Negligence in Criminal Law: Principles, Degrees, and Significance

Negligence is an important form of culpability in Norwegian criminal law, standing in contrast to intent. While intent requires awareness of the nature or consequences of the action, negligence can occur when the perpetrator should have acted differently, even when they did not necessarily have any awareness of the consequences. This article examines the content of the negligence concept, various forms of negligence, and areas of application in criminal law.

The Content of the Negligence Concept

The core of the negligence concept is objective: The actor has not behaved as a skilled and considerate person would have. However, this is only a preliminary guideline that must be further detailed. While intent is defined by psychological criteria—what the perpetrator has intended or understood—negligence is determined by comparison with a norm for proper conduct.

The Criminal Code Commission has proposed the following legal definition: "Negligence is present in those who act contrary to the standards required for prudent behavior in the area, unless, based on their personal circumstances, there is no basis for blame."

Conscious and Unconscious Negligence

In criminal law theory, there is a distinction between conscious and unconscious negligence:

• Conscious negligence occurs when the perpetrator is aware that they are taking a risk. A driver who pushes through traffic at very high speed to catch a train, while being anxious about the risk involved, acts with conscious negligence.

• Unconscious negligence occurs when the possibility of danger is not at all in the perpetrator's thoughts. A driver who is lost in their own thoughts and does not react quickly enough when a child runs into the road exhibits unconscious negligence.

Psychologically, these two forms of negligence are very different. Conscious negligence represents a lack of consideration, whereas unconscious negligence represents a lack of attention. In practice, however, it is not always easy to draw the line between them, and the criminal law’s negligence provisions address both forms in the same manner.

Gross and Simple Negligence

The distinction between conscious and unconscious negligence does not coincide with the difference between gross and simple negligence:

• Gross negligence exists when, according to the Supreme Court, "there must be a qualified blameworthy conduct that leads to severe reproach for lack of caution."

• Simple negligence involves less serious cases of negligence.

Usually, conscious negligence will be more blameworthy than unconscious negligence. However, conscious negligence may be excusable, and unconscious negligence can be very gross.

Some penal codes require gross negligence, but otherwise, the degree of negligence mainly impacts sentencing.

Assessment of Negligence

Distinction between Intent and Blameless Action

Conscious negligence is distinguished upwards against intent. The lower limit for intent is simultaneously the upper limit for negligence. For unconscious negligence, there is no such delimitation difficulty, since the perpetrator has not considered the possibility of the harmful result at all.

What often causes difficulties in practice is the distinction downwards against the blameless action. The starting point is to ask whether the action is defensible according to common prudent judgment. An action is not negligent just because it contains certain elements of risk. Even though a driver is acutely aware of the danger of a child running into the road, they are not liable if the accident happens when driving at a moderate speed and in accordance with traffic regulations. This is referred to as "the permitted risk."

In many areas of life, more specific assessment standards form, such as standards for how a motorist should drive, a doctor should treat patients, or a craftsman should perform their work. In certain areas, special caution is required, which may also be established in specific safety regulations.

Civil and Criminal Negligence

It is important to note that the standards for caution differ in criminal law and tort law. In tort law, the question is who should bear the damage, and it may be important to also consider lesser negligence. In criminal law, however, punishment should be limited to "the more qualified cases of indifference, recklessness, or thoughtlessness."

Therefore, it may occur that a person is acquitted of criminal charges but still convicted to pay damages. In addition, the burden of proof differs in the two relations.

Subjective or Objective Negligence Assessment?

A key question is whether the assessment of negligence should be subjective or objective—should the perpetrator's individual characteristics be considered? This question is complex and requires a nuanced approach.

The fundamental condition of liability is that the action contradicts the objective standard for prudent conduct. But the question is whether individual extenuating circumstances can lead to an acquittal even if an error has been committed objectively.

Some Important Principles:

1. Local Knowledge and Information: Here, the individual must be judged based on their actual knowledge, unless they can be reproached for not acquiring such knowledge.

2. Lack of Attention: The standard is usually the same for everyone. It is not viable to claim that one is a careless person.

3. Lack of intelligence, experience, composure, impaired vision/hearing: Here the standard is initially subjective. The perpetrator is exempt from liability if they have done as well as they could based on their prerequisites.

4. Misdirection of Attention: This is often assessed as negligence, but it is debatable because the basis for the reproach required for punishment may be lacking.

5. Self-induced Intoxication: Impairment of abilities due to self-induced intoxication will not be taken into account.

Activities Requiring Special Expertise

A special assessment applies to cases where a person has voluntarily engaged in activities requiring special expertise, such as driving vehicles or mining. If it is negligent to engage in the activity at all given one's prerequisites, one becomes liable for any errors.

However, if the person cannot be reproached for engaging in the activity (such as a doctor who has passed their exams or a motorist with a valid driver's license), they are usually not held criminally liable if it turns out that their knowledge or skills do not suffice in a difficult situation. This is illustrated in Rt. 1951 p. 1028, where a truck driver was acquitted in a criminal case after a miscalculation during overtaking, even though they would likely have been convicted in a civil liability case.

The Caution Requirement in Different Types of Penal Codes

The caution requirement varies according to different types of penal codes:

1. Integrity Violations

In penal codes concerning harm to person or property (such as negligent manslaughter or negligent damage), the action must be negligent in relation to this type of harm. For a conviction for negligent manslaughter, it must be attributable to the perpetrator as negligence that they did not consider the possibility of a fatal accident.

There must also be a causal link between the error and the damage. It is not enough for an action to be negligent and actually lead to damage if the negligence in the specific case has been irrelevant.

2. Risk Offenses

Some penal codes describe the offense as a negligent, risk-inducing conduct, such as the Penal Code § 352 concerning those who "cause a risk of fire through careless handling of fire or flammable substances," or the Road Traffic Act § 3.

In practice, often a lesser degree of negligence is required to be convicted under such provisions than to be held responsible for the consequences of the negligent conduct. This has been particularly evident in the relationship between the Road Traffic Act § 3 and the criminal provision on negligent manslaughter.

3. Violation of Safety Regulations

The legislation contains many preventive regulations on safety, such as in industrial enterprises or concerning equipment and driving of motor vehicles. These regulations often aim to enforce a higher degree of caution than follows from the general negligence norm.

Violation of safety regulations is very often criminally liable even in its negligent form. The crucial factor is whether the defendant has shown the attention that can reasonably be expected in relation to the specific penal code.

4. Violation of Business Regulations

The legislation has many regulations on conducting business activities, such as maximum prices, rationing, opening hours, or alcohol serving. Here, the question is whether the accused has done what can reasonably be expected to avoid breaking the provision the charge concerns.

Punishment for Incompetence

The Penal Code § 325 provides punishment for an official or employee who "shows gross incompetence in service". The expression "gross incompetence in service" covers both the objective and subjective conditions for punishment.

For penal provisions directed at gross incompetence, it can hardly be invoked as a basis for exemption from punishment that the official has done as well as they could according to their prerequisites. The legislator's intention must have been that whoever voluntarily assumes a position thereby submits to a certain objective assessment of whether they meet the position’s requirements.

Conclusion

The negligence concept in criminal law is multifaceted and must be assessed specifically in relation to the various penal codes. Generally, it can be said that the requirements for caution must be adjusted according to the significance of the interests that the penal code aims to protect. This is well illustrated in Rt. 1921 s. 287, where the Supreme Court emphasized that the duty of caution must be subject to a reasonable limitation, depending on which interests are to be protected.