criminal law

The Incompatibility of Criminal Law and Negligence

However, this does not justify an indiscriminate transplantation of civil negligence into the criminal realm. After criminalising negligence in s304A of the penal code, the court further extended the civil standard of care in the criminal context in Lim Poh Eng v PP without qualification. This is an act that ignores the fundamental principle of our criminal jurisdictions. The local penal code as drafted by Lord Macaulay was conceived from a utilitarian perspective, the central philosophy of which was aptly expounded by Jeremy Bentham as:

‘All punishment in itself is evil. Upon the premise of utility, it ought o be admitted in as far as it promises to exclude some greater evil.’

While succinctly pointing out the deterrent role of punishments, Bentham also highlighted the inherent problems of criminalising negligence. One can never be deterred from causing harm ignorantly. There is no utility by enacting a legally objective standard, and then punish those who are incapable of attaining; or by a momentary lapse of mind, accidentally deviated from that standard. Even if the negligent kind man above were imprisoned for 2 years, he is unlikely to never be negligent again without refraining from all social activities. Contrary to the utilitarian principle, punishment in this context imposed an additional loss on top of that which has already been suffered by the victim without gaining any benefit.

The ‘incompatibility’ problem was manifested when the Court of Appeal in Ng Keng Yong v PP imported the Nettleship v Weston principle into criminal law. The court explained that by convicting a trainee OOW for a failure to attain the standard of a reasonably competent OOW will promote the safety of everyone around the OOW in the future. However, navigation is a complex skill that requires intensive training to develop. It is not possible to expect from a trainee the competency she has not yet obtained. The standard of safety will not improve however harsh the criminal punishment might be.  This disregards the fact that Nettleship was decided from a risk-distribution perspective: The presence of driving insurance means that it is fairer for pedestrians to expect reasonable competency in all drivers and claim any compensation should any driver fall below that standard. Again, it concerns the tortious aim of distributing a pre-existing social loss. In the criminal context, the picture is completely different. If a negligent actor cannot be deterred, there is no reason for the state to inflict upon him additional pain accompanied by the social stigma of being a criminal, on top of the civil compensation for which he is already liable.

Subjectivized Standard of Care: Fairer, Yet Incomplete

A brilliant, yet imperfect, solution as proposed by academics and legal theorists has been to subjectivize criminal negligence. HLA Hart suggested in ‘Negligence, Mens Rea and the Criminal Law’ a 2 stage test that adjusts the standard of negligence to account for the accused’s capacity to comply. Here, criminal negligence is only justified if the accused failed to comply with the standard that is attainable by a reasonable person with the accused’s mental and physical capacities. This represents a fairer position in deciding criminal negligence since no one would be punished for a failure to achieve a certain objective standard. Indeed, this subjectivized criminal standard has been accepted by Professor Victor Ramraj and Michael Hor. Ng Keng Yong would no doubt have been decided differently under this test.

The Problems With Hart’s Test

However intuitively attractive Hart’s test is, it is an objective test nevertheless. While it mitigates the harshness of Ng Keng Yong by customizing the objective standard according to a reasonable man in the accused’s shoes, whether the accused was in fact capable of achieving that standard is immaterial. It misses the main point that a negligent actor is conceptually inadvertent to the unreasonable risk however subjectivized the standard that law imposes on him. Negligence is an accident, a momentary lapse of mind. While the prospect of punishment deters the intention to cause harm, it does not deter ignorance or mere incompetence.

Furthermore, the precise manner in subjectivising the standard is inherently ambiguous and indeterminate. Age, disabilities and the status of being a trainee are straightforward factors. Complications arise when the accused is intellectually incompetent but not legally insane. On similar facts, it seems legally unacceptable to acquit an adult with IQ 80 and imprison another with IQ 180. A worst scenario is when the accused has so many peculiar characteristics that it becomes practically impossible to determine a coherent standard that applies to him.

The main motivation behind criminalising negligence probably stemmed from a conceptual mix-up with rashness. In R v Bateman, the court explained that criminal negligence is a negligence that is criminal. Hidden behind this apparent circularity is a sentiment to punish those who exhibit a culpable disregard for human life. In essence, this equates criminal negligence to recklessness because one cannot disregard or be indifferent towards human life without knowing that he is generating an unreasonable risk via his conduct.  Similarly PP v Poh Teck Huat was mistaken to claim that ‘negligence does not end nicely where rashness begins and there is a certain measure of overlap’. 

It is submitted that negligence and rashness are different conceptual tools that do not cross each other’s boundaries. While the rash actor chooses to disregard the risk despite being subjectively aware; the negligent actor is ignorant to the risk however unreasonable this ignorance might be. Hence, the former, but not the latter can be deterred. S304A covers sufficient grounds of justice by punishing rashness in the absence of negligence.

In conclusion, negligence should be decriminalised. Prospects of civil liability are sufficient to deter a person from behaving negligently.  There is no utilitarian value by inflicting additional pains on the accused on top of the loss suffered by the victim if the accused was merely negligent. Rashness alone is capable of dealing with people who shows a disregard for human life, and rashness can be deterred because it involves a choice. Criminal law very often involves balancing between the interest of the individual and the public. In professor Ramraj’s words:

‘While We all want the criminal law to protect us from harm, we recoil at the idea that we might be punished for harming someone accidentally so as to serve as an ‘example’ for others.’

There is always a danger of criminalising too much, especially when no ‘greater good’ is served.