We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 August 2021
A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or “tracing” approach, namely an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it cannot account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it cannot account for why, when considering whether a defendant is negligent, what counts as a risk should be assessed relative to the defendant's evidence.
Leverhulme Early Career Fellow, Department of Philosophy, University College London.
For helpful comments on previous drafts, I am grateful to Lucy Campbell, David Campbell, Simon-Pierre Chevarie-Cossette, Claire Field, John Hyman, Max Kiener, Yuuki Ohta, Alexander Sarch, Findlay Stark, and two anonymous referees for the Cambridge Law Journal, as well as audiences at UCL and Lund. This work was supported by an Early Career Fellowship from the Leverhulme Trust (grant number: ECF-2019-406).
1 R. v G and another [2003] UKHL 50, [2004] 1 A.C. 1034, 1057. Strictly speaking, the ruling in G was only intended to cover the meaning of “recklessness” in relation to criminal damage (see Lord Bingham's comments at 1054). However, a number of judgments have not followed this restriction: see the cases noted in Stark, F., Culpable Carelessness: Recklessness and Negligence in the Criminal Law (Cambridge 2016), 27, note 6CrossRefGoogle Scholar.
2 For criminal damage, see the Criminal Damage Act 1971, ss. 1(1), 1(2)(a). For assault and battery (case law does not discriminate between these offences on mens rea issues), see R. v Spratt [1990] 1 W.L.R. 1073 (C.A.); R. v Savage & R. v Parmenter [1992] 1 A.C. 699 (C.A.).
3 B (a Minor) v DPP [2000] 2 A.C. 428, 462. Previous cases established the principle that there is a presumption of mens rea: see Sweet v Parsley [1970] A.C. 132, 148. B added that this should be understood subjectively, i.e. as a presumption of at least recklessness. Not all common law systems read the presumption in this way. Some non-UK Commonwealth jurisdictions, such as Canada, Australia, and New Zealand, have a presumption that offences at least require negligence (by means of having a universally applicable “due diligence” defence). This alternative was discussed in Sweet v Parsley (at, e.g., 150, 157–58), but was not adopted, as the justices thought it to be inconsistent with the presumption of innocence established in Woolmington v DPP [1935] A.C. 462. For discussion, see Simester, A.P., Spencer, J.R., Stark, F., Sullivan, G.R. and Virgo, G.J., Simester and Sullivan's Criminal Law: Theory and Doctrine, 7th ed. (Oxford 2019), 213–15Google Scholar.
4 Domestic Violence, Crime and Victims Act 2004, ss. (1)(c), (1)(d)(i).
5 Road Traffic Act 1988, ss. 2A(1)(a)–(b).
6 Ibid., s. 2A(3).
7 Sexual Offences Act 2003, s. 1(1)(c).
8 Ibid., s. 9(c)(i). If the other person is below the age of 13, however, the offence does not require a lack of reasonable belief; in such a case, liability is, in effect, strict with respect to age.
9 See Simester et al., Simester and Sullivan's Criminal Law, 166–67.
10 For versions of the indirect approach, see Kenny, A., Freewill and Responsibility (London 1978), 85Google Scholar; Hampton, J., “Mens Rea” (1990) 7 Social Philosophy and Policy 1, 10, 27–28CrossRefGoogle Scholar; Pillsbury, S.H., “Crimes of Indifference” (1996) 49 Rutgers Law Review 105, 141–53Google Scholar.
11 For general discussion, see Robinson, P., “Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine” (1985) 71 Virginia Law Review 1CrossRefGoogle Scholar; Finkelstein, C., “Involuntary Crimes, Voluntarily Committed” in Shute, S. and Simester, A.P. (eds.), Criminal Law Theory: Doctrines of the General Part (Oxford 2002)Google Scholar.
12 DPP v Beard [1920] A.C. 479; DPP v Majewski [1977] A.C. 443. This only applies to offences of “basic intent”, and not to those of “specific intent”. Paradigmatic examples of crimes of specific intent are murder, wounding with intent, causing GBH with intent, theft, burglary, and handling stolen goods, and most other crimes are of basic intent. However, it is not clear what is supposed to mark the basic/specific intent distinction – for discussion, see Ormerod, D. and Laird, K., Smith and Hogan's Criminal Law, 15th ed. (Oxford 2018), 318–22CrossRefGoogle Scholar; Simester et al., Simester and Sullivan's Criminal Law, 743–46.
13 Hart, H.L.A., Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed. (Oxford 2008), ch. 6CrossRefGoogle Scholar; Simester, A.P., “Can Negligence Be Culpable?” in Horder, J. (ed.), Oxford Essays in Jurisprudence, Fourth Series (Oxford 2000), 95–102Google Scholar; Simester, A.P., “A Disintegrated Theory of Culpability” in Baker, D.J. and Horder, J. (eds.), The Sanctity of Life: The Legacy of Glanville Williams (Cambridge 2013), 190–94Google Scholar; Garvey, S.P., “What's Wrong with Involuntary Manslaughter” (2006) 85 Texas Law Review 333, 363–82Google Scholar; Tadros, V., Criminal Responsibility (Oxford, 2005), ch. 9Google Scholar; Stark, Culpable Carelessness, ch. 8.
