Mental Element

Fault

The fact that the prosecution establishes that the defendant caused the particular prohibited conduct, is not usually enough to establish criminal responsibility.  Offences usually require a mental element. More serious crimes require a mental element such as intention or recklessness.

Other,  particularly regulatory, offences may require only proof of the act and causation where applicable. They are “strict liability” offences.

The law may require some subjective fault on the part of the accused.  This may be based on knowledge or will. It may involve actual consideration of the risk that a certain consequence may follow, but a deliberate disregard of that risk. It is usually difficult/impossible to prove that the person concerned defendant actually averted to the risk. However, the court will make a finding with reference to the objective evidence.  The law may presume that the person considered the risk where any reasonable person would have averted to the risk concerned.

Intent

The more serious crimes require proof of intention.  Intention does not just mean considered premeditation or planning.  Intention will often involve the purposeful reaching of the desired objective.  It may involve a wish and desire to bring about a particular result.

However, intent at law is usually wider in scope. The result may not be desired, but the act may be deliberate and the person who does it may know the consequence. This is usually sufficient for intent under the criminal law.

It is not necessary to show any desire in a broader sense to bring about a particular result. Intent is usually also found where a person does a deliberate act with the knowledge that a particular consequence is highly probable.

Although the person may not necessarily desire the consequence, where a particular outcome is highly probable, it will usually be deemed to be intended.  If a person knows or must know that a particular consequence is certain or virtually certain, he will usually be held to have acted intentionally.

Some older statutes refer to malice, as the “mental” ingredient in an offence.  Malice in this contest does not refer to ill will, but to intention or recklessness.  Malice traditionally would have required conscious aversion to the risk.

The wording of many offences requires that the relevant act be done knowingly.  Although all manner of philosophical questions may be raised regarding knowledge, the courts take a pragmatic and common sense view.

Recklessness

Recklessness is the basis or an alternative basis to knowledge, in respect of many serious crimes.  Recklessness involves taking an unjustifiable (usually a high)  risk of something with adverse consequences.

A  possibility is that a person averts to a risk but unreasonably decides that it does not exist.  This is likely to be classified as reckless.

It has been controversial as to whether recklessness requires that the defendant consciously consider the risk.  If a person does something that is objectively,  extremely risky, such as shooting into a house but did not consciously avert to the possibility of a person being there, the question arises as to whether this is recklessness. In practice, the court is very likely to find recklessness, without trying to ascertain the actual state of consciousness or stream of thought involved.

In cases where a statute required recklessness, the courts have allowed for the possibility that this may include running an objectively very high risk, without the necessity of consciously averting to the adverse consequences.

There is a degree of conflict between the relevant cases and authorities as to whether there may be recklessness for a person does not consciously consider a particular risk, but objectively speaking any reasonable person would or often been aware of the risk. Courts have tended to the view that deliberately closing one’s mind to an obvious risk is equivalent to a knowledge of the risk.

The  House of Lords held in 2003  in the context of a statutory definition of  recklessness, that it required a conscious consideration / – conscious perception of that risk.

Gross Negligence

Some criminal offences are based on gross negligence or some lesser degree of negligence.  Negligence is the failure to meet the standard of reasonably careful people.  It is similar to the concept of negligence in relation to civil liability. Negligence focuses on an objective standard of behaviour rather than a conscious state of mind.

Negligence is not generally a standard in respect of the more serious crimes that seek to punish culpable behaviour.  However, there are many offences where negligence is the standard.

Some criminal offences that gross negligence be proved.  The most serious crime based on negligence is manslaughter. Gross negligence is required

Where negligence is required for an offence, there would be no liability where there is an accident without fault. If an incident happens, which could not reasonably be foreseen, there will not generally be criminal liability unless it is a so-called strict liability offence.

Proof

Where intention or recklessness must be proved, this may only be done indirectly in almost all cases.  It is not possible to provide direct evidence of a person’s state of mind unless he or she admits the position. As with the determination of other matters of fact, intention and recklessness are decided by the judge or jury (depending on whether it is a summary case or trial by jury) on the basis of common sense knowledge of the world and on drawing conclusions from the circumstances in accordance with the ordinary course of things.

In many contexts, a person is presumed to intend natural and probable consequences of his action. Where they are shown,  it may be a matter for the defence to counter this. The accused would have to prove that he did not intend the natural and probable consequences of his actions in the particular circumstances.

Many offences are strict liability offences.  This means that the matter of intention, recklessness, or negligence is irrelevant. It is a matter of interpretation for the court as to whether an offence created by statute requires intention, recklessness or proof of negligence.  It is generally presumed that this is intended.  Lawmakers are presumed not to create offences that may be committed without an element of blame.

Strict Liability

Many statutory offences in the regulatory area are strict liability.  It is probably fair to say that the presumption is not as strong in relation to so-called regulatory offences.  Where the offences — are a necessary part of the regulatory system of, say, of dealing with particular health,  safety, or regulatory concerns, then it is more likely that the offence is absolute and is committed irrespective of fault.  Frequently, regulatory schemes require strict liability.

As with civil liability, many regulatory schemes make an employer responsible for the offences of his employees and others under his control.  The general principle is that if an employer has a responsibility in a particular business context, he or it cannot offload that duty by delegating it to another. In this case, fault on the part of the employer is not an issue.