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This article explores a high-profile review of cases of alleged historical investigatory police bias in New South Wales (NSW), Australia, referred to in The New York Times article, “When Gangs Killed Men for Sport: Australia Reviews 88 Deaths.” The title of the article contains the terms of a well-known feature of moral panic—a discovered crime fact and demand for an enforcement response disproportionate to the fact. Our analysis explores the response to the review of the list of cases, Strike Force Parrabell, as an illustration of runaway constructionism. Demand group-interest in the positive designation of the cases (as bias crime) was a means of acknowledging the prejudicial conduct of police during a time of wider attitudinal change. In spearheading the verification of this list of cases, demand groups and crusaders placed a high semiotic burden beyond its capacity as a comparable objective measure. The fitness of the list of 88 cases as a totem for police and societal wrongdoing requires evidence regarding disproportionality based on valid and reliable measures. Despite worldwide interest in NSW for its comparative high ranking in gay bias homicides, however, such ranking does not exist. Nonetheless, despite the impossibility that it stands in as proof of decades long prejudice, corruption or criminal negligence, the list of cases appears to do so anyway. As such, it is illustrative of the occupation of media frames and formats by weak data or of the runaway character of crime stories in an era of “fake news.”

RESUMEN: El estudio aborda la relevancia de los cursos causales hipotéticos para la imputación normativa del resultado a la conducta imprudente. Se exponen argumentos centrados en el perfil teleológico de las reglas de diligencia que concretan el deber de cuidado, defendiendo la adopción de los criterios del “aumento del riesgo” o bien, tratándose de supuestos de comisión por omisión, de la “disminución de oportunidades”. Se aclara la relación dogmática entre dicha valoración y el criterio de la “realización del riesgo” (o “fin de protección de la norma”), reafirmando la correspondencia estructural entre los delitos comisivos y los “omisivos impropios”. Finalmente, se pone especial énfasis en el significado práctico y político-criminal de la estructura dogmática defendida en materia de responsabilidad penal médica por error de diagnóstico.

The aim of this article is to show difficulties arising when courts judge the negligence of dog owners in absence of precise legislation and typical precedents. We analyze the elements of a crime in two cases where children were objects of canine aggression, and show how the courts constructed the issue of dog owners’ negligence. In Case 1 the Court of Appeal found that a foster parent was not negligent when leaving a boy with specific needs alone with a heavily built dog that then repeatedly bit the boy to death despite the owners attempt to pull away the dog. The court also ignored the signs of substandard animal husbandry including previous severe incidents where the dog owner also was injured. In Case 2, the Court of Appeal instead found that the breed of the dog also matter, and that not even adult presence is enough to protect a child from dog attack. Because both the child and the dog could behave unpredictably, continuous observation and supervision was required. In both cases, measures to prevent the incident were available and would have been easy to carry out.

We seem to be responsible for our beliefs in a distinctively epistemic way. We often hold each other to account for the beliefs that we hold. We do this by criticising other believers as ‘gullible’ or ‘biased’, and by trying to persuade others to revise their beliefs. But responsibility for belief looks hard to understand because we seem to lack control over our beliefs. In this paper, I argue that we can make progress in our understanding of responsibility for belief by thinking about it in parallel with another kind of responsibility: legal responsibility for criminal negligence. Specifically, I argue that that a popular account of responsibility for belief, which grounds it in belief’s reasons-responsiveness, faces a problem analogous to one faced by H.L.A. Hart’s influential capacity-based account of culpability. This points towards a more promising account of responsibility of belief, though, if we draw on accounts of negligence that improve on Hart’s. Broadly speaking, the account of negligence that improves on Hart’s account grounds culpability in a (lack of) concern for others’ interests, whereas my account of epistemic responsibility grounds responsibility for belief in a (lack of) concern for the truth.

