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Reckless or Negligence in Law
What does reckless or negligence in law actually state? The law we refer to here is UK law. This is not meant as qualified legal advice, if you need legal advice you should seek an appropriate legally qualified attorney/lawyer.
Mens Rea
| Intent, recklessness or negligence are all elements of ‘mens rea’ – the mental state of mind of the suspect at the time of the offence. Criminal negligence is already recognised in UK law, most notably in Manslaughter but also as the sole basis of liability in driving offences. For a murder, the mens rea is that of malice aforethought, a deliberate and sometimes premeditated killing. But the larger percentage of deaths result from situations where there is either no intention to injure another, or only an intention to inflict less serious injury. The leading statement to describe ‘criminal negligence’ in English law, may be found in the statement by Lord Hewart CJ in the case of R v Bateman: “In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” There is a need to be able to distinguish between those who happened to be present when another died accidentally or through misadventure, and those who have contributed to the death in a way that makes them criminally rather than merely morally responsible. |
An Example
An example would be a guide taking children out on a lake and during the trip a storm
overturns some of the boats and children die. If the storm was foresaw or the
equipment was identifiably deficient the guide could be culpable for Gross Negligence
Manslaughter.
The current test for establishing liability for negligence (as applied to manslaughter)
was set out in: R v Adomako [1994] 3 WLR 288. The ‘Adomako test’ is;
“whether the conduct of the defendant was so bad in all the circumstances as to
amount in their judgment to a criminal act or omission.”
Under English law, negligence amounts to a “breach of the duty of care”.
Criminal negligence is a complex issue as it exists in a variety of forms. As an example
of this, criminal negligence can be established by constructive knowledge. This is
where the suspect ought to have known his actions/inactions would lead to an offence.
This is mostly prevalent in stalking offences.
The UK law already caters for negligence and recklessness in serious, less serious and
strict liability offences.
Meaning
What we can understand from this short introduction is this;
- Precedent and definitions of negligence and recklessness are already prevalent in UK law.
- It is a skip and a hop to transpose them into AML legislation/regulations
- Actions or inactions that can be negligent/reckless
- Customer due diligence and enhanced due diligence take on more responsibility due to this.
Actions
What do businesses need to do?
- Train employees in what is reckless/negligent in law
- Review policies/procedures
- Review adverse media processes
- Review AML strategy
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