Search

Do the actions of parents in withholding medical treatment from their children due to religious influence show wanton or reckless disregard for the safety and lives of their children? This project investigates the morally and legally complicated issue of the influence of religious beliefs in criminal negligence cases. My MRP is animated by the idea that similar cases in the past have been treated with leniency and ought to be given stricter punishments. I focus in particular on cases in which parents opt for alternative remedies or faith healing for ill children in ignorance or defiance of available medical treatments. I investigate the role of mistake of fact based on honest belief in prosecutions for criminal negligence causing death. Furthermore, I develop an argument that reliance on religious beliefs should not exculpate an accused parent from liability in criminal negligence cases. I argue that similar cases in the past have been treated with great leniency. This research proposes that cases of faith healing deaths be treated as cases of manslaughter, namely under section 222(5)(b), and that a minimum sentence of six years’ imprisonment be imposed for the death of vulnerable children.

This article focuses on the problems of the application of AI as a tool of crime from the perspective of the norms and principles of Criminal law. The article discusses the question of how the legal framework in the area of culpability determination could be applied to offenses committed with the use of AI. The article presents an analysis of the current state in the sphere of criminal law for both intentional and negligent offenses as well as a comparative analysis of these two forms of culpability. Part of the work is devoted to culpability in intentional crimes. Results of analysis in the paper demonstrate that the law-enforcer and the legislator should reconsider the approach to determining culpability in the case of the application of artificial intelligence systems for committing intentional crimes. As an artificial intelligence system, in some sense, has its own designed cognition and will, courts could not rely on the traditional concept of culpability in intentional crimes, where the intent is clearly determined in accordance with the actions of the criminal. Criminal negligence is reviewed in the article from the perspective of a developer’s criminal liability. The developer is considered as a person who may influence on and anticipate harm caused by AI system that he/she created. If product developers are free from any form of criminal liability for harm caused by their products, it would lead to highly negative social consequences. The situation when a person developing AI system has to take into consideration all potential harm caused by the product also has negative social consequences. The authors conclude that the balance between these two extremums should be found. The authors conclude that the current legal framework does not conform to the goal of a culpability determination for the crime where AI is a tool.

The article introduces analysis of subjective grounds for guilt – a necessary condition for criminal liability of every person. Guilt is defined as a condemned and punishable by the state culprit’s integral relation (either intentional or through negligence) with the crime or criminal misdemeanour. The article reveals guilt’s connection with general attributes of a criminal act (age, capacity) and puts forward a justification for a state’s right and obligation both in legal and social sense to punish culprits. The article is based on research of application of guilt concept in case-law since the Lithuanian Criminal Code came into force (May 1, 2013). It shows that occasional defects and mistakes occur as unclear, ambiguous conclusions about forms, contents of guilt or as inconsistent characterizations of guilt forms, separate features of its sorts. Also, consequences caused by these mistakes for participants in the criminal process are evaluated. The article also explores provisions of criminal law which determine the concept of guilt. Analysis led to conclusion that reckless guilt in the Criminal Code is defined insufficiently, because it does not provide any description of intellectual reckless guilt (criminal negligence) or is described only partially (criminally false assumption). In justification of negligent guilt in culprit’s criminal act, objective and subjective criteria should be used for both forms of negligence. Also, differences and similarities of criminal negligence and criminally false assumption are presented.

‘Attempted negligence’ is a category of criminal offense that many jurists and philosophers have law have deemed conceptually incoherent. In his Attempts: In the Philosophy of Action and the Criminal Law, Gideon Yaffe challenges this dismissal, anchoring his argument in cases of what he calls ‘mental self-management’ in which agents plan to bring about that they perform unintentional actions at a later time. He plausibly argues that mental self-management-type attempted negligence is possible. However, his account raises the question whether such attempts can be successful: whether, in other words, attempts to perform unintentional actions at a later time could issue in actions that are, indeed, unintentional. Intuitively, at least, it would seem that we should answer in the affirmative. However, that answer poses problems for a plausible and widely-held account of intentional action. Al Mele, responding to Yaffe’s account, has pointed out this problem without, I think, providing a satisfactory resolution. I propose another way of vindicating the possibility of successful attempted negligence with small, if significant, revision to the standard view of intentional action. In these cases, I argue, agents fail to act intentionally because they render themselves, through their acts of self-management, unaware that they are successfully executing their intentions. Moreover, I argue that these agents’ intentions to bring about that they perform unintentional actions do not commit them to acting intentionally because of the nature of intentions to bring about actions. I offer an account of the intention to bring about that one A’s and defend it against some objections.

