Analysis On Criminal Law

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Criminal Law


As started earlier, crime has been defined as an anti-social, immoral or sinful behavior which is contrary to the cherished norms, beliefs, customs and traditions of a given society. According to another school of thought , crime is an act which is particular social group regards as sufficiently menacing to its fundamental interests to justify formal reaction to restrain the violation .Stephen has defined ‘crime’as an act which is both forbidden by law and revolting to the normal sentiments of the society.

Crime’ is any from of conduct which is declared to be socially harmful in a state and as such forbidden by under pain of some punishment. Therefore, Tappan has defined crime as, an or omission in violation of criminal law, committed without any defense or justification and penalized by the law as felony or misdemeanor.’’ Cross and Jones define crime as a legal wrong the remedy for which is punishment of the offender at the instance of the state.

John gillin defines crime as an act that has been shown to be actually harmful to the society or that is beloved to be socially harmful by a group of people that has power to enforce its beliefs and that places such act upon the ban of positive penalties. Thus he considers crime as an offence against the law of the land. In the words of Donald Taft, crime is asocial injury and an expression of subjective opinion varying in time and place. Halsbury defines crime as an unlawful act which is an offence against the public and the perpetrator of that act is liable to legal punishment. So, it may be said that a crime is a wrong to society involving the breach of a legal wrong which has criminal consequences attached to it prosecution by the state in the criminal court and the possibility of punishment being imposed on the wrongdoer. Crime and social policy are inter-related and the concept of crime depends largely on the social values, accepted norms and behavioral patterns of a particular society at a given time.

An overview of criminal law:

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties.

Elements of crime:

An element of a crime (collectively called elements of crime) is a basic set of common law principles regarding criminal liability that, with few exceptions, constitute the essential elements to prove that the defendant committed a crime under United States law. The jury must be convinced beyond a reasonable doubt that the defendant committed each element of the particular crime charged before deciding on a guilty verdict. The component parts that make up any particular crime vary depending on the crime.

The basic components are listed below. However, the two necessary elements that must coexist for a crime to exist are that the defendant must have committed an act and that act must have been committed intentionally.

Actus Reus:

The 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, i.e., the “guilty mind”, produces criminal liability in common law-based criminal law jurisdictions Canada, Australia, New Zealand, England, Scotland and the United States. In the United States, some crimes also require proof of an attendant circumstance.


The terms actus reus and mens rea are derived from the principle stated by Edward Coke (pronounced ‘Cook’), namely, actus non facit reum nisi mens sit rea, [1] which means: “an act does not make a person guilty unless (their) mind is also guilty”, i.e., the general test is one that requires proof of fault, culpability or blameworthiness both in behavior and mind. In this respect, the role of automatism is highly relevant in providing a positive explanation of the need to demonstrate the voluntaries of the behavior for it to found liability. Once the actus reus has been established in a conventional offence, there must be a concurrence of both actus reus and mens rea (and in the United States, for some crimes, an attendant circumstance) to justify a conviction.

There are some exceptions to the general rule that a “guilty mind” must be proved. Most legislatures create so-called strict liability offences, which criminalise the behavior without the need to prove a mens rea in relation to all the actus reus elements. The majority of these offences are either quasi-criminal or relatively low fault instances of behavior. Even in these cases, liability may sometimes still be negated if automatism is present.

When discussing the nature of an actus reus or guilty act, legal scholars distinguish between:

Commissions, “conduct” or affirmative and positive “acts”; and momissions or failures to act.

Commonwealth legal scholars add a third class, namely a state of affairs.


