criminal-law england-and-wales
If negligence is admitted as a form of fault, how aren&#39;t you broadening the traditional category of mens rea?
<p>I don't understand the embolded sentence below. How can you admit negligence as a form of fault, without broadening the traditional category of <em>mens rea</em>?</p>
<p><a href="https://rads.stackoverflow.com/amzn/click/com/0198777663" rel="nofollow noreferrer" rel="nofollow noreferrer"><em>Ashworth's Principles of Criminal Law</em> (2020 9 edn)</a>. p 207.</p>
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<p>      The argument is therefore moving towards the conclusion that negligence may be
an appropriate standard for criminal liability where: (a) the (potential) harm is great;
(b) the risk of it occurring is obvious; (c) D has a duty to try to avoid the risk; and (d)
D has the capacity to take the required precautions. This opens up further debates on
various points. The thesis is that negligence may be an appropriate standard where there
are well-known risks of serious harm. This argues in favour of negligence as a standard
of liability for certain serious offences against the person, including some serious sexual
offences,279 and also for some serious offences against the environment and property. But
it must be debated whether liability for serious crime should be confined to gross negligence,
not simple negligence. And it would be vital to protect ‘rule of law’ expectations,
and thus to ensure that people receive fair warning of any duties that may form the basis
of criminal negligence liability.280 <strong>The spread of negligence liability would not have to
result in the broadening of the traditional category of <em>mens rea</em>: negligence could be admitted
as a form of fault, whereas intention and recklessness would remain the two forms
of mens rea.</strong> It would be perfectly possible for a criminal code to provide separate crimes
of negligence, with lower maximum sentences, at appropriate points in the hierarchy of
offences. A further issue is whether the offences of negligence should be in the inchoate
mode—‘failing to take reasonable precautions’—or should be tied to the occurrence of
the particular harm. Careless driving is of the former type, manslaughter of the latter.281</p>
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<p>Fault is related to mens rea. I quote pp 174-175.</p>
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<h2>(a) Mens rea and fault</h2>
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<p>It has already been argued that there should be no criminal liability without fault for
imprisonable offence.109 Indeed, there is a respectable argument for saying that there
should never be criminal liability without fault;110 but whilst that view seems persuasive
in relation to the liability of individuals, it is perhaps less persuasive where the
liability of businesses is concerned, particularly in cases where there is a defence to the
crime in question of ‘due diligence shown’ (or the like).<br />
      The claim that criminal offences should include mens rea—guilty mind—requirements
reflects the view that criminal liability should be imposed only on persons who can
be said ‘subjectively’ to have associated <em>themselves</em> through their behaviour with the</p>
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<p>p 175</p>
<blockquote>
<p>wrongful conduct in question (including the circumstance or consequence elements of
the offence, if any). In broad terms, this occurs when people engage in wrongful conduct
intentionally, knowingly, recklessly, whilst possessing similar mental states such as
indifference, awareness, or suspicion, or when they are complicit in the wrongdoing of
others. The subjective mens rea approach encompasses the belief principle, which holds
that criminal liability should be based on what defendants believed they were doing or
risking, not on facts which were unknown to them at the time.111 For example, according
to the belief principle, if D is found in possession of class A drugs, but claims he believed
he was in possession of class B drugs, if the prosecution cannot prove otherwise
he should be acquitted of ‘possessing class A drugs’. It should not be sufficient to show
that he knew he was in possession of prohibited drugs unless, of course, as under the
present law, there is a specific offence of possessing ‘a prohibited drug’.112</p>
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<p>Fault, in English law, is &quot;blameworthiness&quot;. While it covers both the act and the mental state of the defendant, it cannot equate to the subjective <em>criminal intent</em> of the defendant known as <em>mens rea</em>.</p>
<p>In other words, you can be at fault for negligence without having the requisite intent to commit a criminal act. This is perhaps best pointed out by the next sentence after the one in bold:</p>
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<p>It would be perfectly possible for a criminal code to provide separate crimes of negligence, with lower maximum sentences, at appropriate points in the hierarchy of offences.</p>
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<p>There are also examples of such offences in English law already. For example, careless, and inconsiderate, driving (&quot;driving without due care and attention&quot;) contrary to <a href="https://www.legislation.gov.uk/ukpga/1988/52/section/3" rel="nofollow noreferrer">Section 3 of the Road Traffic Act 1988</a> is an offence that requires fault without <em>mens rea</em>. The defendant merely has to be <em>careless</em> and <em>inconsiderate</em> — they do not have to be in the state of mind where they know or believe that what they are doing is criminal in some way.</p>
<p>In contrast, dangerous driving contrary to <a href="https://www.legislation.gov.uk/ukpga/1988/52/section/2" rel="nofollow noreferrer">Section 2 of the Road Traffic Act 1988</a> has the implied requirement of <em>mens rea</em> because of the word &quot;dangerously&quot;. This implies the defendant must have a subjective belief that what they are doing is dangerous (or otherwise be reckless about it), and therefore criminal.</p>