Engineering codes are a key method to guide designs to safe and reliable outcomes. Many such codes have prescribed calculations where the user provides specific inputs in a series of calculations, often using charts or tables, to get specific outputs. The design margins, units, and underlying theory are not always apparent. Engineering codes may not be suitable for reverse engineering an incident or providing a failure prediction. This article examines a criminal negligence case in which an initial forensic analysis incorrectly applied the ASME Pressure Vessel Code to use Finite Element Analysis (FEA) of a failed pressure vessel section. The flaws in the original analysis were revealed by applying reverse engineering using conventional stress calculations and understanding basic material science. This emphasizes the need to understand the underlying theories with both engineering codes and numerical modeling. Subsequent FEA provided an accurate analysis report that was successfully used in court. These same methods can be applied to many other engineering codes and standards.

In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

This chapter presents one of the most closely watched battles of a single citizen to save his coastal homeland. It is an investigative effort of an ordinary person to interrogate the state government’s usage of the morally outrageous ‘Act of God’ argument as a cause of floods. This chapter is a first-hand account of investigations made by the author before filing the first PIL (Public Interest Litigation) against the Government of Kerala calling it criminal negligence on their part rather than an ‘Act of God’. The author has also unraveled the concealment of facts in the Counter Affidavits filed by the Government to confuse the court with jargon, data, graphs and government memos.

The post-World War II Australian military war crimes trials of Japanese from 1945–51 have been criticised for using a rule of evidence considerably relaxed from the ordinary requirements of a criminal trial, one that did not require witnesses to give evidence in person. Circumstantial evidence suggests that, in relation to a trial held in Darwin in March 1946 for war crimes committed in Timor, the secretive Special Operations Australia, otherwise known as the Services Reconnaissance Department (SRD), took advantage of the rule. This article argues that the SRD did not allow their members to give evidence in person in an attempt to control and limit the dissemination of information about their operational and security failures in Timor from 1943–45. The SRD operation was adjudged by its own official historian as displaying ‘gross inefficiency and criminal negligence’. While the SRD’s failures were known to select personnel at the time, access restrictions to archival records in the post-war period,...

In spite of following one of the best management strategies, by the competent doctors with best available infrastructures in patient care, undesired results harming the patient cannot be avoided. Does it mean all these undesired results causing damage to the patient are as a result of medical negligence? Nowadays, patients are more aware of their rights on account of increased literacy level, role of print, electronic and social media and above all enactment of new law i.e. Consumer Protection Act 1986.Though the question of medical negligence is decided by Courts, but Courts on their own are not trained in medical science. Their decision is based on expert’s opinion. Judges apply the basic principle of law in conjunction with the law of land to make a decision. Reasonableness and prudence are the guiding factors. This paper deals with the legal aspects of medical negligence i.e. what is negligence and its type and various judgements especially the Jacob Mathew vs. State of Punjab 2005 and Anr, Martin F.D’Souza vs. Mohd. Ishfaq 2009, V. Kishan Rao vs. Nikhil Super Specialty Hospital 2010 delivered by the Apex Court to make the law of negligence more rational and directions given to subordinate Courts, various Consumer Fora, State and investigating agencies regarding procedures to be followed before filing a complaint or registering a case of criminal negligence against the doctor.

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.