For both common law and statutory offences, establishing the detailed list of elements necessary to constitute the offence and their scope is a matter of interpretation which may require the courts to review and revise precedents to ensure that the current interpretations match the current needs. For example, if an offence uses a verb such as “inflict” or “enter”, it is for the courts to lay down the factors by which to distinguish the forms of action that might satisfy the requirement. Burglary requires “entry as a trespasser” so if the accused cut a hole in a window and introduced a fishing rod into the room to catch jewellery, would this be an entry? Equally, if a surgeon performs a life-saving operation knowing that the patient did not consent, did he or she inflict injury by cutting open the patient as victim with a knife? At times, these decisions will have profound moral and practical implications for a society, with the rulings of judges and the findings of juries reflecting prevailing attitudes on issues as controversial as euthanasia and assisted suicide, sexual relationships, and the various forms of business activities that should or should not be crimes. By altering the interpretation of the elements of a crime, courts may in effect criminalise behaviour retrospectively.


An omission is failing to do something. Judge Stephen J held that an omission cannot make a person guilty – he highlighted this statement with his scenario: “A sees B drowning. A does nothing to help B. B drowns. A is in no way responsible for failing to help or to summon help.” Having said this, there are 5 exceptions to this rule – where the defendant owed the victim some sort of duty.

A Contractual Duty. In R v Pittwood, a railroad crossing guard failed to do his duty and shut the gate onto the rail road. A person walked through the gate, was hit by a train and killed; the gate keeper was guilty of manslaughter.

A Duty because of a Relationship (usually parent and child). In R v Gibbons and Proctor, the defendant and his wife failed to feed his young daughter; she died through malnourishment. The defendants were guilty of an omission.

A Duty taken on voluntarily. In R v Stone and Dobinson, the defendant’s voluntarily took on the duty to look after Stone’s elderly sister, who was unable to take proper care of herself. She died as a result of their lack of proper care. The defendants were guilty.

Through one’s Official Duty. In R v Dytham, the defendant was a police officer who witnessed an assault take place. He did not intervene and failed to summon help. He was guilty of the victim’s injuries because of his failure to act as a police officer.

A duty which arises because the defendant has set in motion the chain of events. In R v Miller, the defendant was a squatter staying in a house. He fell asleep whilst holding a lit cigarette, and set fire to the room he was in. Instead of putting the fire out, or calling for help, he moved to another room to sleep there instead; the defendant was guilty of arson.

As well as omissions in Criminal Law, there are also omissions in the Law of Tort (Negligence), such as –

Failing to act despite the duty of care owed to another person. For example, a mother allows a 3 year old child to drown when they could have been easily saved without any risk to the mother.

It is important to understand that the law does not criminalise (in nearly all instances) not doing something, although there is sometimes a moral issue which clouds judgment. A person may be morally wrong, but that does not mean they are criminally liable.

State of affairs:

These are offences that occur even though the defendant didn’t act voluntarily. A number of offences are defined as a situation or context, e.g., “being found within enclosed premises” and “being drunk in charge of a motor vehicle”. These are usually strict liability and a conviction can be sustained even though an accused did not act in a wholly voluntary manner. Hence, if a person falls asleep in a quiet corner of a library and is locked in by inadvertent staff, the offence will be committed, but the relatively low level of fault could be reflected in the sentence. In Martin v State (1944) 31 Ala App 334 17 so 2d 427. Martin was arrested at home and taken onto the highway by police officers, where he showed signs of being drunk. His conviction for being drunk on a public highway was quashed because his arrival on the highway was not voluntary. Whereas in R v Larsonneur (1933) 24 Cr. App. R. 74 Larsonneur, a French citizen, was served with an order requiring her to leave the UK and not return. Instead of returning to France, she traveled to Ireland, and was deported back to England where she was arrested for “being found in the United Kingdom”.

The Court of Criminal Appeal held that the involuntary circumstances under which she was returned were “perfectly immaterial”. In Winzar v Chief Constable of Kent (1983) the Times, 28 March 1983, where the charge was one of being “found drunk on a highway” contrary to s12 Licensing Act 1872, Winzar had originally been found drunk in a hospital and asked to leave. When he failed to do so, police officers removed him to their patrol car, which was parked on the highway outside, and then charged him with the offence in question. Upholding the conviction, Goff LJ. Pointed out that a distinction would otherwise have to be drawn between the drunk who leaves a restaurant when asked to do so and the drunk who is forcibly ejected after refusing to leave. If both are arrested in the street shortly afterwards, it would be wrong for the courts to regard the former as guilty and the latter as not. But the U.S. approach of abuse of process might prevail if the police were to drag a person from his own bed and into the street before charging him with being found drunk on a highway.