14 Smith, H.M., “Culpable Ignorance” (1983) 92 The Philosophical Review 543, 563–66CrossRefGoogle Scholar; Zimmerman, M.J., “Negligence and Moral Responsibility” (1986) 20 Noûs 199, 205–11CrossRefGoogle Scholar; Ginet, C., “The Epistemic Requirements for Moral Responsibility” (2000) 14 Philosophical Perspectives 267, 273–75Google Scholar; Rosen, G., “Skepticism about Moral Responsibility” (2004) 18 Philosophical Perspectives 295, 300–04CrossRefGoogle Scholar; Fischer, J.M. and Tognazzini, N.A., “The Truth about Tracing” (2009) 43 Noûs 531CrossRefGoogle Scholar; Nelkin, D.K. and Rickless, S.C., “Moral Responsibility for Unwitting Omissions: A New Tracing View” in Nelkin, D.K. and Rickless, S.C. (eds.), The Ethics and Law of Omissions (Oxford 2017)CrossRefGoogle Scholar.
15 J.A. Montmarquet, “Culpable Ignorance and Excuses” (1995) 80 Philosophical Studies 41; Sher, G., Who Knew?: Responsibility Without Awareness (Oxford 2009), chs. 5–7CrossRefGoogle Scholar; Clarke, R., Omissions: Agency, Metaphysics, and Responsibility (Oxford 2014), 166–67CrossRefGoogle Scholar.
16 E. Harman, “Does Moral Ignorance Exculpate?” (2011) 24 Ratio 443; Talbert, M., “Unwitting Wrongdoers and the Role of Moral Disagreement in Blame” in Shoemaker, D. (ed.), Oxford Studies in Agency and Responsibility (Oxford 2013), 232–34Google Scholar; E. Mason, “Moral Ignorance and Blameworthiness” (2015) 172 Philosophical Studies 3037, 3040–46.
17 A. Greenberg, “Epistemic Responsibility and Criminal Negligence” (2020) 14 Criminal Law and Philosophy 91, 97–103. For other defences of this claim, see Simester, “Can Negligence Be Culpable?”, 95–102; Simester, “A Disintegrated Theory of Culpability”, 190–93; Stark, Culpable Carelessness, 151–63, 232–36; M. Baron, “Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide” (2020) 14 Criminal Law and Philosophy 69, 77–79. I also think Hart can be interpreted as defending this claim, though he does not always put it in terms of “control”: see Hart, Punishment and Responsibility, 149–52.
18 Hampton, “Mens Rea”, 10–25; Pillsbury, “Crimes of Indifference”, 123–28; Ginet, “The Epistemic Requirements for Moral Responsibility”, 269; Nelkin and Rickless, “Moral Responsibility for Unwitting Omissions”, 106–07, 120–28. An argument of this structure is also made by criminal negligence sceptics, who combine it with objections to tracing approaches, leaving scepticism the only option: see, in particular, Alexander, L. and Ferzan, K.K., Crime and Culpability: A Theory of Criminal Law (Cambridge 2009), ch. 3CrossRefGoogle Scholar. Some defenders of indirect approaches to culpable ignorance (e.g. Zimmerman, “Negligence and Moral Responsibility”; Rosen, “Skepticism about Moral Responsibility”) claim it leads to a general scepticism about moral responsibility, so are also, a fortiori, sceptics about moral responsibility for negligence.
19 More specifically, for gross negligence manslaughter in English law this will be the serious risk of death. It is not entirely clear what “serious” is supposed to add, but I speculate below (see note 42 below).
20 FitzPatrick, W.J., “Moral Responsibility and Normative Ignorance: Answering a New Skeptical Challenge” (2008) 118 Ethics 589, 601–08CrossRefGoogle Scholar.
21 For this criticism of FitzPatrick's negligence-based tracing view (ibid.), see Nelkin and Rickless, “Moral Responsibility for Unwitting Omissions”, 115–16.
22 Peels, R., Responsible Belief: A Theory in Ethics and Epistemology (Oxford 2017), 91–93CrossRefGoogle Scholar.
23 Ibid., at 92.
24 This fourth category is my own addition. Mental actions, in particular, acts of perceptual attention, play a central role in Pillsbury's indirect approach to negligence: see “Crimes of Indifference”, 143–44.
25 See e.g. Sverdlik, S., “Pure Negligence” (1993) 30 American Philosophical Quarterly 137, 139–41Google Scholar; Vargas, M., “The Trouble with Tracing” (2005) 29 Midwest Studies in Philosophy 269CrossRefGoogle Scholar; King, M., “The Problem with Negligence” (2009) 35 Social Theory and Practice 577, 578–82CrossRefGoogle Scholar; Sher, Who Knew?, 34–39; Moore, M.S. and Hurd, H.M., “Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence” (2011) 5 Criminal Law and Philosophy 147, 176–82CrossRefGoogle Scholar; Clarke, Omissions, 108–10, 164–74.
