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I accept Concentrate Criminal Law (2020 7 edn) p. 31

So, it is generally thought that intention is the most serious kind of mens rea, recklessness the next most serious, and negligence the least serious.

Simester and Sullivan's Criminal Law (2019 7 edn). p 166.

(i) The test for negligence

Even though negligence permits the finding of fault for inadvertent wrongdoing, it does not actually matter whether the defendant attends to or contemplates the risks. As Glanville Williams asserts, “the essential question, at any rate for legal purposes, is whether it was reasonable for you to go ahead with your conduct in the circumstances”.188 Of course, normally one who foresees and runs an unreasonable risk will be reckless as well as negligent. Negligence does not, however, require inadvertence. This is for two reasons. [Quote 1] The first is that in the criminal law, the lesser fault standard incorporates the greater. A defendant should not be able to exculpate herself by pleading that her actions were reckless or intentional rather than negligent. (Similarly, she should be unable to escape an allegation of recklessness by pleading that her actions were intended.) [Quote 2] It follows that where negligence is enough for criminal liability, then, a fortiori, there is liability for intention or recklessness.

p 167.

&nsbp; &nsbp; &nsbp; The second reason is that, as we mentioned earlier, a defendant can foresee the actus reus without being reckless, yet may still be negligent. For example, an anaesthetist who recognises there is a slight risk of killing his patient is not normally reckless. But if he has unknowingly miscalculated the dose, then he is negligent even though not reckless. Recklessness involves an objective assessment of running the subjectively perceived risk. Negligence involves an objective assessment of running an objectively recognisable risk.189

Criminal Law Directions (2020 6 edn). p 76.

Negligence is a much wider fault element than intention or recklessness.

Down the same page.

At common law, negligence is rarely sufficient for criminal liability.

How are the two embolded quotes above true?

  1. How does "the lesser fault standard" incorporate the greater?

  2. How can "where negligence is enough for criminal liability, then, a fortiori, there is liability for intention or recklessness"? You can be negligent without being reckless or intent.

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    The bold passage agrees exactly with the concept that intention is the most serious and negligence the least serious. You seem to be reading it backwards somehow. – Nate Eldredge Aug 6 at 2:30
  • @NateEldredge Yes, I am "reading it backwards somehow." Which "bold passage" do you mean"? "lesser fault standard incorporates the greater" - how does this agree exactly that intention is most serious and negligence is least serious? – Plnt Plug Prpl Pton Aug 6 at 20:14
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    Every reckless act is negligent, although not every negligent act is reckless. Therefore, the set of acts that meet the lesser standard of negligence, contains, or "incorporates", the set of acts that meet the greater standard of recklessness. That's what the first bold passage means. The second passage merely restates this in different words. – Nate Eldredge Aug 6 at 21:03
  • @NateEldredge thanks! you are mathematician? that's why you smart people can interpret this! – Plnt Plug Prpl Pton Aug 7 at 18:29
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How does "the lesser fault standard" incorporate the greater?

If a little bit of fault makes you guilty, then surely a lot of fault does.

How can "where negligence is enough for criminal liability, then, a fortiori, there is liability for intention or recklessness"? You can be negligent without being reckless or intent.

Exactly. So if mere negligence is enough, certainly the worse cases of being reckless or intentional are clearly enough.

At common law, negligence is rarely sufficient for criminal liability.

Negligence being a very small fault is usually not enough to trigger criminal liability which is generally more serious than civil liability.

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  • @NateEldredge thanks! you are computer scientist? that's why you smart people can interpret this! – Plnt Plug Prpl Pton Aug 7 at 18:30
  • @B.MusM.Mus. Yeah. This kind of thing is the bread and butter of software design. – David Schwartz Aug 8 at 19:40
  • "This kind of thing"? really? criminal law comes up in software design? – Plnt Plug Prpl Pton Aug 8 at 21:58
  • @B.MusM.Mus. I mean this kind of reasoning. ;) – David Schwartz Aug 8 at 23:49
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If the law says that a negligent person is guilty, then one who is negligent or reckless or intentional is guilty.

The fault standard for guilt can be negligence, recklessness or intentionality. Recklessness includes intentional acts. Negligence includes reckless and intentional acts. That's how "the lesser fault standard incorporates the greater."

"Where negligence is enough for criminal liability, then, a fortiori, there is liability for intention or recklessness." This means you are guilty if you are negligent or reckless or act intentionally. Yes intentional harm is the most serious - that's why it's captured by the lesser standard.

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    Generally, this is true in criminal law. But, there are circumstances in which there is liability for negligence, but not for reckless or intentional conduct. While the sovereign is immune from civil liability as a general rule, this is waived in certain circumstances (e.g. ordinary car accidents by cars that happen to be driven by government officials rather than private company employees). But, when there is a waiver, it is generally limited to claims of negligence and not for intentional or reckless conduct (e.g. a cop intentionally drives into a suspect in the course of duty). – ohwilleke Aug 6 at 6:41
  • thanks, but i'm just so confused. "Recklessness includes intentional acts. Negligence includes reckless and intentional acts." why? recklessness is less serious, so mustn't include intentional acts! equally, negligence is least serious, so mustn't include "reckless and intentional acts" . – Plnt Plug Prpl Pton Aug 6 at 20:16
  • "Yes intentional harm is the most serious - that's why it's captured by the lesser standard." If intention is most serious, why does lesser standard capture it? how can LESSER standard capture MORE SERIOUS mens rea? – Plnt Plug Prpl Pton Aug 6 at 20:17

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