Recklessness vs. Negligence (1 Viewer)

[Slaya]

I am just wondering if anyone can explain to me the difference between classing a crime as negligence or recklessness.

I understand that both are forms of 'mens rea' and that negligence is the accused acting a way that fails to prevent harm or death. And recklessness is when the accused realises their action could lead to a crime being committed but take that course anyway.

So, if someone is backing out their car and isnt looking in the rear mirror and hits someone; would it be recklessness because they should have known to check the mirrors or negligence because they acted in a way that failed to prevent harm by not checking the mirrors.

?

Explanations and other specific examples would be helpful.

Thanku!
:wave:

 

[Dark Phoenix]

recklessness is where a person foresaw the danger of their action and acted anyway. negligence is where a person fails to foresee the risk of their action, a risk that an 'ordinary person' would have foreseen under the circumstances. negligence is often a consequence of a lack of common sense while recklessness involves a lack of caring.

in terms of ur example i think it would come under negligence as at that exact moment of reversing the car the person fails to foresee the risk of their action.

an example for reckless driving may be under the influence of alcohol and drugs at the same time and deciding to drive which then results to a serious accident. i guess u could say that it is a lack of caring. or another one maybe (this is from mq book) a person pushing someone in a precarious position. if that person were to fall and die or be seriously injured, the perpetrator could be held responsible for the death or injury for that person i.e. reckessness

but i do feel ur dilemma. it is hard to decipher whether cases are of reckless or of negligence. just look through ur book for different cases and then u get a general idea on whether the case is recklessness or negligence

 

[lcx]

ok so for these 2 cases. if sum1 is found to be reckless are they guilty of the offence? and if they are negligent guilty as well? but ofcoarse the degree of their penalites are less than if they intentionally commited the crime?
becasue for mens rea are lawyers trying to prove
1-intention
2-recklessness
3-negligance
in terms of how serious their penalties would end up being??

 

[melsc]

recklessness = subjective
negligence = objective

 

[holofernes]

Hi ...

This is probably too late to help you, but may be of some use to others.

Negligence and recklessness are examples of elements of mens rea in certain crimes, but not all crimes.

The example that you use with a car is a bit problematic because the law has been modified by statute through the creation of the offences of dangerous driving (s52A Crimes Act) and negligent driving (s42 Road Transport (S&TM) Act), so I'm going to ignore that for the moment.

Negligence
Generally negligence is not part of the mens rea of a crime. This is because the law punishes only those who intend to commit a crime. If you are negligent, by definition you didn't intend the the consequence, even though you might have fallen short of a standard. Excluding negligent driving, there are only 2 exceptions to this that I know of:

• manslaughter by criminal negligence (a crime defined in common law), and
• causing grevious bodily harm (s54 Crimes Act)

The meaning of negligence is not the same one as you might be used to e.g. the breach of a duty of care in a civil tortious context. It is a "great falling short" that would merit attracting criminal liability -- the authority for this is Nydam (1977). It has also been described as "wicked" or "culpable".

Recklessness
Like you say, recklessness is when you proceed with an act disregarding the potential risk that might happen, despite forseeing that it might happen. Recklessness can constitute the mens rea of most crimes, except inchoate ones (inchoate offences are those of attempt, conspiracy & incitement) and crimes of complicity (aiding and abetting, accessories before and after the fact, etc).

There are 2 types of recklessness in criminal law, that in murder, and that for other offences.

The standard of recklessness in murder is that the risk must have been a probable one. For other offences, it is enough that the risk be a "possible" one. If an accused believes that the risk is impossible, or that they never thought about the risk at all (inadvertence), you don't have recklessness.

Hope this helps