This case raises the following pertinent issue:
- Whether Ajay is criminally liable for criminal negligence.
- Whether Ajay is criminally liable for criminal negligence.
It has been argued that the law of criminal negligence in the UK is unsettled. Generally, negligence in UK criminal law is applied in gross negligence resulting to manslaughter. It is also used in driving offenses. However, nothing precludes its application in other offenses, which result in the injury of another person, following a breach of duty imposed on the offender.
First, in criminal negligence, the offender must have a duty towards the society with regards to the specific act and/or conduct in question. Accordingly, English law applies the objective test to qualify the standard of duty to be met by individuals in a criminal negligence case. In McCrone v. Riding, which was a criminal negligence case, the court used the qualified driver standard to hold that every driver is expected to perform their duties under the said standard.
Another critical element to consider in criminal negligence cases is the aspect of causation. Notably, to establish causation the act or omission of the offender must have directly caused the injury on the victim. Accordingly, the victim must not have suffered the injury, but for the Defendant’s conduct. In R v White, the accused was acquitted when the victim died of a different reason from what the accused actually intended. According to the court, the accused could only be found guilty if the death would have occurred but for the Defendant’s actions.
Also, under criminal negligence, the negligent act must have resulted from a culpable act. Therefore, an accused person would be acquitted if the court finds no culpable conduct that resulted to the injury of the victim. In R v Dalloway, the Defendant was found not guilty after the horse he was riding knocked over, and killed a child who ran in the horse’s path. According to the court, no culpable conduct could be attributed to the Defendant.
Lastly, for every criminal action (except for strict liability crimes where only the actus reus matters), the prosecution must prove the two elements of the crime: the mens rea and the actus reus. Under mens rea, the court probe the intention of the accused person. Intention can either be direct or indirect. On one hand, direct intention is where an individual purposes to achieve a particular objective, while indirect intention can be implied from the facts. Notably, indirect intention can be established where the accused person was aware of the gravity of the risk of his conduct.
In the instant case, as a Tatoo artist, Ajay had a duty of care towards the society with respect to his trade. Notably, the UK government has issued several regulations regarding the trade of tattoo artists. By necessary implication, these regulations create a standard of practice for tattoo artists. Ajay was therefore bound by the highest standard of practice for tattoo artists, in compliance with every relevant regulation.
However, Ajay breached the said duty by first intentionally tattooing his initials on Boris’ neck without Boris’ knowledge or consent. This conduct amounted to direct intention, which resulted in Boris bearing tattooed initials, which he did not approve. Next, Ajay breached the duty by failing to conduct all necessary precautions to ensure he did not inject the ink too deep. Notably, Ajay was well aware of the substantial risk involved in the procedure.
In light of the foregoing, Ajay is fully liable for criminal negligence. He should have conducted all due diligence to ensure he avoided the substantial risk of the complex procedure. Also, he is fully liable for intentionally tattooing his initials on Boris’ neck.
BIBLIOGRAPHY
CASE LAWS
McCrone v. Riding [1938] 1 All ER 137
R v White [1910] 2 KB 124
R v Dalloway [1847] 2 Cox 273
R v Woollin [1998] 4 All ER 10.
STATUTES AND REGULATIONS
Tattooing of Minors Act 1969.
Regulation of Cosmetic Piercing and Skin-Colouring Businesses: Guidance on Section 120 and Schedule 6.
Provision and Use of Work Equipment Regulations 1998 (PUWER);
Provision and Use of Work Equipment Regulations 1998: Approved Code of Practice and guidance.
JOURNAL ARTICLE
Spencer, J., & Brajeux, M., ‘Criminal Liability for Negligence—A Lesson from across the Channel?’ (2010), The International and Comparative Law Quarterly, 59(1), 1-24.
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