Elements of an Offence; Mens rea Cont’d Introduction

Objectives Main Contents

• Recklessness
• Negligence
• Knowledge
• Malice s Conclusion Summary

Tutor Marked Assignment

Introduction

In the last unit you learned about ‘intent’, ‘intention’ as a form of mens rea. An unlawful intent is the intent to do something, which is morally or leally wrong. It is the intention to do the actual wrong done or do an unlawful act though not the one done. In this unit, you will learn additional forms of mens rea.

Objectives

When you have studied this Unit, you should be able to: 1.Explain what Recklessness is.

2. Explain the term Negligence

2.Distinguish between Intention, Recklessness and Negligence

4. Critique the doctrine of mens rea.

Main Content

Mens rea may take any of the following forms of intention, recklessness or negligence.

Recklessness

Recklessness is a lesser degree of fault than intentional wrongdoing but a greater degree of fault than negligence. It’s akin to rashness or being rash.

Recklessness has been described as:

• A state   of   mind   in   which   a   person   does   not   care   about   the consequences of his/her actions
• Conduct whereby the person doing the act or making the omission does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk
• A high degree of carelessness; e.g Doing something or omitting to do something, which omission or doing of the thing involves a grave risk to others, whether the doer or omitted realizes or not.

Over the years the Courts have also given ‘Recklessness’ several different shades of meaning, thus compounding our understanding of “Recklessness”.

Judicial interpretations of the term include the following:

• High degree of negligence for a conviction for manslaughter
• Actual awareness of the risk of prohibited consequence
• Failure to give thought to an obvious risk that the consequence would occur.
• Creation of a substantial and unjustifiable risk of harm to others and by conscious (and sometimes deliberate) disregard for or indifference to that
• Gross deviation from what a reasonable person would do.

NEGLIGENCE

Negligence implies .

A failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation

• Any conduct that falls below the legal standard established to protect others against unreasonable risk of harm.
• Culpable carelessness of inadvertence

Negligence implies an intentional conduct, which is not intended to be harmful but which an ordinary and reasonable prudent man would recognize as involving a strong probability of injury to others.

Categories of Negligence

The Nigerian law followed the Common Law on Manslaughter to quantify negligence into;

• Criminal negligence

This is reckless disregard to the lives of others e g: illegal surgical operation by a grossly incompetent and unqualified person which results in death: R v Ozegbe (1957)

• Grossest Negligence” R v Adedoyin (1955/56)

(c )     Gross Negligence: R v Akerele

See the Criminal Code section 317 and the Penal Code section 227 (7)

Intention, Recklessness and Negligence

Jerome Hall explains:

In intention, the actor chooses, decides, and resolves to bring a proscribed harm into being; he consciously employs means to that end.

The reckless person makes no such decision, resolution, and choice. But while he has not made that drastic decision, he has made an ominous one. He has chosen to increase the existing chance that a proscribed thing will 13

Mens rea is a general requirement for crime, but negligence is not  usually sufficient. In other words, negligence is not the kind of mens rea that characterizes the ordinary run of crime.

Statuary Consideration

In a number of cases statute may prescribe negligence as a form of mens rea for an offence. Examples are:

• Criminal Code 317 and Panel Code 227 (7). Both ascribe criminal liability for unlawful homicide due negligence i.e manslaughter or culpable homicide not punishable with death
• Criminal Code, section 343: reckless and negligence Acts

© Penal Code, section 196: Negligent Conduct causing danger  to property and person

• Criminal Code section 48 (2) and Penal Code section 415: Negligently and unlawfully permitting the escape of prisoners of war.
• Penal Code section 128: Public servant omitting to arrest or negligently permitting escape from custody
• Criminal Code section 138: A prison or police officer negligently permitting a person in lawful custody to escape
• Road Traffic Act, section 18: Driving on the Highway recklessly or negligently.

The Prison Warder from whom one of the prisoner escape when he took them out to work or a police constable who lossened the handcuff to allow a dangerous prisoner to attend to nature and the prisoner raised a false alarm of snake and escape were inefficient but did not negligently suffer of negligently permit such escape.

The court will not border itself to distinguish between the categories of negligence once it is satisfied that the result of conduct not have  occurred without rashness or negligence on the part of the accused person.

Self Assessment Exercise

I gross negligence the same as recklessness?

Knowledge

Knowledge is a concept of mens rea. The statutes creating some crimes may use certain words or phrases to denote knowledge as a condition precedent to a finding of gult or of criminality apportionment responsibility. Examples of such words are: Knowingly, willfully, knowingly and recklessly, knowingly and with intent to defraud, knowingly and fraudulently, willfully cases, permit, willfully refusing etc.

These words and others like them suggest that before you can gain conviction for the offence in question, you must at any rate prove  that the accused person knows the circumstances, which constitutes the offence.

Let us use examples:

Penal Code sections 48 (1), 120(2), 170, 225, 439, 480 etc

Criminal Code sections 104, 132, 140, 156, 178, 321, 356, 387, 389, 468, 472(2),476 etc.

Forms of Knowledge

Knowledge may be actual, imputed or constructive.

See sections 18, 178, and 317 (PENAL Code) and 427 (Criminal Code) Activity

Read the following cases:

Caldwell (1982) Act 341

Andrew v DPP (1937) Ac. 576

Steane (1949) KB 997     and Chandler (1963) Ac 763

From the reading of these cases, explain :

• Oblique intention
• Willful blindness

Attempt the following:

Is oblique intent part of intention or foresight? Is willful blindness recklessness?

Malice

Malice, as an element of Mens rea may be implied when such terms as maliciously, willfully, without lawful excuse are contained in the definition of the offence. Malice connotes Intention and Recklessness.

See the Criminal Code sections 305, 337, 443 – 447, 450, etc. Also the Penal Code, section 326.

Intention, Foresight and Recklessness.

Turner explains:

Intention cannot exist without foresight, but foresight can exist without intention.

For a man may foresee the possible or even probable consequences of his/her conduct and yet not desire them to occur; nonetheless, if he persists on his/her course he/she knowingly runs the risk of bringing about the unwished result.

Recklessness therefore is an advertent negligence, some kind of rashness, an attitude of mental indifference to obvious risk.

CONCLUSION

This unit is an introduction into the “Elements of the Offence” – that is ‘all the consequences and circumstances of the offenders act (or state of affairs). Which constitute the actius reus. This unit specifically has address the issue of mens rea

The motion that a court neither should nor find a person guilty of an offence against the criminal law unless he has a blameworthy state of mind is common to all civilized penal systems. It is  founded  upon respect for the person and for the freedom of human will. To be labeled a criminal the wrong doing must have been consciously committed. To subject an offender to punishment, a mental element as well as a physical element is an essential concomitant of the crime.

The statue creating the crime may express dispense with the requirement of mens rea

SUMMARY

Mens rea means “guilty mind” intension, knowledge, or recklessness with respect to all the elements of an offence together with any ulterior intent, which the definition f the crime requires.

You have learned the principles of mens rea, its different forms and how it may be injected. Any ambiguity you may face may be resolved when you read a few of the important decided cases on the matter.

Do not forget to distinguish ‘motive’ from intention’ and note the few instances when the former may be required.

TUTOR MARKED ASSIGNMENT

1. The Act is not guilty unless the mind is guilty. Discuss the validity of this statement with reference to decided cases

REFERENCES

• Slapper; G   :      The   English   Legal  System,    7^th   Ed,   Cavendish Publishing Ltd India
• Jefferson , M FGN: - The Criminal Code

-           The Penal Code

• Molan; The Constitution of the Federal Republic of Nigeria