Causation (law):

Causation is the bringing about of a result, and in law it is an element in various tests for legal liability. Most tests for legal liability in criminal and civil law require the defendant to have ‘caused’ the result of which the plaintiff complains. For example:

· Homicide (criminal law): requires that the accused have caused the victim’s death

· Negligence (civil law): requires that the defendant have caused the harm that befell the plaintiff

· Breach of contract (civil law): requires that the defendant’s breach have caused the plaintiff’s loss.

· If the plaintiff/prosecution cannot establish the causal link between the defendant’s act and the plaintiff’s/victim’s harm, then liability will not be established.

Mens rea:

In criminal law, mens rea — the Latin term for “guilty mind” [2]— is usually 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 that “an act does not make a guilty unless there is guilty mind is “.The two conditions must be satisfied before a criminal liability can be imposed. The first condition is physical condition which means the existence of an unlawful act. The second condition is the means rea or the guilty mind. Unless and until both conditions are present at the time same time no criminal liability arises. A guilty mind must consist of either intention or negligence. The guilty mind does not depend generally on the nature or motive behind the act. Guilty has to be in the immediate intent or negligence. Mens rea must extend to the three parts of an act viz., the physical doing or not doing, the circumstances and the consequences if mens rea does not entend to any part of the act, there should be no guilty mind behind the act.

The from which mens rea assume will depend on provisions of the particular legal system. Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged .The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff).

Quite simply, therefore, mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions, the terms mens rea and actus reus have been superseded by alternative terminology. In Australia, for example, the elements of all Federal offences are now designated as “Fault Elements” (mens rea) and “Physical Elements” (actus reus). This terminology was adopted in order to replace the obscurity of the Latin terms with simple and accurate phrasing.[3]

There are four general classes of mens rea (the words used may vary from one state to another and from one definition to another) but the substance is:

Intention; (purpose)


Recklessness sometimes termed willful blindness which may have a different interpretation in the United States; or Negligence.

Intention (criminal):

In the criminal law, intention is one of the three general classes of mens rea necessary to constitute a conventional as opposed to strict liability crime. An intention is the purpose or design with which an act is done. This may consist of an intention to perform some further act, an intention to bring about certain consequences or perhaps merely an intention to do the act itself. Intention is defined in R. v Mohan as “the decision to bring about a prohibited consequence”. A range of words is used to represent shades of intention in the various criminal laws around the world. The most serious crime of murder, for example, traditionally expressed the mens rea element as malice aforethought, and the interpretations of malice, “maliciously” and “willfully” vary between pure intention and recklessness depending on the state and the seriousness of the offence.

The test of intention:

The policy issue for those who administer the criminal justice system is that, when planning their actions, people may be aware of many probable and possible consequences. Obviously, all of these consequences could be prevented through the simple expedient either of ceasing the given activity or of taking action rather than refraining from action. So the decision to continue with the current plan means that all the foreseen consequences are to some extent intentional, i.e. within and not against the scope of each person’s intention. But, is the test of culpability based on purely a subjective measure of what is in a person’s mind, or does a court measure the degree of fault by using objective tools?

For example, suppose that A, a jealous wife, discovers that her husband is having a sexual affair with B. Wishing only to drive B away from the neighborhood, she goes to B’s house one night, pours petrol on and sets fire to the front door. B dies in the resulting fire. A is shocked and horrified. It did not occur to her that B might be physically in danger and there was no conscious plan in her mind to injure B when the fire began. But when A’s behavior is analyzed, B’s death must be intentional. If A had genuinely wished to avoid any possibility of injury to B, she would not have started the fire. Or, if verbally warning B to leave was not an option, she should have waited until B was seen to leave the house before starting the fire. As it was, she waited until night when it was more likely that B would be at home and there would be fewer people around to raise the alarm.

