'', (1009) Vol. 65 Tennessee Law Review, 875. {{DEFAULTSORT:Criminal Negligence Criminal law Elements of crime