Lawyers’ knowledge of technology — how to provide counsel with sufficient knowledge to be able to effectively challenge the reliability of those technologies (electronic systems and devices) that produce the most frequently used kinds of evidence, e.g.: electronically produced records; mobile phone tracking evidence; breathalyzer/intoxilyzer devices; and, software programs for discovery’s “technology assisted review” stage. More specifically the problem is collectively made up of these individual problems: (1) lawyers don’t know such evidence-producing technology sufficiently well so as to be able to challenge its performance by effective cross-examination and with their own expert witnesses (if Legal Aid will pay for them). (2) law schools don’t teach courses on the necessary interaction between different kinds of technology and the necessary flexibility of rules of procedure as they should be applied in regard to, electronic discovery, disclosure, preliminary inquiries, and admissibility voir dires. See e.g., R. v. Oland 2015 NBQB 245, and, R. v. Oland 2015 NBQB 244, being two pre-trial voir dires on the admissibility of mobile phone tracking evidence for a 2nd degree murder trial. (3) continuing professional development seminars, conference, (CLE) etc., don’t provide such information about technology; (4) the problem is a moving target, i.e., technology is constantly changing and therefore so will the types of technology that produce the most frequently used kinds of evidence; (5) the huge access to justice (A2J) — unaffordable legal services problem means an ever-increasing number of persons appearing in courts, particularly criminal courts, without lawyers, thus greatly increasing the probability of wrongful convictions and wrongful guilty pleas — such unrepresented persons can’t challenge the complex sources of the evidence used against them; (6) Prosecutors don’t know such technology either, and therefore can’t inform investigating officers what to watch out for and obtain; (7) the police aren’t trained about such technical sources, such that the prosecutor’s duty to disclose, “the fruits of the investigation” that R. v. Stinchcomb 1991 CanLII 45 (SCC, Nov. 7, 1991), requires be disclosed to defence counsel, may be very inadequate, but defence and prosecuting counsel, and their law school professors don’t know what they don't know as to technology; (8) because most of the evidence used in both criminal and civil proceedings now comes from the same sources, most of the great complexity of rules that now burden electronic discovery in civil proceedings, should apply to disclosure in criminal proceedings, but so far, they don’t; (9) lawyers and police officers don’t know about the National Standards of Canada (or the comparable, U.S., DoD’s 5015.2 standard for records management) that establish the required practices and procedures for the proper operation of such technology, such as electronic records managements systems' technology; (10) at a preliminary inquiry, counsel cannot specify whether “committal for trial is in issue,” if the quality of the, manufacturing, use, and maintenance of the technology that produces the prosecution’s evidence is not known; (11) defense counsel needs a constitutional right to a traditional full preliminary inquiry so as to be able to cross-examine witnesses (or demand that witnesses be made available for cross-examination) to learn enough about the technology that produced the evidence to be used by the prosecution at trial; But instead, Bill C-75, Second Reading, June 11, 2018 (in the Canadian Parliament), proposes to restrict the availability of a preliminary inquiry to offences punishable by life imprisonment, and to strengthen the judge’s ability to limit the issues to be explored and the witnesses to be heard, i.e., the proposed amendments would abolish the preliminary inquiry for all but those offences involving a maximum punishment of life imprisonment, which offences range from murder to criminal negligence causing death. Law societies have to formally recognize a “legal research lawyer specialist” for each major area of law, part of whose stock-in-trade would be knowledge of such frequently used, evidence-producing technologies. Such innovation is now necessary so as to make available to all lawyers such knowledge in aid of preparing competent cross-examinations and arguments with which to challenge the reliability of such frequently used sources of evidence, and to argue how the rules of procedure that control proceedings concerning, discovery, disclosure, and admissibility, must be applied flexibly so as to be compatible with constitutional requirements as to "fair trial," and, "an opportunity to make full answer and defense. But, because few law firms would have sufficient volume of production to be able to employ such highly specialized lawyers, they would have to be made available to other lawyers in support services operating at cost. However, law societies have no history of doing either creating specialist legal research lawyers, or support services.

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.

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy Arpaly to criminal negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of...

Several human sciences for special qualities like as human's recognition, heredity or human factors have been wining development in recent years. According to those sciences, today, the one of the science knowledge which nobody as individual could do everything without any errors, attains academic common one. There are two standards for criminal negligence. The negligence is decided based on actual offender's conditions in accordance with standard of an act by an ordinary person when he would have been at the same position of offender. The said science knowledge might have an influence on offender's conditions and the standard as an ordinary person for that decision. Especially, it will become doubtful whether the concept of an ordinary person would keep the position as the above standard in the future. On this papers, the author would like to look for the problem on criminal negligence focusing on an ordinary person who shall be effected by science knowledge. And finally, the author may offer the repeal of slight and usual criminal negligence at least.

Industrial robots have been increasingly used for decades and the International Federation of Robotics predicts that 1.3 million more of such humanoids will be installed in factories across the globe between 2015 and 2018. While robots are deemed beneficial for industrial production, they pose a serious threat to our health and safety. Meanwhile, robots have killed many people and gravely injured numerous others in different countries. Policymakers around the world remain largely unmoved about resolving the uncertainty over the specificity of which persons should go on trial for such killings. This article examines the principles of common law governing manslaughter by criminal negligence with particular reference to Australia; however, it will generally apply to other common law countries as well. It finds that while it would be theoretically possible to identify the potential accused of workplace deaths caused by robots, we consider that the common law identification doctrine in practice will be a bar to successful prosecutions against corporate employers given the specific complexities associated with the usage of industrial robots. This article therefore submits a recommendation with justifications for dealing with this serious offence by enacting appropriate manslaughter law for the effective regulation of robots provoked fatalities.

