Criminal Negligence and Recklessness: A Legal Analysis

Posted on Dec 3, 2024 in Law & Jurisprudence

Unit 25: Fault or Negligence

We often use the terms “guilt” and “recklessness” interchangeably. The Criminal Code (CP) primarily employs the concept of recklessness, while legal doctrine uses the concept of guilt.

Recklessness

Recklessness is performing an act without malice, justified by typical or predictable circumstances, but with an avoidable cause for the breach of the duty of care required of the subject personally. The foundation of recklessness is reproach: the subject’s ability to have knowledge of the consequences of their actions and yet not avoid them. This reproach constitutes a distinct crime.

Structure of Recklessness

Recklessness consists of two elements:

  1. Policy Element: This is a breach of due diligence. It involves the subject’s failure to perform or avoid dangerous actions required by law. This element must be understood from two perspectives:
    1. Objective Duty of Care: This sets the way in which actions must be performed to avoid injury to legally protected interests.
    2. Subjective Duty of Care: This considers the subject’s possible actions based on their characteristics and establishes the extent to which the subject is personally required to observe the duty of care.
  2. Psychological Element: This examines the subject’s predictability of the result and its degree of preventability.
    1. Predictability: This requires mere potential knowledge. The purpose of forecasting the outcome embodies the kind of wrongfulness and the causal course. It also includes the predictability of knowledge regarding its unlawful status. If the author was able to recognize the wrongfulness of the act and could or should have foreseen the consequences, the requirements of recklessness are met.
    2. Avoidance: Negligence is excluded in cases where, although the author foresaw the situation, they could not avoid it. Negligence may also be excluded when the subject could anticipate and avoid the outcome, but ethically, they cannot be blamed (e.g., due to insurmountable fear or necessity).

Kinds of Recklessness

Considering the degree of predictability, there are two types of recklessness:

  1. Conscious Recklessness: The subject recognizes the possibility of harm but acts without certainty that it will occur.
  2. Unconscious Recklessness: There is no representation of the element of damage, even though the subject could have predicted the outcome.

Regarding gravity:

  1. Gross Negligence: This occurs when recklessness is more intense due to a lack of basic diligence in the typical action.
  2. Slight Negligence: This is less intense due to the lack of reasonable diligence in performing the typical action.

Two factors determine whether recklessness is gross or slight:

  1. Breach of Duty of Care: The greater the breach, the more severe the recklessness. This assessment considers the action’s danger, the importance of the legal right protected, and the subject’s characteristics.
  2. Degree of Predictability and Preventability: The greater the predictability, the higher the severity of recklessness.

Incompetence and Neglect

Incompetence is the lack of technical capacity in exercising a profession or art. Neglect is the lack of diligence, forgetting the prudential rules imposed on the industry due to their special enforcement in performing specific duties of care.

Regulation in the Criminal Code

The CP maintains a “numerus clausus” system, a limited number of crimes punishable by negligence, each with a determined sentence. The CP selects crimes to be punished for negligence based on the principle of minimum intervention, punishing crimes against important legal rights. Examples include homicide, injury, damage, money laundering, abortion, and crimes against public health. More crimes committed by negligence are being progressively introduced, such as traffic offenses.

Recklessness can be punished more severely if committed by a professional during their duties or through motor vehicles or firearms. In these cases, the CP establishes a penalty associated with the professional context or the use of weapons or motor vehicles.

  • Professional Duty: The crime must be a byproduct of their professional duty. Only then can the disqualification penalty be applied. This can be more burdensome than the basic penalty as it is cumulative.
  • Motor Vehicle: The penalty is cumulative and includes license deprivation.
  • Firearms: The penalty includes denial of permission to possess, carry, and use weapons, similar to the driving license deprivation.

Contributory Fault

Contributory fault occurs when the victim’s actions contribute to the result. Two rules apply:

  1. If the victim’s reckless conduct contributes similarly to the author’s, the author’s recklessness is reduced.
  2. If the victim’s intervention is the decisive cause, criminal and civil liability are excluded.