What is Negligence in Criminal Law?

In my last few blog posts, we have been looking at actus reus and mens rea in criminal law, as well as the tests for these and how they are applied. In this blog post, we will be looking at negligence in criminal law. There are a few things to consider here – what is negligence in criminal law? In which areas does it apply? What tests are used to check whether a defendant has been negligent or not and, if so, whether this amounts to a criminal offence? We will be looking at the answers to all of these questions, as well as some examples of case law where negligence (in the criminal sense) came into play. This should help you to gain a better understanding of the principles in context.

What is Negligence?

First of all, what does negligence mean in criminal law? Overall, negligence rarely has an effect on criminal liability, as there are very few offences that it applies to. Although negligence used to form the basis of many driving offences, it has since been replaced by recklessness as the mens rea. Technically, negligence is not a mens rea in the strictest sense of the term, as it uses a wholly objective test that takes no account of the defendant’s state of mind. Although negligence is no longer used to prove driving offences, it does still exist in criminal law as a type of manslaughter, called gross negligence manslaughter. We will also look at what this is and how negligence is proved.

Objective Test

This objective test uses the standard of the reasonable person. The reasonable person test asks what a hypothetical person with average skill and judgement would have done in the situation. Essentially, if the reasonable person would consider the defendant’s actions negligent, then they are, regardless of what the defendant themselves thought. This is a very strict test that does not take the defendant’s characteristics into account. This can be seen in the case McCrone v Riding [1938] 1 All ER 157, where the defendant was a new driver charged with careless driving. It was decided that he should be held to the same standard as any other driver, not a reduced standard to take his lack of experience into account.

Gross Negligence Manslaughter

The first test for gross negligence manslaughter was set out in R v Bateman (1925) 19 Cr App R 8 and has four parts. The first three are grouped together and ask whether the defendant owed a duty of care, if this duty of care had been discharged and, if not, whether this default of duty by the defendant had led to the death of another person. In addition, the prosecution must satisfy the jury that the defendant’s negligence amounted to a crime. Although later cases confirmed this test, the final requirement (whether the defendant’s negligence amounted to a crime) was criticised due to its circular nature. It essentially told the jury that the negligence was a crime if they thought it was a crime, leading to a lack of clarity in the law.

Due to the unsatisfactory nature of the test in Bateman, gross negligence manslaughter was largely replaced by reckless manslaughter for many years. The test for reckless driving was given in R v Lawrence (Stephen) [1982] AC 510 and has two parts. Firstly, was the defendant driving in a way that created an obvious and serious risk of physical injury to another person or substantial damage to property? It is up to the jury to decide what constitutes an obvious and serious risk, based on the standard of the ordinary prudent motorist. Secondly, did the defendant drive in this manner without having given any thought to the possibility of there being any such risk or, having realised the risk, nonetheless gone on to take it?

The case of R v Adomako [1995] 1 AC 171 gives the current test for gross negligence manslaughter. The first part of this is that the defendant must have owed a duty of care to the victim, which is proved in the normal way. Secondly, this duty of care must have been breached in some way. Thirdly, this breach of duty must be the cause of death, requiring the normal tests of causation. The final requirement is that the defendant’s conduct was so bad in all circumstances as to amount to a crime.

The later case of Rowley v DPP [2003] EWHC 693 seemed to add a fifth element to the Adomako test of badness or criminality. In this case, a resident of a care home drowned in the bath after being left unattended. His mother brought the case against the DPP for deciding not to prosecute the caregivers, which was unsuccessful as there was not sufficient badness. The jury must be sure that the defendant’s conduct was so bad as in all the circumstances to amount “to a criminal act or omission”.

Wrapping Up

I hope that this helps you to understand the role of negligence in criminal law. It has quite a narrow application, as it is rare for negligence to be bad enough to constitute a criminal offence rather than a civil one. In my next blog post, we will be looking at the contemporaneity rule and transferred malice, so come back in two weeks for that!

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