Conflict rising from using negligence in cases, is, if it is permissible to take into account the defendant's state of mind when the defendant has special knowledge an ordinary person would not have had? Uncertainty therefore is presented as to whether the negligence test should take into account the individual's personal inabilities to appreciate the risk of the prescribed harm.
Although, it is given when the defendant has capacity for foresight, then a higher standard will be expected25, so if you have the ability to appreciate the risk of the proscribed harm, then a higher standard will be required of you. Uncertainty also transpired in asking whether or not the test should take into account if the defendant had some personal inability to appreciate the risk of the proscribed harm, with the usual answer being if D has less capacity for foresight, this will not help him, since the D ought to have known the consequences.
Because of this strictness, the courts have accepted the objective test should be modified in certain circumstances, such as when the defendant is a child. In RSPA v C26, it was questioned if a 15 year old girl was negligent in not taking her injured cat to the vet, being judged by the standard of a reasonable girl of her own age. It was concluded that this was in fact a sufficient qualification for determining negligence, however it must be treated with caution.
Although this led to further debate, with academics questioning if age can be a determining factor, could it undermine the policy of negligence itself. For instance, if a 14 year old is caught joyriding, technically his age can be used as a defence, some arguing this being inappropriate, since the defendant of that age should know the consequences. Consequently, it has been suggested the objective standard of negligence should to a certain extent take into account characteristics such as age, hearing and sight27.
Whilst this may be seen as fair, the courts possibly would be reluctant to incorporate this, since it undermines the objective principle. In conclusion, throughout the years, there has been general uncertainty on the definition of these mens rea elements and how to apply them. One thing that is and will remain certain is that it's the courts discretion on which direction to take.
A, Norrie. 'After Woollin' Crime, Reason & History, (1999)
Dine, Janet. Gobert, James. Wilson, William. Cases & Materials On Criminal Law (Oxford University Press, 2006)
Martin, Jacqueline & Storey, Tony. Unlocking Criminal Law (Hodder Arnold, 2007)
Ormerod, David. Smith & Hogan Criminal Law 12th Edition (Oxford University Press, 2008)