Medical profession differentiates itself from other professions, where apart from the knowledge and skill, touch of humanity is also required. Since the inclusion of medical profession under the ambit of Consumer Protection Act there has been a spurt in the number of cases against the doctors. Bolam's test is applied to assess medical negligence of doctor. Cases against the doctors can be brought in a civil or criminal court, and accordingly the negligence may be civil or criminal negligence. In deciding criminal negligence against doctors criminal intent need to be proved. The Medical Law and Ethical Code for medical professional in India are prescribed by Indian Medical Council, under the section 20-A of Indian Medical Council Act of 1956 and Amendment Act No. 24 of 1964.

Agnotology is the study of ignorance —how it is culturally created or condoned, and the purposes it serves in a society. Stanford University professor Robert N. Proctor, a historian of science and technology, coined the word from the Greek agnosis, “not knowing,” and -ology, a subject of study or a branch of knowledge. The term first appeared in popular usage in 2003 in an article in the New York Times. “[A] great deal of attention has been given to epistemology (the study of how we know) when ‘how or why we don’t know’ is often just as important,” say Proctor and Londa Schiebinger in their seminal book Agnotology: The Making and Unmaking of Ignorance. These authors have entered a target-rich territory, because the ways in which ignorance is created (agnogenesis) in our society are infinite—through media neglect and obfuscation, corporate or governmental secrecy and suppression, document destruction, myriad forms of cultural and political selectivity, inattention and forgetfulness, outright attempts to deceive and mislead (aka lying), and more. Proctor believes the study of ignorance has life-or-death consequences. This conviction stems from his role in the tobacco controversies in the waning years of the 20th century, in which he was a stern critic of the industry. “The tobacco industry is famous for having seen itself as a manufacturer of two different products, tobacco and doubt,” he asserts. The doubt refers to the tobacco companies' insistence that the science impugning tobacco was pie

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.

The issue of medical negligence has been catching attention of many people nowadays. With advancement of technology in medical field, many incurable diseases of past time can now be managed well at the cost of burdening expenditure. This has resulted in obvious expectations to the patient and their families that any ailment can be cured from the medical procedures and therapies. When these expectations are not met in terms of complications or death of the near ones, people get frustrated and tend to allege health care providers against medically negligent.Negligence are of two types; civil negligence where the doctors are alleged to have lost simple degree of care and attention to the patients thereby causing damage whereas in criminal negligence, the doctors grossly deviate from the standard of care and competence or perform activities which are understood prima facie as a crime, for eg: performing criminal abortion, organ transplantation against the law etc.Whatever the type of negligence, there are legal measures to file complaint against the doctors who are alleged to have caused negligence. Gone are the days when people regarded doctors near to gods. Medical service also falls under the consumer protection act where the patients are the consumers and medical personnel, the service providers. The patients have rights to get quality medical service under this act. If the patients or their relatives are dissatisfied with the medical service rendered to them by the health care providers, they have the right to lodge complaint to the compensation committee of the district in which chief district officer (CDO) is the chairman in each district. If there is an issue of criminal negligence, the complaint can also be filed in the concerned court.In some circumstances, when the patient develops complications or dies, the attendants accuse the doctors for the failure in treatment and protest in the hospital premises rather than opting the legal way of charging them against negligence. The health professionals are at times threatened and forced to apologize in public. Most of the times, they demand for compensation and many direct benefits to the relatives of the deceased. The hospitals and the health professionals feel insecure and often they have agreed to the demands put forth to peacefully settle the issue and to get prevented from defamation. The government is also unable to provide security. Similar cases have been reported time and again in Nepal, creating a sense of lawlessness in the country.When deciding whether a doctor is held liable for negligence, the “standard of care” should be analysed. It means the practice should be an accepted one and standard, such that doctor of the similar filed and competence would have also opted the same procedure in given circumstances. Even when a doctor has duly acted opting standard procedure, still there can be chances that a patient can develop complications. Every human body cannot react exactly same to a medical intervention though that may be a scientifically proven one as there can be chances of medical misadventure. The doctors should have possessed reasonable degree of care and skill when he is attending the patient. According to Bolam’s test, a person is said to have inappropriate standard, and becomes negligent, if it is proven that he had failed to do what a reasonable person would do in the circumstances.1 The degree of care and skill should be comparable to an average doctor in similar settings. In order to analyse these issues, expert opinion from reputable and unbiased experts of the similar field of medicine should be taken. In case of death due to alleged medical negligence, the dead body should be autopsied by qualified experts in Forensic Medicine. This can explain so many facts about the deceased which can be helpful to decide whether negligence has factually taken. It highlights the need of taking opinion from the experts of the concerned field by the councils framed to settle the cases of medical negligence, especially the consumer protection council, Nepal Medical Council, etc.It is a high time for the government to play role to address to this sensitive and quai-legal issue. If this trend is not ended, the trust of patients towards the doctors may nullify. The doctors also cannot work effectively when there is no safe working environment and may begin to have tendency to abandon handling critical cases with a fear of vulnerability to defamation if not physical assault in worst case. The situation is ultimately disastrous to the entire health care system. The very sensitive issue of health care delivery cannot be compared to any other commercial issues. The proper mechanism of addressing the issue of medical negligence should be practiced alongside encouragement from governmental urge to come up with better medicolegal systems in this regard. This is highly essential for balancing expectations of the patients and performance of medical professionals.

