RECKLESNESS, NEGLIGENCE AND MENS REA

CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Recklessness as Component of Mens Rea
• Negligence as Component of Mens Rea
• Is it justified to include Negligence in Mens Rea?

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       Reference / Further Reading.

INTRODUCTION

A person who may not intend to cause a harmful result can still be seen to have taken an unjustifiable risk in causing it. The mention of unjustifiable risk certainly suggests that certain risks are justifiable. For example, a doctor who performs a surgical operation may know that his acts might cause death, but we do not describe him as reckless unless the risk he took was an unjustifiable one. So, if a person takes an unjustifiable risk, he will be taken to have acted recklessly. In other words, to say it is reckless, it is necessary always to show that he took an unjustifiable risk.

OBJECTIVES

At the end of this unit, you will be able understand the following:

1. The line between intention and recklessness
2. Whether it is morally right to include negligence as a component of mens

• When one raises gross negligence to the level of criminal liability,

MAIN CONTENTS

• Recklessness as Component of Mens rea:

Recklessness has shades of meaning in English law, which have been called ‘Cunningham recklessness. In Cunningham,in the course of stealing money from a gas meter, the defendant damaged a gas pipe causing gas to seep through a wall into an adjoining flat where people resided. The defendant was charged with maliciously administering a noxious substance. The judge directed the jury that the dependant’s actions were malicious in the sense of being wicked. But the dependant successfully appealed to the court of appeal. The court adopted a principle that recklessness is the actual awareness of the risk of the prohibited consequence occurring. Following Cunningham, the subjective meaning of recklessness was established, that recklessness entailed the conscious running of an unjustifiable risk.

Therefore, recklessness is taken to be advertent when the accused has fore seen that the particular kind of harm might be done and yet he goes on to take the risk of it, for it was claimed that the dependant was not actually aware of the risk. This fact of awareness is taken to be the key element in bringing recklessness within the concept of Mens rea.

Negligence as Component of Mens rea

There are some who are not comfortable with the inclusion of negligence as a mens rea component. J.W.C. Turner is of this camp. He argued that negligence should not be part of mens rea. For him, the mental requirement of criminal responsibility is limited to voluntary conduct and foresight of consequences. Turner outlines three rules for determining the liability of a normal person at common law.

Rule 1 – it must be proved that the conduct of the accused person caused the actus reus.

Rule 11 – it must be proved that his conduct was voluntary.

Rule 111 – it must be proved that the accused person realized at the time that conduct would, or might produce results of a certain kind, in other words that he must have foreseen that certain consequences were likely to follow on his acts or omissions. The extent to which this foresight of the consequences must have extended is fixed by law and differs in the case of each specific crime. The lawyer must know, therefore, what these consequences must be in each crime.

Foresight of consequences relate to turners Rule 111. Within foresight of consequences, Turner only included intention and recklessness. He claimed that Rule 111 “does not cover the state of mind of a man who is inadvertent – (without the intention), or negligent in the proper legal signification of the word. According to him, negligence is a different state of mind from intention and recklessness:

It is the state of mind of a man who pursues a course of conduct without adverting at all to the consequences of that conduct, he does not foresee those consequences, much less desires them. The word further indicates that he is in some measure blame worthy, and that we should expect an ordinary, reasonable man to foresee the possibility of the consequences and to regulate his conduct so as to avoid them. This being the meaning of the word ‘negligence’ as a state of mind, the addition of an adjective, however vituperative, cannot properly alter it.

Turner claimed that the word ‘negligence’ has been misused and he regretted that it still subsists in the language of criminal law. He argues that negligence should not be considered as a type of Mens rea. It is rather, according to Turner, properly understood as inadvertence. Therefore, Turner classifies negligence as inadvertence. He argues further that it could be excluded from mens rea, since the word negligence and inadvertence can be used interchangeably.

However, H.C.A. Hart disagreed with turner who agreed that negligence is not a state of mind. The tendency to exclude negligence as a state of mind, according to Hart, stems from the fact that the word negligence and inadvertence are confused. Therefore, the understanding of negligence revolves around the presence of capacity. A negligent person has the capacity to conform to the law. He is held responsible for the capacity he failed to use or exercise when he should.

Is it justified to Include Negligence in Mens rea?

The real issue is whether it is morally right to include negligence in Mens rea. What is needed for responsibility is capacity that the person was in control and could have acted differently. The absence of capacity negated responsibility. The negligence person is blamed for not being careful; otherwise, he would not have acted negligently.

The moral for including negligence in Mens rea, according to Hart, rests on the conviction that a grossly negligent person could be held responsible for not taking some elementary precautions, even though he may not have acted deliberately. There is a standard of conduct the negligent person is expected to meet, a standard he failed to meet (although he had the capacity to do so) because he has been culpably careless. The law commission says: A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise.

Some would think that it is morally wrong to punish someone for ordinary carelessness. As Clarkson and Keating indicated, “negligence is not widely employed as a basis of criminal liability in English law, the most widely notable exception being careless driving contrary to the Road Traffic Act 1988” so, it is not every time negligent act.

SELF-ASSESSMENT EXERCISE

When does one raise negligence to the level of criminal liability?

CONCLUSION

As we know, intention, recklessness and negligence are forms of mental elements that fall under Mens rea. Intention and negligence stand to each other as two poles in opposite direction. And between them is recklessness. As R.A. Duff says one who causes death recklessly falls between these two extremes of liability. He is less culpable than the intentional killer more culpable than a merely negligent agent act in relation to a specified harm, which they choose to bring about. Therefore, there are certain expectations regarding people’s conduct. Very often it is said that a reasonable man is supposed to behave in such and such a way.

SUMMARY

It is argued in this regard that criminal liability for negligence violated the requirement for subjective principles, unless we want to make all offence to fall under strict liability. Where negligence is admitted, there is no proof that the agent chose to bring about the harm or that he was aware of it. Therefore, the fact remains that the required state of mind for conviction is absent and whatever suit might be claimed to impute on him is a matter of degree and judgment on which views may differ. In any case, the distinction between recklessness and negligence should be maintained.

TUTOR MARKED ASSIGNMENT

1. How can the line between intention and recklessness be drawn?
2. Is it morally right to include negligence as a component of Mens rea?

 REFERENCE / FURTHER READING

Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law Publishing.

Duff, R.A., (1990) Intention, Agency and Criminal liability: Philosophy of Action and the Criminal law, Cambridge, Basil Blackwell.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and Maxwell Ltd.