4. Crimes of negligence

2021 ◽  
pp. 136-145
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
Reasonable Person ◽  
Objective Standard ◽  
The Law

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.

4. Crimes of negligence

2018 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
Reasonable Person ◽  
Objective Standard ◽  
The Law

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.

Intention vs. Negligence

2019 ◽  
pp. 175-184
Author(s):  
George P. Fletcher
Keyword(s):  
Mental State ◽  
Common Law ◽  
Mens Rea ◽  
Criminal Cases ◽  
Reasonable Person ◽  
The Face ◽  
The Common ◽  
The Law

This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.

Proposals for Reforming the Law of Self-Defence

2008 ◽  
Vol 72 (5) ◽  
pp. 409-440 ◽  
Author(s):  
Amir Pichhadze
Keyword(s):  
Reasonable Person ◽  
Objective Standard ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
Significant Attention ◽  
Law Commission ◽  
Self Defence

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

Torts and Other Wrongs

2019 ◽  
Author(s):  
John Gardner
Keyword(s):  
Public Policy ◽  
Distributive Justice ◽  
Strict Liability ◽  
Private Law ◽  
Moral Significance ◽  
Reasonable Person ◽  
Reasonable Person Standard ◽  
The Law

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

Rethinking the Meaning of Ordinary Meaning in Light of the ICJ’s Jurisprudence

2021 ◽  
Vol 20 (2) ◽  
pp. 267-288
Author(s):  
Katayoun Hosseinnejad
Keyword(s):  
Vienna Convention ◽  
International Court Of Justice ◽  
Ordinary Meaning ◽  
Objective Standard ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
The Law ◽  
Legal Meaning

Abstract Article 31 of the Vienna Convention on the Law of Treaties calls for consideration of the ordinary meaning as the starting point in the process of interpretation. Although the linguistic concept of ordinary meaning is founded on the idea that the meaning of a sentence is directly imposed by the norms of language so that interpreters are provided with an objective standard which is external to their subjectivity, this article demonstrates that the interpretive jurisprudence of the International Court of Justice has departed from the imperatives of the ordinary meaning doctrine. Rather, the Court, mindful of the problem that no mere sequence of words can represent actual legal meaning, has moved towards construction of ordinary meaning.

scholarly journals The Rule against Multiple Fictions

1969 ◽  
pp. 160
Author(s):  
Bruce Ziff
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Mens Rea ◽  
Basic Principles ◽  
The Law

The author explores aspects of the constructive mens rea found in the Criminal Code, primarily as these relate to accomplices to murder. By examining both basic principles of criminal liability in Canada and the rationale of constructive mens rea, the author seeks to expose the harshness of the current rules, which, when applied to accomplices, tend to compound constructive mens rea provisions. In result, the author proposes that the law adopt a 'rule against multiple fictions', designed to preclude that compounding.

The basic issue surrounds whether the law has been broken. We have been told Mary has been charged with theft under s 1 of the Theft Act. We are to assume that the three statements provided containing all of the information in this scenario have been produced just for us to read and work on. For the purposes of this exercise we will assume that these statements were produced in ways not calling into doubt their admissibility or credibility. This means therefore that we only have to concentrate on their probative value. (What do they prove?) The seven point approach of Twining and Miers will be used. 1 Standpoint: the standpoint of the Chart is that of the author of this book demonstrating the Wigmore Chart Method for the purposes of demonstrating the method and argument construction. 2 Stages 2, 3 and 4: relate to setting up the propositions and then key listing and charting. The impossibility of approaching each task in an isolated way is immediately perceived as we are going to work from statements. We have to find out the facts before we can draft the UP, PP, and interim probanda. Task: so that you can appreciate the levels of analysis go back to the statements and highlight the key words and phrases that begin to allow you to break into them and locate the story, and the law. Then try to give answers to the following questions: (1) What are the relevant facts? (2) What key phrases in the statements give you clues as to the application of the law? (3) Can you construct the deductive argument for the prosecution? (4) Can you construct the inductive argument for the prosecution? (5) Can you construct the opposing inductive argument for the defence? (6) Are there any conditions of doubt in your mind surrounding the wording of s1(1) of the Theft Act which may apply? (For example questions surrounding the presence of both mens rea and actus reus.) DO NOT PROCEED UNTIL YOU HAVE ANSWERED QUESTIONS (1)–(6).

2012 ◽  
pp. 253-254
Keyword(s):  
Key Words ◽  
Levels Of Analysis ◽  
Mens Rea ◽  
Key Words And Phrases ◽  
Deductive Argument ◽  
Inductive Argument ◽  
Probative Value ◽  
Actus Reus ◽  
The Law ◽  
Key Phrases

2. Actus reus

2021 ◽  
pp. 39-84
Author(s):  
John Child ◽  
David Ormerod
Keyword(s):  
Legal Reform ◽  
Mens Rea ◽  
Problem Type ◽  
Actus Reus ◽  
The Law ◽  
Type Question

This chapter provides an overview of actus reus, which refers to the ‘external elements’ of an offence. These external elements do not simply relate to D’s conduct. Rather, as we will see, the actus reus of an offence includes any offence elements outside of the fault element (‘mens rea’) of the offence. Before discussing the elements that form the actus reus, this chapter considers the distinction between actus reus and mens rea. It then describes the three elements of actus reus: conduct, circumstances, and results. It also explains the categories of actus reus offences, omissions liability, and causation before concluding with sections that outline potential options for legal reform and a structure for analysing the actus reus of an offence when applying the law in a problem-type question. Relevant cases are highlighted throughout the chapter, with a brief summary of the main facts and judgment.

2. Actus reus

2021 ◽  
pp. 34-78
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Actus Reus ◽  
The Law ◽  
State Of Affairs

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter explains the concept of actus reus. It discusses the elements of crime, defining an actus reus, proving an actus reus, that conduct must be voluntary, state of affairs offences, omissions liability (situations in which a person will be liable for failing to act), causation (including the principles of factual and legal causation), and coincidence in time of actus reus and mens rea. ‘The law in context’ feature analyses critically English law’s approach to liability for causing another person’s suicide.

4. Negligence and strict liability

2021 ◽  
pp. 126-150
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
European Convention ◽  
Mens Rea ◽  
The Law ◽  
Sexual Services

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of and justifications for strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. The feaeture ‘The law in context’ examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.

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