The concept of Negligence sits uneasily with criminal liability. All modern criminal theories consist predominately of a Retributivism-Utilitarianism dichotomy. 1 While a Retributivist asserts that punishment is awarded by virtue of the accused's moral culpability, the Utilitarian seeks to advance the net social benefit by capitalizing on punishment's deterrent effect. 2 This is predicated on the notion of a 'felicific calculus' by which a rational man with the freedom of choice will avoid criminal conduct because the benefits from his crime are outweighed by the potential pains from punishments.
Despite these differing objectives, both theories are critically dependant upon 2 factors: 1) The accused's knowledge of the harmful nature of his conduct and 2) his choice of carrying on with the conduct despite this knowledge. However, a negligent actor is subjectively unaware of the unjustified risk created by his conduct. As such, it is dubious that the accused is morally blameworthy, and that punishment in this context has any deterrence value – He neither intended, nor knew that he was causing any harm. From a reform perspective, this paper seeks to examine the nature of negligence and demonstrate why it should be decriminalised.
The Province of Negligence Explored Negligence is defined as a person's failure to live up to an objective standard of behaviour regardless of his capacity to comply. 4 Contrary to rashness, which is generally accepted as 'conscious risk taking'5, a negligent actor is conceptually unaware of the unreasonable risk generated by his conduct. Hence, a person purely motivated by kindness can be held negligent if he strikes a match at night to assist another who was struggling to fix a gasoline onto a car – any reasonable person will appreciate the danger thereby generated.
As a result, an intellectually impaired, but not yet legally insane actor can nevertheless be held liable for negligence. 7 In the civil context, this is perfectly justifiable because Tort law seeks to compensate rather than to punish. Blameworthiness here is relative, not absolute. The inquiry is about who among the 2 parties should be held to bear a loss that has already occurred; and the capability of providing a compensation are often taken into consideration in determining liability. (E. g.Insurance)
The imposition of an objective standard serves to promote social coordination: We can expect others to behave like an ordinary and to order our lives according to that expectation. If we are injured by any anomalous8 behaviour, we can expect to be compensated. The Incompatibility of Criminal Law and Negligence However, this does not justify an indiscriminate transplantation of civil negligence into the criminal realm. After criminalising negligence in s304A9 of the penal code, the court further extended the civil standard of care in the criminal context in Lim Poh Eng v PP10 without qualification.
This is an act that ignores the fundamental principle of our criminal jurisdictions. The local penal code as drafted by Lord Macaulay was conceived from a utilitarian perspective,11 the central philosophy of which was aptly expounded by Jeremy Bentham as: 'All punishment in itself is evil. Upon the premise of utility, it ought o be admitted in as far as it promises to exclude some greater evil. '12 While succinctly pointing out the deterrent role of punishments, Bentham also highlighted the inherent problems of criminalising negligence.
One can never be deterred from causing harm ignorantly. There is no utility by enacting a legally objective standard, and then punish those who are incapable of attaining; or by a momentary lapse of mind, accidentally deviated from that standard. Even if the negligent kind man above were imprisoned for 2 years, he is unlikely to never be negligent again without refraining from all social activities. Contrary to the utilitarian principle, punishment in this context imposed an additional loss13 on top of that which has already been suffered by the victim without gaining any benefit.
The 'incompatibility' problem was manifested when the Court of Appeal in Ng Keng Yong v PP imported the Nettleship v Weston14 principle into criminal law. The court explained that by convicting a trainee OOW15 for a failure to attain the standard of a reasonably competent OOW will promote the safety of everyone around the OOW in the future. However, navigation is a complex skill that requires intensive training to develop. It is not possible to expect from a trainee the competency she has not yet obtained.
The standard of safety will not improve however harsh the criminal punishment might be. This disregards the fact that Nettleship was decided from a risk-distribution perspective: The presence of driving insurance means that it is fairer for pedestrians to expect reasonable competency in all drivers and claim any compensation should any driver fall below that standard. Again, it concerns the tortious aim of distributing a pre-existing social loss. In the criminal context, the picture is completely different.
If a negligent actor cannot be deterred, there is no reason for the state to inflict upon him additional pain accompanied by the social stigma of being a criminal, on top of the civil compensation for which he is already liable. Subjectivized Standard of Care: Fairer, Yet Incomplete A brilliant, yet imperfect, solution as proposed by academics and legal theorists has been to subjectivize criminal negligence. HLA Hart suggested in 'Negligence, Mens Rea and the Criminal Law'16 a 2 stage test that adjusts the standard of negligence to account for the accused's capacity to comply.
17 Here, criminal negligence is only justified if the accused failed to comply with the standard that is attainable by a reasonable person with the accused's mental and physical capacities. This represents a fairer position in deciding criminal negligence since no one would be punished for a failure to achieve a certain objective standard. Indeed, this subjectivized criminal standard has been accepted by Professor Victor Ramraj18 and Michael Hor. 19 Ng Keng Yong would no doubt have been decided differently under this test. The Problems With Hart's Test
However intuitively attractive Hart's test is, it is an objective test nevertheless. While it mitigates the harshness of Ng Keng Yong by customizing the objective standard according to a reasonable man in the accused's shoes, whether the accused was in fact capable of achieving that standard is immaterial. It misses the main point that a negligent actor is conceptually inadvertent to the unreasonable risk however subjectivized the standard that law imposes on him. Negligence is an accident, a momentary lapse of mind. While the prospect of punishment deters the intention to cause harm, it does not deter ignorance or mere incompetence.
Furthermore, the precise manner in subjectivising the standard is inherently ambiguous and indeterminate. Age, disabilities and the status of being a trainee are straightforward factors. Complications arise when the accused is intellectually incompetent but not legally insane. On similar facts, it seems legally unacceptable to acquit an adult with IQ 8020 and imprison another with IQ 18021. A worst scenario is when the accused has so many peculiar characteristics that it becomes practically impossible to determine a coherent standard that applies to him.