On a purely subjective basis, an intended to render B’s house uninhabitable, so a reasonably substantial fire was required. The reasonable person would have foreseen a probability that people would be exposed to the risk of injury. Anyone in the house, neighbors, people passing by, and members of the fire service would all be in danger. The court therefore assesses the degree of probability that B or any other person might be in the house at that time of the night. The more certain the reasonable person would have been, the more justifiable it is to impute sufficient desire to convert what would otherwise only have been recklessness into intention to constitute the offence of murder. But if the degree of probability is lower, the court will find only recklessness proved. Some states used to have a rule that if a death occurred during the commission of a felony, sufficient mens rea for murder would automatically be imputed. For the most part, this rule has been abolished and direct evidence of the required mental components is required. Thus, the courts of most states use a hybrid test of intention, combining both subjective and objective elements, for each offence changed.

In English law, section-8 Criminal Justice Act 1967 provides a statutory framework within which Mens rea is assessed. It states:

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but

(b) Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Under section 8(b) therefore, the jury is allowed wide latitude in applying a hybrid test to impute intention or foresight (for the purposes of recklessness) on the basis of all the evidence.

Offenses of basic and of specific intent

In some states, a distinction is made between an offence of basic (sometimes termed “general”) intent and an offence of specific intent.

i. Offenses requiring basic intent specify a mens rea element that is no more than the negligent or reckless commission of the actus reus. The actor either knew (recklessness) or should have known (negligence) that his action (actus reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.

ii. A limited numbers of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:

(a) Some legislatures decide that particular criminal offences are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intention or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Person Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:

(b) unlawfully and maliciously — the modern interpretation of “malice” for these purposes is the modern “recklessly” and the sui generis rule of statutory interpretation gives “unlawfully” the same meaning; and with the intent either to cause grievous bodily harm or to resist lawful arrest. The rule in cases involving such offences is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature’s express requirement can be seen to be satisfied.

(c) The inchoate offences such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offence, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offence at some time in the future, a clear subjective intention to cause the actus reus of the full offence must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offence, the accused may change his or her mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.

Direct and oblique intent

This has two applications:

a. When a person is planning to achieve a given consequence, there may be several intermediate steps that have to be taken before the full result as desired is achieved. It is not open to the accused to pick and choose which of these steps are or are not intended. The accused will be taken to intend the accomplishment of all outcomes necessary to the fulfillment of the overall plan. For example, if a wishes to claim on B’s life insurance policy so shoots at B who is sitting in a bus, the bullet may have to pass through a window. Thus, even though A may not have desired B’s death, it was an inevitable precondition to a claim. Similarly, he may never consciously have considered the damage to the window, but both the murder and the damage under the Criminal Damage Act 1971 will be intended. This is distinguishing between the direct intention which is the main aim of the plan, and the oblique intention which covers all the intermediate steps. More generally, a person directly intends a consequence when his purpose or aim is to cause it even though he believes that the likelihood of it succeeding is remote. In R v Dadson, for example, the defendant shot at a man whom he wrongly believed to be out of range. In R v Mohan (1975) 2 All ER 193 it was held that direct intention means, “aim or purpose” – “a decision to bring about, insofar as it lies within the accuser’s power, the commission of the offence. No matter whether the accused desired that consequence of his act or not.”

b. .Sometimes, by accident, a plan miscarries and the accused achieves one or more unintended consequence. In this situation, the accused is taken to have intended all of the additional consequences that flow naturally from the original plan. This is tested as matters of causation and concurrence, i.e. whether the given consequences were reasonably foreseeable, there is no novus actus interveniens and the relevant mens rea elements were formed before all of the actus reus components were completed.

