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Negligence as the mens rea of criminal conduct.

Контрольна робота

№ K-19928

ВАРІАНТ № 10
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7. Список літератури.
8. Підпис.
Negligence as the mens rea of criminal conduct.
Negligence as the basis of liability for an offence at common law exists only in the case of manslaughter. In such a case the prosecution will have to prove that the actions of the accused were of such a nature that death was a very high probability. Note the following statutory offences, for example.
(a)Careless driving, contrary to the Road Traffic Act 1972, s.3. Driving without due care and attention involves the state of mind often referred to as 'negligent.
(b)Selling firearms or ammunition to a person whom the accused knows or has reasonable cause for believing to be drunk or of unsound mind', contrary to the Firearms Act 1968, s.25. In such a case the accused has acted negligently if he ought to have known that the person to whom he sold the gun was drunk or of unsound mind (Curzon).
Negligence may be the central feature of the crime. Under the Road Traffic Act 1972, s.3, for example, it is an offence to drive a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road. On a charge of driving without due care, it is clear that negligence is the gist of the offence. This section, it has been held, establishes «an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience to be attained by the individual driver.
“The negligent handling of certain instruments - notably motor-vehicles - can have such drastic consequences that society is almost bound to adopt any measures which seem to have a reasonable prospect of inducing greater care; and it seems reasonable to suppose that the threat of punishment does have an effect on the care used in the handling of such instruments. There is a trend towards replacing strict liability by liability for negligence» (Smith and Hogan).
Where an act or omission, state of affairs or event is unlawful where certain circumstances exist, and the offence is one requiring mens rea, knowledge of those circumstances on the part of the accused will establish mens rea. Many statutory offences impose this mens rea requirement by using the word «knowingly».
There are three degrees of (guilty) knowledge. The first is «actual knowledge)) where the accused knows for a fact that the relevant circumstance exists. Actual knowledge is the equivalent of intention in that if the accused acts knowing the circumstance to exist he may be said to have acted intentionally in respect of it.
The second is «willful blindness» which is equivalent to subjective recklessness. It is always open to the tribunal of fact, when knowledge on the part of the defendant is required to be proved, to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not want to have his suspicion confirmed. «Connivance», as this attitude of mind is sometimes called, is closely akin to recklessness.
The third degree of knowledge is constructive knowledge which is really a species of negligence and rarely suffices to establish criminal liability. Phrases
such as «reasonable cause to believe», «reason to believe» or «reason to suspect in the definitions of offences impart this degree of knowledge. Liability is, in effect, incurred where the accused had the means of knowledge had he made the enquiries which a reasonable and prudent person would make (M. J. Allen).
In wilful blindness the accused deliberately shuts his eyes; in constructive knowledge the accused simply fails to make the enquiries a reasonable person would have made (A.Reed and P-Seago).
«Knowingly» requires knowledge at the time of committing the offence. Where the mens rea requirement is knowledge, it must be proved that the accused (defendant) had the requisite knowledge al the time of committing the offence. If the accused previously knew the prescribed fact but has forgotten it at the time he acted, this will not suffice.
There are two categories of cases from which the requirement of mens rea, in relation to some elements' of the actus reus, may be said to be excluded.
(a)Certain statutory offences involving so-called 'strict liability.
(b)Cases in which vicarious liability attaches to a master (i.e. an employer) for a statutory offence committed by his servant (i.e. his employee) in the course of carrying out his duties and which was not authorised (or was even forbidden) by the master.
Where a statute is silent as to mens rea, the presumption that it is required may be rebutted. The following decisions illustrate the problem:
(a)Neville v. Mavroghemis (1984). X was charged under the Housing Act 1961, S. 13(4), with not maintaining in a proper state of repair premises of which he was a manager. It was held, allowing the prosecution's appeal from X's acquittal, that the second limb of s. 13(4) ('without reasonable excuse ... fails to comply with any regulations') was to be construed strictly. Although X did not know of the defects, this was irrelevant because the word 'knowingly' did not appear in the second limb.
(b)Greenwich London B. C v. Millcroft Construction Ltd. (1986). The offence of making an excavation in a highway, which consisted of carriageway, without lawful authority or excuse, contrary to the Highway Act 1980, s. 131(1), was an absolute offence not requiring proof of mens rea.
Vicarious liability means the legal responsibility of one person for the wrongful acts of another, as, for example, when the acts are done within the scope of employment. The problem is: under what circumstances; if any, is a master or principal responsible for the wrongful acts committed by his servant or agent?
The problem may be considered under two headings:
(a)the position at common law;
(b)the position under statute.
Vicarious liability at common law. The general rule at common law is that X is not vicariously liable for a crime committed by his servant, Y. An exception to this general rule is found in the offence of public nuisance (i.e. the causing of substantial annoyance to the subject of the Crown, by exposing to danger, or affecting injuriously in other ways, their lives, health or property). So, "X will be criminally liable for such a nuisance created by Y, his servant, even though Y, in so acting, was disobeying X's orders. The reason for this exception is probably that the purpose of the prosecution is to prevent the nuisance from being continued, rather to punish X (R. v. Stephes (1866)).
Vicarious liability under statute following delegation. The general rule is stated in Moussete Bros. v. LE NW Railway Co. (1917), in which X was convicted of the offence of having given a false account of goods to be carried by the railway, so as to avoid payment of the appropriate tolls. It was found that the false account had been given by a servant of X, on the instruction of X's manager, with the intention of avoiding payment of the tolls.
Prima facie a master is not to be made criminally responsible for the acts of his servant to which the master is not a party. But it may be the intention of the legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not a party to, for the forbidden act done by his servant... In those cases the legislature absolutely forbids the act and makes the principal liable without mens rea. (Viscount Reading CJ).
Where there has been a general delegation of authority and responsibility by X to Y, his servant, X will generally be liable for Y's infringement of a statute which concerns the running of the business; Y will be convicted (if at all) only as a secondary party.
There is no vicarious liability for an offence of abetting or attempting a crime.

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