EnglishThe ongoing reforms demonstrate how the so-called “post-modernity” may tend towards the recomposition of a new and worthy system of criminal law. Prison detention must, of course, be drastically contained within absolutely necessary limits. At the same time, the principle of re-education (and humanity) of the punishment must permeate the whole system, imposing to lay down rules that are strictly respondent to the need for the recipient’s effective orientation towards the protected assets and values. It is likewise necessary to assure the complete fulfilment of the principles of offensiveness and individual criminal liability, paying the utmost attention to correctly establishing the structure of the criminal offense in its peculiar ‘substantial components’. According to these fundamental rules of criminal law, punishment should be inflicted on the sole assumption of a really dominable and offensive fact; that is a fact committed with intent and actual (criminal intent) or, at least, potential (criminal negligence) knowledge of its effective contents of social disvalue. italianoLe riforme in divenire dimostrano come la c.d. post-modernita possa tendere in realta verso la ricomposizione di un nuovo e meritevole sistema del diritto penale. Di certo, occorre che la detenzione in carcere sia drasticamente contenuta nei limiti dell’assolutamente necessario; mentre, al contempo, il principio di rieducativita (ed umanita) della pena deve permeare l’intero sistema, imponendo di collegare all’esigenza di un effettivo orientamento del destinatario, verso i beni e i valori tutelati, la posizione di norme conoscibili, nonche la piena realizzazione dei principi di offensivita e di personalita della responsabilita penale, prestando la massima attenzione nel fondare correttamente la struttura dell’illecito penale nelle sue peculiari ‘componenti sostanziali’; irrogando la pena sul solo presupposto di un fatto offensivo realmente dominabile e per cio stesso voluto e rappresentato (dolo) o almeno rappresentabile (colpa) negli effettivi contenuti di disvalore sociale.

There has been a tendency for the criminal law to be used primarily as a tool of deterrence in corporate governance. Adopting the Singapore statutory framework as a case study, this paper explores whether we should criminalise directorial negligence in an effort to better secure corporate governance standards. Is it a good idea to brand negligent directors as criminals? If so, what should be the proper standard for criminal negligence? On what grounds, then, might we justify criminalising directorial negligence? This paper explores the merits of various possible rationales which might be mounted in support of criminalisation. It argues that directorial negligence ought not be criminalised, and that the best response to directorial negligence is instead a pecuniary penalty, which combines the punitive aspect of criminal law and the civil response, but which removes the condemnation and stigma associated with the criminal law.

Jacob Mathew vs. State of Punjab & Anr. (2005) Case, Supreme Court said that the jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The husband of the first respondent (one Divakar) approached the appellant herein, complaining of a pain in the chest on 22.04.2002. On 25.04.2002, the appellant unsuccessfully attempted to perform an angioplasty on Divakar. Same day at around 3.30 p.m., by-pass surgery was conducted on Divakar in the same hospital. Subsequently, various complications developed and eventually Divakar died on 09.05.2002. On 14.05.2002, the first respondent lodged a complaint against the appellant and others under section 304A IPC. The Ld. Magistrate by his order dated 11.12.2006 came to the prima facie conclusion that there exists material to try the accused for the offence punishable under section 304A IPC. Andhra Pradesh High Court opined that the material on record “clearly shows negligence on the part of Appeallant” and declined to quash the proceedings. Later Supreme Court set aside the judgment under appeal and also the proceedings of the trial court dated 11.12.2006.