논문투고일：2011년 05월 21일 논문수정완료일：2011년 08월 21일 논문게재확정일：2011년 09월 06일* 연세대학교 정보대학원 교수The recently revised “Telecommunications Business Promotion and Personal Data Protection Act” is an important legal milestone in promoting the Korean telecommunications infrastructure and industry as well as protecting individuals’ personal data and individuals’ rights to privacy. Special characteristics of information security and privacy protection services including public goods’ feature, adaptivene ss, relativity, multi-dimensionality, and incompleteness, are reviewed. The responsibility of chief security/privacy offi cers in the IT industry, and the fairness and effectiveness of the criminal negligence in the Telecommunications Act are an alyzed. An assessment of the rationale behind the act as well as a survey of related laws and cases in different countries, offers the following recommendations：i) revise the act and develop new systems for data protection, ii) grant a stay of execution or reduce the sentence given extenuating circumstances, or iii) use technical and mana gerial measures in data protection for exemption from criminal negligence.

The Department of Health estimates that 10% of hospital inpatient admissions result in an adverse event, but ,2% of claims for medical negligence handled by the NHS Litigation Authority result in court action. However, both the number of claims for negligence and the sums involved in settlement are increasing and so it is important that anaesthetists understand the factors leading to a possible civil claim for negligence and the potentially considerably more serious charge of criminal negligence, both of which can arise from failures to uphold a suitable standard of care. This article does not consider claims of negligence in relation to consent which has been considered in a separate article in the journal. The principle of ‘duty of care’ was established by Donoghue v Stevenson in 1932 wherein Lord Atkin identified that there was a general duty to take reasonable care to avoid forseeable injury to a ‘neighbour’. In this case, a woman in Paisley drank ginger beer from a bottle until she found a decomposing snail at the bottom. As a result the woman became ill and a case was brought against the ginger beer manufacturers for compensation. Lord Atkin determined that the company producing the ginger beer had been negligent in failing to ensure the woman’s safety during the production process, even though the ginger beer was not bought by the woman but by her friend. It was established that a general duty of care was owed to a neighbour; a neighbour was defined as ‘someone who may be reasonably contemplated as closely and directly affected by an act’. In this case, it did not matter who had bought the ginger beer, since it was reasonable to consider that anyone who drank the beer would have suffered the same consequences and could therefore be considered under the ‘neighbour’ principle.

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.

