Mens Rea – Negligence
Negligence is not actually a type of mens rea because it does not require advertence on the part of the accused to a particular risk, but it is a legal fault element. An act is negligent if it falls below the standard of a reasonable man. Caldwell recklessness overlaps with negligence when the accused may be liable where he fails to give thought to an obvious risk. Negligence extends outside Caldwell recklessness to include situations where the accused thought of the risk and concluded that there is no risk. Other negligent acts would be situations where the person thought about the possibility of risk and unreasonable thought it does not exists and situations where the person recognised risk and took steps to eliminate it but fell below the reasonable standard. The test of the reasonable man reflects special characteristics of the accused.
Traditionally negligent was only a sufficient mental element in manslaughter (Gross negligence), but now a few more offences could be committed by negligence as the basis of liability.
Negligence is related to criminal law in another aspect as its non-existence could be used as a defence for some offences of strict liability, eg offences under the TDA.