I join the chorus of congratulations for Larry Alexander, Kim Ferzan, and Stephen Morse for the contributions their book makes to our understanding of the criminal law.1 The book seeks to achieve nothing less than a comprehensive theory of the crime and punishment, one that tries to reorient the thinking of scholars and policy makers toward a single theory of justice based on blameworthiness and retribution. Regardless of whether we are ultimately convinced by the conclusions, we can all admire the scholarly ambition and risk-taking the project requires, and appreciate the many insights the authors provide. I learned a lot from this book; it both advanced and unsettled my prior thinking on a whole range of topics. But ultimately the book failed to persuade me. I remain far from certain that a single theory can explain the criminal law; more doubtful than ever that, even if a single theory is possible, retributive theory is the right tool for the job; and skeptical that a unified theory is even desirable. Doing justice to the authors' larger thesis would require a review as long as the book, so my goals here are modest. In the next few pages I will address the authors' critical corollary claim that negligence does not form an appropriate basis for criminal liability, and explain why I think it is wrong, at least as a matter of first principles. I then raise some questions about the proposed practical application of the theory to a revised

In a typical scene from the 1960s retro television series Mad Men, a mother watches her children putting plastic bags from the drycleaners over their heads, chastising them... for messing up the clothes inside. This, as one critic notes, is one of those 'retrospective winks at past ignorance' that make Mad Men 'so funny and, at times, so chilling'.1 The joke is premised on a measurable national shift in knowledge about the dangers of allowing children to play with dry cleaning bags. Perceptions of risk both shape and are shaped by the criminal law. Risks that were unknown or underestimated at one time (for example, certain vehicular risks) now give rise to criminal liability.2 The criminal law reflects knowledge of risk and assessments of what risks are reasonable. At the same time, criminal sanctions communicate norms and educate the public about blameworthy risk-taking.

Thus criminal justice tells us where the moral boundaries are, where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually through asserting and enforcing them. (There are lessons from non-enforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.) Lawrence M. Friedman, Crime and Punishment in American History White Collar Neglect American law provides federal and state prosecutors with powerful authority to charge individuals and corporations with crimes and to win, but they rarely pursue such cases. This paradox is especially poignant with respect to criminality that kills or injures workers or consumers, or that causes irretrievable damage to natural resources. Prosecutors have largely turned a blind eye to such violations, depending instead on a broken regulatory system to deter illegal behavior. To be sure, some of the criminal statutes that apply to health and safety offenses treat them lightly: purveyors of tainted food or grossly negligent employers face misdemeanor charges providing for prison terms of a year or less. Rather than working to develop cases that overcome these weaknesses by, for example, charging multiple violations that add up to significant jail time, prosecutors have largely abandoned those fields. One conundrum running throughout the field of neglected criminal enforcement is whether to charge corporations or their employees. The decision is admittedly complex, but forgoing enforcement altogether should not be a third and favored option. As a matter of principle, corporations should be subject to prosecution when the violations were endemic to the corporate structure, as opposed to the brainchild of isolated, rogue employees. Individuals can and should be charged alongside their corporate employers, providing a different kind of deterrent to future malfeasance.

This article addresses the contention of some prominent criminal law scholars – notably Jerome Hall and Glanville Williams – that negligence is an improper basis for the imposition of criminal punishment. An Aristotelian, virtue-ethics theory of punishment treats the inculcation of sound practical judgment as a function of punishment. The assessment of reasonable conduct implicit in negligence as a criterion of criminal fault fits comfortably within such a theory.

LEARNING OBJECTIVES In this chapter, you will: ➔ Distinguish between the two sources of law in Australia: statutory law and common law ➔ Gain an understanding of the hierarchy of the courts in Australia's legal system ➔ Gain an understanding of the difference between criminal and civil law and how each relates to nursing practice ➔ Gain an understanding of the importance for nurses of gaining knowledge of the law and the legal system The Australian legal system is complex. An illustration of its complexity can be seen in the protracted and controversial case of Dr Jayant Patel, a surgeon who had been working at the Bundaberg Base Hospital in Queensland. In 2010, following a commission of inquiry by the Queensland Government, and after being extradited from the United States, an action of criminal negligence was brought against Dr Patel under the Criminal Code 1899 (Qld). Although the legal action was initially successful, and Patel was found guilty on three counts of manslaughter and one count of grievous bodily harm, the case for the prosecution was not straightforward. Section 288 of the Criminal Code 1899 states that: ‘It is the duty of every person who … undertakes to administer surgical … treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act.’ Patel was found to have operated with appropriate skill and care. Jurors, therefore, were required to find that Patel's decision to operate showed ‘such a great falling short of the standard to have been expected of a surgeon, and showing such serious disregard for the patient's welfare … was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment’ (R v Patel [2010] QSC 233 [69]). Patel's convictions depended upon an interpretation of section 288 by Justice Byrne: Take a surgeon who performs a minor surgical procedure with consent. During the operation, in circumstances bespeaking criminal negligence, the surgeon lets the knife slip, wounding the patient. The surgeon will have breached the s 288 duty and be guilty of unlawful wounding.

