QUESTION; IS NEGLIGENCE A FAIR BASIS FOR CRIMINAL LIABILITY

Negligence is the omission to do something which a reasonable person would do to avoid

consequences that threaten or harm the safety of the public. Negligence can hence be both a fair
and unfair basis for criminal liability, on one hand negligent offenders should be punished for
their omissions while on the other hand punishing them only for their act and not their state of
mind is unfair in criminal law. Below are some of the reasons supported by case law, from both
perspectives as to why negligence is either an unfair or fair basis for criminal liability.

Negligence is a fair basis for criminal liability as it upholds the main function of criminal law by
protecting members of the public and their interest and punishing those that cause harm to the
public. The use of negligence as a basis for criminal liability deters people and makes them
more cautious to avoid dangerous conduct and omissions that may lead to offences such as
manslaughter, hence protecting the public. In a case of The Republic Vs Tutton in which the
defendants were the parents of a deceased five-year-old diabetic who had been deprived of his
insulin medication by his parents on the belief that he had been miraculously healed, leading to
his death, the two were convicted for manslaughter. The judgment was made in the observation
that life ought to be preserved and due care should have been provided to protect the life of the
deceased regardless of the beliefs of his parents.

Negligence is a fair basis for criminal liability as ensures professionals such as medics and
healthcare providers of all ranks and other people that provide care such as parents provide
reasonable care for those under their care. Cases where medics for example give wrong
prescriptions to patients resulting to their death from the medication leads to manslaughter. In a
case closer home Estate of BMN Vs Dr. Charles GithinjI. The defendant who was a doctor that
ran a pharmacy wrongly prescribed and administered drugs to the deceased 17-year-old girl
leading to her death the following morning. Such cases and others of professional negligence
leading to loss of life are hence fair to be found and punished under criminal law

Negligence is a fair basis for liability in that no one should be free from liability, everyone who
commits an offence on any grounds except those stated otherwise should be held responsible for
their actions and omissions as no one is above the law and all public interests should be
safeguarded by the
Negligence is not a fair basis for criminal liability as it does not require mens rea to find a person
liable as opposed to the basis of both mens rea and actus reus for a person to be found guilty in
criminal law. In the case of Wells Vs State

Negligence is not a fair basis for criminal liability as the accused person might not have foreseen
the possible implications of his omissions even after taking all reasonable care. In the case of
David Kiilu Vs, the Republic, Kiilu was a head teacher who took all reasonable measures to
prevent the burning of the school by students, after suspecting the presence of petrol in the
school, despite the reasonable care taken the students burnt the school causing the death of 17
students. Luckily for the head teacher and his deputy the court found them not guilty.

Negligence is not a fair basis for criminal liability because some people are not able to provide a
legal duty of care and hence their negligence shouldn’t constitute criminal liability. According to
the penal code section 14 states that children under 8 years are not criminally responsible for any
act or omission, while those of 12 years are not criminally responsible for any act or omission
unless it is proven that they had the capacity to execute the crime.

In conclusion, negligence in criminal law is serious as it leads to implications such as loss of life
and is more important as compared to negligence in civil law. The implications as seen in section
243 are serious and hence negligence is a fair basis for criminal liability
Reference:

George P. 1971 The Theory of Criminal Negligence. Pennsylvania; University of Pennsylvania

Press

H.L.A Hart.1968. Negligence, Mens Rea and criminal Responsibility. England. Oxford
University Press

The penal code

Kenya Law Reports