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Negligence, Gross Negligence and Recklessness
Standards of Blame - Further Thoughts
While considering murder, we concentrated on the concepts of intention and, to a lesser extent, foresight as the basis for allocating blame and, consequently, responsibility. ...
Negligence
At least when we discuss negligence, we are able to identify the standard against which we impose blame - the accused has failed to address his or her mind to the problem and has been inadvertent to the risk. ... Negligence is where there is a duty of care and a person fails to exercise such care, skill or foresight as a reasonable person in that situation would exercise. Negligence is scarcely mens rea at all in the sense of a defendants state of mind - it is an objective standard to which we are expected to live up.
Now we rarely use negligence as a basis for imposing criminal liability:
driving without due care and attention s. ... This makes the offence essentially one of negligence - would a reasonable person have made the same mistake?
Rationale
Generally writers have argued against criminal liability for negligence - the moral retributivists would suggest that it is not justified to punish unless the defendant has shown at least some appreciation of the risks being taken - the accused is seen as morally blameworthy. More pragmatically there is a certain scepticism that punishment for negligence deters anyone or promotes better standards of care. ...
Gross Negligence and Recklessness
In imposing criminal liability for a failure to recognise the risks, obvious to a reasonable person, there are at least two factors:
1. ... the seriousness of the potential harm
Only where the possible harm is more serious and the risk is more obvious, do we distinguish recklessness from carelessness and in such circumstances, there is more likely to be criminal liability. ... It can be regarded as simply gross negligence involving a major deviation from the standards of the reasonable man, not a state of mind at all. Alternatively it can be limited to those cases where the defendant subjectively recognises the possibility of harm, subjectively appreciates the risk but goes ahead anyway - in other words, instead of gross negligence, it involves the conscious running of an unjustifiable risk and as such is foresight. ... The trial judge directed the jury that drunkenness was no defence - the Court of Appeal allowed the appeal and that left the House of Lords to decide on the meaning of recklessness and the relevance of drunkenness. ...
If recklessness is a variety of subjective foresight, then under Majewski the defendant should be acquitted, as the intoxication raised a doubt as to whether the accused foresaw any risk to life. But if recklessness involved a more objective, gross negligence test, evidence of drunkenness would be irrelevant. ...
There is a powerful dissent from Edmund-Davies and Wilberforce, arguing that recklessness might be an everyday term but it is also a legal term, defined in countless cases as well as by reform committees. The statute was in fact drafted by the Law Commission who clearly had the Cunningham decision in mind - indeed quite recently the Law Commission have produced a proposal for the codification of the whole of the criminal law in which recklessness is still defined in this sense.
Precedent and reason might have been on the side of the dissentients but the Caldwell test of recklessness was upheld by the House of Lords in Lawrence where the accused was charged with causing death by dangerous driving contrary to s. ... You will recall that Hart, in arguing for liability for negligence, drew the distinction between those capable of observing certain standards and those who did not possess that capacity. ...
In 2003, the House of Lords looked again at Caldwell and the interpretation of recklessness. ... The interpretation of ‘recklessness’ by the majority in Caldwell was mistaken – basically because the Criminal Damage Act was not drafted to change the law as it had stood previously. ...
To what cases does this test of recklessness apply – or not? ... at common law, manslaughter, until 1994, could be committed recklessly but the House of Lords decision in Adomako means that we now apply a test of gross negligence .
Approximate Word count = 3434
Approximate Pages = 13.7
(250 words per page double spaced)
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