Introduction The substantive definitions of crimes (on which, see Chapters 10–13) provide only a part of the picture of criminal liability. The general principles of liability apply across the various different offences and provide for the doctrines by which a person may commit, participate, or otherwise be found responsible for those crimes. They include forms of liability such as aiding and abetting, which are familiar to all domestic criminal lawyers, as well as principles like command responsibility, which are specific to international criminal law. It is important to note at the outset that the various forms of liability not only have different conduct elements, but also different mental elements, and the extent to which principles of accomplice liability have been used in some cases to avoid high mens rea requirements for primary commission of international crimes has been controversial. Unlike in domestic law, where the traditional image of a criminal is the primary perpetrator, such as the person who pulls the trigger, in international criminal law, the paradigmatic offender is the person who orders, masterminds, or takes part in a plan at a high level. As a result, principles of secondary liability play a comparatively large role in international criminal law. This chapter will discuss the principles of liability from two points of view, the ambit of liability recognized in customary and conventional international law, alongside the appropriateness of those principles from the point of view of foundational principles of criminal law, such as the requirements of personal responsibility and fair labelling.

The word “negligence” is always damaging to the reputation of doctors, related to some damage to the patient and a challenge before the judges. In recent years, sudden spurt in the cases of “Criminal negligence” and decision of the Supreme Court raises a fresh debate. This paper deals with current scenario of “Criminal Negligence”, applicability of Section 304 & 304-A IPC in cases of death of patient during treatment, remedial measures available to a doctor facing the charge of ‘Criminal Negligence’ and a brief discussion of important cases related to the issue, including recent case. Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in the law of master and servant. In criminal law, there are series of offences based on negligence in which loss or injury is not material; it is enough if the act is likely to cause injury or endanger life. Operation of patient without consent is an example of negligence (Statutory Damage) even without actual apparent damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”. Same definition is quoted in many decisions of the court. ‘Criminal Negligence’ is an offence against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of property (financial loss) due to some negligent act is always a civil negligence. The decision of the Supreme Court delivered on last years raises a fresh debate on the issue of ‘Criminal Negligence by the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords.

Excessive sleepiness is associated with motor vehicle accidents and is responsible for enormous social and financial loss. The specific legal obligations for an individual with a sleep disorder, their employer and those health care practitioners associated with that individual are reviewed. Although there are related implications within the criminal law and in particular criminal negligence, the arguments developed in this paper will be largely confined to the context of the civil liability. The legal concepts of foreseeability and proximity are discussed in the context of sleep-related accidents. The reasoning of a recent Australian High Court judgement is discussed in view of the differences in legal and medical opinion on the extent of foreseeability of accidents as a result of sleepiness. Many countries have legislation designed to protect employees from injury at work and to protect the general public from injury. What is not clear is the extent to which an employer will be required to accept liability for an employee's sleepiness and the duty to monitor the health of their employees. Factors which influence this liability include: the extent to which the implications of the condition is known and understood generally; the extent to which the condition is suspected or identified in an individual employee; the extent of a proper screening and treatment program and the way in which risk management programs have been implemented. Although the issue of sleepiness and civil liability is examined from an Australian legal context, the principles have direct relevance to other legal systems. The authors highlight the degree of uncertainty provided by the common law and statutory provisions, and that decisions rest on the balance of public interests, which mean that many of the current dilemmas facing practitioners may only be solved in the courts.