Knowingly (knowledge):

In law knowledge is one of the degrees of mens rea that constitute part of a crime. For example, in English law, the offence of knowingly being a passenger in a vehicle taken without consent (TWOC) requires that the prosecution prove, not only that the defendant was a passenger in a vehicle and that it was taken by the driver without consent, the prosecution must also prove that the defendant knew that it was taken without consent.

Under the principle of ignorantia juris non excusat, ignorance of or mistake about the law is no defence. The mens rea of knowledge refers to knowledge about certain facts. It is “a positive belief that a state of affairs exists.”

Knowledge can be:

1. Actual;

2. Constructive;

3. Imputed.

Actual knowledge:

A defendant does not have actual knowledge if he believes something to the contrary. The standard is subjective and the belief of the defendant need not be reasonable, only honest. For example, in R v. Williams <href=”#cite_note-3″ title=””>[4] the defendant intervened in what he thought was a mugging but was in fact a citizen’s arrest. His mistake was upheld as a defence against a charge of assault. In Beckford v. R <href=”#cite_note-4″ title=””>[5] the defendant was a police officer who shot and killed V. Beckford claimed that he believed that V was shooting at him. It was found that the correct test was whether D “honestly believed” facts which, if true, would establish a defence. The reasonableness of the belief would be evidential in finding whether it was truly believed.

Constructive knowledge:

Knowledge is also found where a defendant suspects that circumstances exist and “deliberately decides not to make any further enquiries” in case his suspicions prove well founded. A common example is a person who purchases signally inexpensive and unprofaned, but desirable items from a stranger. Such a person is likely to be fixed with constructive knowledge that the items were stolen.

Imputed knowledge:

This is relevant in strict liability offences and in corporate crime. For example, if a bar manager delegates his duties to others and those others know of unlawful activities on the premises, the manager can be fixed with imputed knowledge of the unlawful activities.

Recklessness (criminal):

In the criminal law, recklessness (sometimes also termed willful blindness which may have a different meaning in the United States) is one of the four possible classes of mental state constituting mens rea (the Latin for “guilty mind”). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus, i.e., a person cannot be guilty for thoughts alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time. Recklessness may constitute an offense against property or involve significant danger to another person.

Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. 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:

a. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;

b. 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, although R v Gemmell and Richards deprecated this in the UK; or

c. 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. Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because he or she is gambling with the safety of others and the fact that the accused might have taken some steps to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness. Hence, the alternative phrase “willful blindness” acknowledges the link representing either that the accused deliberately engineered a situation in which he or she was ignorant of material facts, or that the failure to foresee represented such a danger to others that it must be treated as though it was reckless.

English law:

The modern definition of recklessness has developed from R v. Cunningham (1957) 2 AER 412 in which the definition of ‘maliciously’ for the purposes of the Offences Against The Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man’s mother-in-law:

In any statutory definition of a crime, malice must be taken … as requiring either:

(1) An actual intention to do the particular kind of harm that in fact was done; or

(2) Recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Since then, the pendulum has swung between subjective and objective, and currently rests nearer to the subjective end of the scale.

American Law:

Black’s Law Dictionary defines recklessness in American law as “Conduct whereby the actor does not desire harmful consequence but…foresees the possibility and consciously takes the risk,” or alternatively as “a state of mind in which a person does not care about the consequences of his or her actions.” Black’s Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American courts, a wrongdoer who recklessly causes harm can be held to the same liability as a person who intentionally does so.R v Caldwell (1982) 1 AER 961

Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer’s hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life.

In English law, the offence of “arson” was abolished in the Criminal Damage Act 1971, although the use of the word was retained to express the particular “horror” with which the public views offences involving the deliberate use of fire. Caldwell was convicted under s1(2) Act 1971, which requires that the defendant shall:

(a) Intend to destroy or damage any property or be reckless as to [the same] and

(b) Intend by the destruction or damage to endanger the life of another or be reckless as to whether the life of another would be thereby endangered.