26 See e.g. Smith's, Holly M. two papers, “Non-tracing Cases of Culpable Ignorance” (2011) 5 Criminal Law and Philosophy 115CrossRefGoogle Scholar; “Tracing Cases of Culpable Ignorance” in R. Peels (ed.), Perspectives on Ignorance from Moral and Social Philosophy (London 2017).
27 [2016] EWCA Crim 741, (2016) 151 B.M.L.R. 79.
28 [2017] EWCA Crim 1168, [2018] Q.B. 328.
29 Ibid., at 349. The gross negligence manslaughter test originates in R. v Bateman (1925) 19 Cr. App. R. 8 and was reaffirmed in R. v Adomako [1994] UKHL 6, [1995] 1 A.C. 171.
30 Adomako [1994] UKHL 6, 188.
31 The requirement of a “serious and obvious risk of death” has its roots in R. v Singh [1999] Crim. L.R. 582, and was approved in R. v Misra [2004] EWCA Crim 2375, [2005] 1 Cr. App. R. 21, at [66].
32 For this view, see Williamson, T., “Knowledge as Evidence” (1997) 106 Mind 717CrossRefGoogle Scholar.
33 Rose, [2018] Q.B. 328, 328; see also 349.
34 Ibid., at 354.
35 Ibid., at 351–52; Rudling, at [39]–[42].
36 Laird, K., “The Evolution of Gross Negligence Manslaughter” (2018) 1 Arch. Rev. 6Google Scholar; K. Laird, “R. v Rose (Case Comment)” (2018) Crim. L.R. 76.
37 Rose [2018] Q.B. 328, 354.
38 Laird, “The Evolution of Gross Negligence Manslaughter”, 9.
39 For this criticism, see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter (Law Com. No. 237, 1996), at [3.9]. This criticism has, however, been rejected by the Court of Appeal: see Misra [2004] EWCA Crim 2375, at [58]–[62]. Nevertheless, it is not clear the court's response is convincing (see e.g. Ormerod and Laird, Smith and Hogan's Criminal Law, 594), and we should, at the very least, avoid giving too great an explanatory role to the grossness requirement.
40 In addition, such a doctor is not plausibly grossly negligent in relation to their patient's death, which is required for gross negligence manslaughter, a point I will return to below.
41 I should note that worries about a capacity-relative negligence standard do not apply to an evidence-relative one. For example, some have worried that a standard relative to all the defendant's shortcomings ceases to be an objective standard (see e.g. Ormerod and Laird, Smith and Hogan's Criminal Law, 136–38; cf. Honoré, T., Responsibility and Fault (Oxford 1999), 33–34Google Scholar; for a response, see Simester et al., Simester and Sullivan's Criminal Law, 169–74). One also might have a more practical worry that it is difficult to know whether or not someone had the capacity to recognise risk. Neither worry applies to an evidence-relative test. An evidence-relative test is clearly still objective. And given we are assuming that a fact is in one's evidence if one knows it, one can know a defendant's evidence if one knows what they know, something the criminal law accepts can be proven in other contexts.
42 The courts have not defined what “serious” is supposed to mean, and how it is distinct from “obvious”. But it is natural to read “serious” as denoting that the risk is above a certain threshold of likelihood in some objective but non-evidence-relative sense of probability. To illustrate, Marie Curie's exposure to radiation created a serious risk to her health and her life, but one that was not obvious given what was known at the time.
43 Simester, “A Disintegrated Theory of Culpability”, 179.
44 Ibid., at 179–80.
45 Laird, “The Evolution of Gross Negligence Manslaughter”, 8; also see Laird, “R. v Rose (Case Comment)”, 79–81.
46 Ibid., at 8–9.
47 F. Stark, “In Praise of Rose” (2019) Arch. Rev. 7, 9.
48 Rose [2018] Q.B. 328, 353.
49 [2018] EWCA Crim 2435, [2019] Crim. L.R. 336, at [27].
50 Westminster City Council v Croyalgrange Ltd. [1986] 1 W.L.R. 674, 684.
51 For discussion of how to justify the doctrine, see Sarch, A., Criminally Ignorant: Why the Law Pretends We Know What We Don't (Oxford 2019), chs. 3–4CrossRefGoogle Scholar.
52 I do not think the same considerations will apply to negligence in tort, as tort liability does not require the same kind of culpability or fault.
53 The offence does not require that anyone actually be injured or any property actually be damaged. See the Road Traffic Act, ss. 2A(1)-(3).
54 See Dimock, S., “Please Drink Responsibly: Can the Responsibility of Intoxicated Offenders Be Justified by the Tracing Principle?” in Vincent, N.A., van de Poel, I. and van den Hoven, J. (eds.), Moral Responsibility: Beyond Free Will and Determinism (Dordrecht 2011)Google Scholar; F. Stark, “‘Prior Fault’” [2014] C.L.J. 8.