Merry states that ‘in practice the distinction between gross negligence and recklessness may be very subtle’.1 I wonder if his discussion of both the law and the relevant medical errors is outdated. Recklessness in English criminal law is advertent, and as Merry states, requires the conscious choice to take an unjustified risk. Criminal negligence is variously defined, but is usually regarded as not requiring advertence. One textbook definition is ‘… the inadvertent taking of an unjustifiable risk’.2 Historically, confusion has arisen from gross negligence manslaughter being sometimes known as reckless manslaughter. This should no longer be the case. The current leading cases, which Merry does not cite, are Adomako3 and Misra.4 Following these cases, a conviction for gross negligence manslaughter requires the existence of a duty of care, breach of that duty resulting in death and a risk of death which would be obvious to a reasonable prudent person. Additionally, the defendant's conduct must have fallen so far below the standard of a reasonable practitioner as to be grossly negligent in the view of the jury, and thereby warranting a criminal conviction for manslaughter. Although there is overlap, reckless manslaughter has a distinctly different meaning. Similarly, Merry's discussion of intrathecal vincristine administration would be enhanced by discussion of the incident at Nottingham in 2001. A junior doctor was prosecuted for gross negligence manslaughter, and pleaded guilty. However, an external inquiry identified over 50 other contributory factors to the fatal event.5 I hope this additional material may prove interesting and informative to JRSM readers.

James Child, in "Donald Davidson and Section 2.01 of the Model Penal Code,"(1) applied the Davidsonian analysis of action ("intentional under some description") to explain the requirement of a voluntary act in criminal law and to show how it is consistent with negligence and strict liability. Unfortunately, however, the Davidsonian analysis is either too strong or too weak for that purpose. On one possible interpretation, the Davidsonian analysis is too strong because it rules out liability in the negligence and strict liability, the very cases in which it is supposed to justify liability. On the other possible interpretation, the analysis is too weak because it fails to rule out liability in any cases. Consider one of Child's examples, taken from Davidson: If the officer presses a button thinking it will ring a bell that summons a steward to bring him a cup of tea, but in fact it fires a torpedo that sinks the Bismarck, then the officer sank the Bismarck; but if he fell against the button because a wave upset his balance, then, though the consequences are the same, we will not count him as the agent.(2) Child concludes that the officer might be held liable for criminal negligence in the first but not the second hypothetical. After all, in the first hypothetical he voluntarily acted, since his ringing the bell was intentional under some description (for example, "ringing the bell" or "summoning a steward"). In the second hypothetical, the officer did not act at all. But things aren't so simple. Suppose the officer in the second hypothetical knew the button would fire the torpedo, and he wanted to sink the Bismarck. Suppose that sinking the Bismarck is prohibited. Finally, suppose that to minimize the chances that he will be charged, the officer plots to sink the Bismarck in the following way: he will drink beer until he is wobbly; then he will position himself near the button. Inevitably the waves hitting his ship will cause him to lose his balance and strike the button. Now if his plan succeeds, he is surely guilty of intentionally sinking the Bismarck. Yet his "act" of hitting the button is no different from what it was in Child's/ Davidson's second hypothetical. There are three routes to take here, but none will help Child. First, one could bite the bullet and deny liability in the case of my plotting officer. That would be absurd. Second, one could quite reasonably point to the officer's many voluntary acts that led up to being thrown against the button. …

The purpose of this paper is to discuss and to relate to each other two topics: (a) the admissibility of ignorance and mistake of fact as defences against negligence in crime; and (b) the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in (a) not concerned at all with torts negligence, only with criminal offences (whether common law or statutory) which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy classification of elements, one or other of which is needed to provide the required mens rea (the exception of strict liability offences is here ignored): intention ( = purpose or aim), knowledge (or belief), recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called (partly) a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind (in the positive sense). His not attending, noticing, etc., is equally compatible with his daydreaming (not attending to or noticing anything) and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. (In the present state of English law most offences of criminal negligence do require inadvertence, the notable exceptions being traffic offences such as careless driving. On the other hand, the proposal in the Law Commission Working Paper, No. 31 (1970) would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are (1) whether his performance fell below scratch, (2) what are to be the excusing conditions for such a performance, and (3) if the answer to (1) is yes, whether his performance was covered by the excusing conditions.