Topic 11: Crimes of Carelessness (Weeks 2-3) : Subjective and Objective Blameworthiness

Year 1 / Criminal Law – Topic 11
Topic 11: Crimes of Carelessness (Weeks 2-

3)
Subjective and Objective Blameworthiness
We looked at blame concepts last term in a number of ways. We noted that

criminal responsibility for the most serious crimes includes mens rea
requirements that the defendant has intellectually engaged with either:
 the harmful consequences of an action (i.e. that he intended a

particular harm or was reckless as to it); or
 the circumstances of his or her action that makes it appropriate to
criminalise that action in a particular way (e.g. that a person realises
that her conduct was dishonest by objective standards or that property
belonged to another person for the purposes of criminal damage).
These are ‘subjective’ fault states in that the individual must have thought
about and recognised the risks of harm. You may have noted, however, when
we looked at gross negligence manslaughter that sometimes it is not
necessary for a defendant in fact to realise that a harm may occur. Gross
negligence applies criminal liability using objective standards: fault is imposed
not on the basis of what the defendant in fact thought but on the basis of what
others (in the form of the jury in a gross negligence manslaughter conviction)
decide he or she should have thought or recognised.
Punishing dangerousness and the thoughtless
Let’s try this concept further and see how far it seems appropriate to punish
conduct where a defendant does not identify the harmfulness (or other
wrongfulness) of his or her conduct.
Think about the following situations. In each, consider what level of criminality
(if any) might be appropriate. Try not to worry about the actual law – the point
here is to test your instincts about the sorts of things we blame people for. In
giving your reasons (below) think about why you believe it is or is not
appropriate to blame someone in this way.
Situation 1:
Art has driven his car faster than the speed limit while checking his mobile
phone. Due to this he fails to identify that a person is crossing the road. He
hits her and kills her.
Issue Answer and reasons.

Is Art a murderer?
Is it appropriate to blame him for
manslaughter?
Is it appropriate to blame him for
dangerous driving?
Situation 2:
Ben works as a doctor and fails to follow the correct procedures while
administering an injection. The patient dies.

Would it be appropriate to blame
Ben as a murderer?
Would it be appropriate to blame him
for manslaughter?
Should Ben be civilly liable to the
patient’s family?
Would it make a difference why Ben
made the mistake?
What if Ben was very tired after an
extremely long shift?
What if Ben was distracted by a
rugby game showing on a TV
nearby?
Situation 3:
Corrie has driven her car over the speed limit and crashes into a parked car
(fortunately there is no one in it).

Is it appropriate to blame Corrie for

criminal damage?
Is it appropriate to blame Corrie for
careless driving?
Situation 4:
Dan has driven his car while unfit to do so due to an excess of alcohol.

Dan realised he had had too much to
drink but could not get home
otherwise. Is it appropriate to convict
him for drink driving?
Dan did not realise that he was too
drunk to drive because a friend
‘spiked’ his drinks as a joke. Should
Dan be guilty of ‘drunk driving’?
Criminal blame without consciousness of risk
One thing you might have noticed is that it is possible to think about punishing
dangerous conduct even in situations where they have not thought about the
risks they are creating. This takes us some way from the sorts of situations we
have looked at before where the mens rea required actual foresight of a
harmful consequence. You might be inclined to punish people for careless or
drink driving even though they did not (or because they did not) think about
the risks they were creating. What is in such cases that makes them
blameworthy?
You will need to research driving offences for this week’s PBL problem. Note
the fault state: it is completely objective (so there is neither a requirement to
prove what the defendant thought nor does the criminal law use a two-
pronged subjective/objective rest like for dishonesty). Think about this. Why
do you think the criminal law is being used in this way? What is it about
driving that might justify setting a purely objective standard? In R v G, the

House of Lords decided that an objective standard of blame was not
appropriate for criminal damage. Think back to the judgment there. Why do
you think criminal damage might require subjective recklessness as a mens
rea but driving offences require only objective negligence? This is something
we will come back to later in the year when we look at offences of 'strict
liability.'
Blame states for elements of offences
It is worth noting that we are not simply talking about crimes but elements of
crimes. While there are some crimes of strict liability or of negligence (i.e.
where all offence elements are strict or all are based on negligence or
carelessness), in fact we will also see that some crimes have elements of
negligence and of strict liability in other potentially more serious-seeming
crimes which might also require intention or recklessness for different
elements. In other words we need to be methodical and identify different
mens rea elements for offences (and be willing to note that different parts of
the actus reus of an offence might attract different mens rea states).
Summary and Concluding Thoughts
We have learnt that we can broadly categorise blame states as:
 Subjective (intention, recklessness): the defendant can be blamed

because he or she has foreseen the relevant harm or wrong (or it was
his or her purpose to achieve it);
 Objective (negligence, gross negligence, carelessness): the defendant
can be blamed because he or she should have foreseen the harm or
wrong or she or he should have realised the quality of his or her act;
and
 Strict liability: the defendant can be blamed for a crime simply because
the relevant result happened or because the relevant condition
occurred.
Note that in some of the cases we have looked at in this topic, a defendant
can be liable without having fully foreseen the harm for which he or she is
being punished. This is called ‘constructive’ criminal liability (blame is
constructed out of a what is really a lesser offence). Why do you think this is?
What rationale might there be for punishing a person who causes a death due
to a dangerous unlawful act without proving the person foresaw death as a
consequence? There are arguments that a person should only be punished
for the harms he or she actually foresaw. This is the 'correspondence
principle'? How far do you think the criminal law should take this limit on
criminal responsibility?

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Year 1 / Criminal Law – Topic 11

Topic 11: Crimes of Carelessness (Weeks 2-

We looked at blame concepts last term in a number of ways. We noted that

 the harmful consequences of an action (i.e. that he intended a

Punishing dangerousness and the thoughtless

Issue Answer and reasons.

Issue Answer and reasons.

Issue Answer and reasons.

Is it appropriate to blame Corrie for

Issue Answer and reasons.

Criminal blame without consciousness of risk

driving that might justify setting a purely objective standard? In R v G, the

Blame states for elements of offences

Summary and Concluding Thoughts

We have learnt that we can broadly categorise blame states as:

 Subjective (intention, recklessness): the defendant can be blamed

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