In October 2003, US citizen Christina Thomas died while scuba diving on Queensland’s Great Barrier Reef. Following over five years of delays, her husband David Watson accepted a plea bargain to which he pleaded guilty to manslaughter on the basis of criminal negligence. Watson was initially sentenced to four and a half years imprisonment, suspended after 12 months, however this was later increased on appeal to suspension after 18 months. Using Watson as a framework for analysis, this article examines some of the limitations of an inefficient justice system, with a particular focus on the private nature of the plea bargaining process, and the potentially favourable representations and sentencing of men who kill a female intimate partner. The authors argue that the need to respond to court inefficiency and under-resourcing in the criminal courts creates pressures that can result in a desire for increased efficiency being prioritised above other justice concerns, and this allows for existing flaws within the operation of the criminal justice system to be exacerbated, and excused.

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.

Health-care professionals who make serious errors may be subject to criminal prosecution for criminal negligence. In recent years, many states have expanded the concept of criminal negligence to the extent that health-care providers may have difficulty fully understanding what conduct could subject them to criminal prosecution.This article presents two cases in which nurses were prosecuted for criminal negligence related to medication errors. It explores the evolving concept of criminal negligence, discusses the role of systemic and interdisciplinary factors in medical errors, and explores the collateral consequences of criminal prosecution.

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.

In June of 2009, Michael Jackson died following a cardiac arrest. Jackson suffered from severe insomnia and anxiety, and Dr. Conrad Murray, a physician hired to look after Jackson’s medical needs during preparations for a major world tour, had apparently undertaken to treat Jackson’s insomnia in his home using a drug with known deadly potential: propofol. This is not a pediatric case, nor is it even typical in cases of medical negligence. But the Michael Jackson case illustrates many issues concerning legal standards with regard to negligence when it results in a patient death and practice standards with regard to sedation, professionalism, and the ethical obligations of physicians. In this chapter, we will undertake to discuss the Jackson case from both legal and professional perspectives, and then to compare elements of the Jackson case with that of another case of sedation that also ended in patient death, but not in criminal charges of homicide.

Criminal enforcement of environmental laws has evolved rapidly in the past few years. Recent environmental prosecutions have targeted subtle conduct in innovative and aggressive ways by using expansive theories of liability beyond those contained in environmental statutes. Prosecutions for criminal negligence also are becoming more common. Because of aggressive federal and state efforts targeting environmental crimes, it is time for companies to take a hard look at their corporate policies and environmental compliance records to help ensure that they do not become a target of a criminal prosecution. This paper will review recent criminal environmental cases and discuss ways in which companies can best protect themselves and prepare for an environmental criminal investigation of their companies, officers, and employees.

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.

The purpose of this paper is to examine issues of regulation of the market for, and use of, blood and blood products. The situation has changed since the discovery of the Human Immune Deficiency Virus (HIV), the presumed cause of AIDS, because it was recognized that some haemophiliacs were infected with HIV from transfused blood and blood products before 1985. When the danger was realized in that year, regulations were introduced internationally to prevent this, but meanwhile some haemophiliacs developed AIDS. In several countries, governments have accepted responsibility, without liability, for possible transmission of infection, and paid compensation to victims. In Prance three health service officials have been convicted of fraud and criminal negligence. In March 1997 a trial began in Japan of three drugs company executives accused of promoting the sale of HIV-contaminated blood products. Since then there has been a class action in the USA resulting in awards. Further issues have arisen with regard to the outcome and treatment of asymptomatic infection with HIV. The implications for public safety, and for medical and legal practice, are far reaching and reveal a need for more effective monitoring of the existing procedures for supply and clinical use of blood and blood products.

Regulatory offences enacted in provincial statutes represent a large part of the law that is confronted by citizens, and a significant proportion of the cases prosecuted in court. There is a tendency to view them as being distinctly different and less serious than criminal offences that are embodied in the Criminal Code. This paper argues that it is preferable to view them as running along a continuum. The same actus reus can represent a minor infraction that is properly prosecuted as a strict liability offence with a modest fine, while in other instances it rises to the level of an act that causes serious harm and is morally culpable. The statutory regime should be designed to provide the proper guidance so that, where appropriate, prosecutors look for mens rea and seek larger penalties with an aim of deterrence similar to that of criminal offences. A number of examples suggest that the failure of legislation to clearly address these issues has undermined enforcement efforts and obscured the seriousness of some of these offences.

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.