Chapter 3: Negligence
Online Crime Chapter 3: Negligence in crime
Of course negligence is essentially a concept in civil law, namely conduct falling below the standards expected for the protection of others against harm. A person acts negligently if he or she departs from the conduct expected of a reasonably prudent person acting under similar circumstances, a failure to meet a required standard. In a crime based on negligence, the test is thus objective and the defendant's state of mind, intention or recklessness (absence thereof) is not capable of founding a defence if the objective test is adverse to the defendant. It is even arguable that negligence does not constitute mens rea at all.
3.1.1 Having said this, a person with some special knowledge not generally known is subject to an altered test as regards criminal negligence: namely whether the act complained of would have been committed by a reasonable person with the defendant's relevant special knowledge. This approach is given statutory force in relation to dangerous and careless driving. Generally, that the defendant has less knowledge than the reasonable person does not help the defence in offences founded on negligence. The only firm exception to this approach is in relation to children R (RSPCA) v C EWHC 1989 Admin. It could be argued that by extension limitations other than in consequence of age ought to be relevant as qualifying the objective test but there is scant judicial authority for this proposition.
3.1.2 Few serious crimes are founded on negligence. The best known is manslaughter by gross negligence, even here the word ‘gross' imports an extension of ordinary principles of negligence. Similarly as regards degrees of negligence, road traffic legislation imports degrees of fault in that for dangerous driving contrary to section 2 Road Traffic Act 1991 it has to be shown that the defendant's driving fell far below what would be expected of a competent and careful driver whereas for careless driving contrary to section 3 of the same Act simply falling below what would be expected as aforesaid will suffice. The degree of fault required for causing death by dangerous driving is generally taken to be less than that for manslaughter. Indeed, the offence of causing death by reckless driving (the predecessor of causing death by dangerous driving) was brought in because of a perceived reluctance on the part of juries to convict of ‘vehicular manslaughter'. Although few serious crimes are founded on negligence as aforesaid, secondary elements of some serious crimes may import negligence, for example Section 9 Sexual Offences Act 2003 (sexual activity with a child).
3.2 Strict Liability
3.2.1 Some crimes may be proved without proof of intention, recklessness or negligence either in themselves or in relation to some element of the crime section 5 Sexual Offences Act 2003 (rape of a child under 13). It will be noted that this is a serious offence and not a matter of a regulatory nature as might generally be expected of strict liability offences. Mens rea is irrelevant, all that needs to be proved is actus reus and to the extent that evidence as to mens rea may be prejudicial its admission may be unfair and open any conviction to challenge. Nearly all offences of strict liability are statutory and largely summary only.
3.2.2 The Human Rights Act 1998 and strict liability – The presumption of innocence is enshrined in the ECHR (Article 6.2) and it has been argued that strict liability contravenes this guaranteed right. The European Court however has held that strict liability offences were compatible with the relevant article Salibaku v France (1998) 1998 13 EHRR 379. Having said this, the courts have tended in the recent past to be less willing to construe statutes as importing strict liability where the words of statute are silent as to mens rea than was formerly the case at various points - see B (A Minor) v DPP  2 AC 428. This shift would not seem to be directly connected with the Human Rights Act but a distinct trend.
3.2.3 How then is an offence of strict liability to be identified? B seems to establish firmly that it is for the words of the relevant statute to rebut the presumption of mens rea. That presumption imports implicitly the word ‘knowingly' and sometimes the word is explicit in statute. Albeit that ‘wilfully' would seem to similarly import a mental element, some statutory offences where ‘wilfully' appears have been held to be offences of strict liability. Sometimes words importing mens rea will appear in some sections of a statute but not in others. This does not mean that that the offences created by sections not including the mens rea word or words are necessarily offences of strict liability. The unreal distinction between ‘real' and regulatory or ‘quasi' crime involving none of the odium attracted by ‘real' crime is sometimes invoked to explain or justify strict liability in the latter case but the distinction is false. Activity is either criminal or non-criminal.
3.2.4 Where an offence is directed to those who follow a particular trade or profession only as opposed to the public generally (ie is ‘regulatory' in nature –for example many, but not all, offences under the Licensing Act 2003) the courts are much more likely to construe the offence as being one of strict liability. Experience tells that the imposition of strict liability is not necessarily successful in securing compliance with regulatory offences, especially in hard cases where the offender can ask with some justification ‘what more could I have done?'
3.2.5 Strict liability and drugs offences – In the 1960s there were a number of decisions by the appellate courts which could fairly be described as startling imposing strict liability in respect of drugs offences. The House of Lords gave approval for this approach in Warner v MPC  AC 256 where the appellant, who had a sideline selling scent, collected two boxes he stated he believed contained scent. In fact one of the boxes contained drugs. With one dissenter, the speeches in the House of Lords were to the effect that the offence of possessing prohibited drugs was one of strict liability. All that was needed to be proved was that the appellant was in possession of the box containing something. Warner seems to be a case of policy considerations (drugs are a very bad thing for society – similar considerations may apply to environmental offences given current attitudes to polluting activity) operating as a distorting mirror. The speeches of the majority could fairly be described as muddled and difficult to reconcile. Statute came to the rescue via section 28 Misuse of Drugs Act 1971, which made lack of knowledge a defence to charges including possession of a controlled drug. It provides as follows:
(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
(3) Where in any proceedings for an offence to which this section applies it is necessary, ifthe accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof—
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.
It will be noted that the burden is on the defendant and an objective element is introduced.
3.2.6 In the second case to reach the House of Lords on strict liability Sweet v Parsley  UKHL 1 (23 January 1969) , the House overruled previous case law that being ‘concerned in the management of premises used for smoking cannabis' was an offence of strict liability. The relevant statutory provision under the Misuse of Drugs 1971 not only creates a statutory requirement for mens rea but also places the burden of proof in this respect on the prosecution.
3.2.7 The objections to strict liability and responses to them – a number of arguments have been advanced against strict liability offences. Perhaps the main objection to strict liability offences, which have multiplied in recent years, is that they are unfair. People who have acted without fault as would be ordinarily understood, including those who have taken such steps as would be considered reasonable to prevent the mischief complained of, are punished. It is also queried whether strict liability offences are necessary. What purpose do they serve? The evidence that strict liability offences result in greater compliance with the relevant objectives of statute is scant. It also gives rise to difficulties as regards sentencing. A defendant who has deliberately committed a prohibited act, a defendant who has done so negligently and a defendant who has no means of knowing that the offence has been committed by his or her acts or omissions should plainly be dealt with in different ways as regards sentence. How is the sentence to proceed, especially as evidence of culpability on the one hand or absence of fault on the other is inadmissible? The mental element may appear to be highly relevant in relation to sentencing for a strict liability offence, for example as regards under age sex. Justification for strict liability offences is often advanced on the public interest, a phrase carrying echoes of Humpty Dumpty in Alice Through the Looking Glass `When I use a word (or in this case phrase) it means just what I choose it to mean - neither more nor less' or that it avoids the expense of potentially extensive enquiry as regards the state of mind of the defendant.
3.2.8 Due diligence - may arise in statutory offences. It is unlikely in the extreme that English law will find due diligence defences without explicit statutory provision. It could be argued that such an approach offends against the presumption of innocence in that it creates a burden on the defendant and will tend to necessitate the calling of evidence by him or her. Having said this, reverse burdens have been found in other contexts not to contravene convention rights. Furthermore, due diligence defences plainly mitigate the unfairness aspects of strict liability offences mentioned above.