The House of Lords was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of specific intent and basic intent (see intention), the latter would encompass recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness. Although the discussion of recklessness tends to be largely obiter dicta, Lord Dip lock’s discussion contains what was intended as a model direction, namely that a defendant is reckless when:

(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged; and

(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it

To that extent, the test is one of obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be taken to have foreseen it. But the focus of this test is the nature of the defendant’s conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to act after deciding (wrongly as it would later appear) that no risk existed? In Elliot v C (a minor) (1983) 2 AER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action but the court reluctantly followed Caldwell.

In the broader context, the Road Traffic Act 1991 reformed the offence of reckless driving by reverting to the old terminology of dangerous driving, i.e. apparently replacing a mens rea requirement with a fault element requiring dangerousness (see death by dangerous driving for the statutory version of a test of obviousness). In the continuing judicial debate, Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case, that an absence of something from a person’s state of mind is as much part of his or her state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognized risk. Lord Keith stressed that Lord Diplock qualified the model direction as “an appropriate instruction” only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights in cases involving a minor or other person’s of reduced capacity.

The requirement is that “everyone is entitled to a fair and public hearing”. But, to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes strict liability. However, Z and others v United Kingdom (2002) 34 EHRR characterizes Article 6 as procedural rather than substantive. It is also to be noted that after much criticism, the decision in R v Caldwell (1981) was overruled by the House of Lords in the case of R v G (2003).Caldwell-style reckless (an objective test) was phased out after the case of R v G (see below), which introduced a form of subjective recklessness to cases involving criminal damage. The majority of mens rea of recklessness is now ‘tested’ using the Cunningham test.

Two boys, aged 11 and 12 years, were camping without their parents’ permission when they entered the back yard of a shop in the early hours of the morning, lighting some newspapers which they had found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn it out and said they gave no thought to the risk of it spreading. When their appeal reached the House of Lords, Lord Bingham saw the need to modify Lord Diplock’s definition to take account of the defence of infancy which contains the concept of “mischievous discretion”. This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between “right” and “wrong”. The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts ‘recklessly’ with respect to:

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”

This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding. Nevertheless,

R v G and another [2003] 1 Cr App R 21

The test remains hybrid because the credibility of the accused’s denial of knowledge and understanding will always be judged against an objective standard of what you would expect a person of the same general age and abilities as the accused to have known.

In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian’s conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.

Criminal negligence:

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 offence. It is defined as:

Careless, inattentive, neglectful, willfully blind, or in the case of gross negligence what would have been reckless in any other defendant.


To constitute a crime, 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 (note that 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:

Subjective where the court 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 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.

Examples of criminally negligent crimes are criminally negligent homicide and negligent endangerment of a child. Usually the punishment for criminal negligence, criminal recklessness, criminal endangerment, willful blindness and other related crimes is imprisonment, unless the criminal is insane (and then in some cases the sentence is indeterminate).

Ignorantia juris non excusat:

Ignorantia juris non excusat or Ignorantia legis neminem excusat (Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one”) is a public policy holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content; that is, persons have presumed knowledge of the law.


The rationale behind the doctrine is that if ignorance were an excuse, persons charged with criminal offenses or the subject of civil lawsuits would merely claim they were unaware of the law in question to avoid liability, whether criminal or civil. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state’s activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation. Thus, it is well settled that persons engaged in any undertakings outside what is common for a normal person, such as running a nuclear power plant, will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability.

The doctrine assumes that the law in question has been properly published and distributed, for example, by being printed in a government gazette, made available over the internet, or printed in volumes available for sale to the public at affordable prices.

In the Criminal Law, although ignorance may not clear a defendant of guilt, it can be a consideration in sentence, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after they had been advised by customs officials that it was legal to import such devices into Canada. Although the defendant was convicted, the sentence was an absolute discharge.

In addition, there were, particularly in the days before satellite communication and cellular phones