By contrast, when the agent is aware of a risk but assumes that the result will not
occur, this is called conscious negligence. This may sound a lot like conditional
intent, but the main difference is the agent’s attitude towards the risk; in case of
“mere” consciousness negligence, the agent is conscious of the risk but nevertheless
trusts in the good outcome. He does not take this favorable outcome for granted but
still thinks everything will be all right.
Negligence in English Law Since English law already accepts a third form of
mens rea, called “recklessness,” and distinguishes recklessness from negligence in
the form of awareness of the risk, it does not recognize a concept such as “conscious
negligence.” Negligence in England is always unconscious or inadvertent negli-
gence, as it reflects a culpablefailure to be awareof the unreasonable risk entailed
in one’s conduct. This means that cases of risk taking that in the Netherlands and
Germany would lead to a liability based on conscious negligence could lead to
liability for recklessness in England.
The above example of the construction workers illustrated this. Their conscious deviation
of the required standard of care amounts to recklessness in England and conscious negli-
gence in the civil law systems.
Keeping in mind the above comparison ofdolus eventualiswith recklessness, we
may conclude that recklessness may cover both cases of conditional intent and
conscious negligence.
It is interesting to note that negligence offences are not that popular in the English system,
the main exception being the offence of gross negligence manslaughter. Not even five
percent of all offences are crimes of negligence, while on the continent most intentional
offences have a negligent counterpart. In the traditional English view negligence is not even
considered a genuine form ofmens rea, i.e. a cognitive state of mind, but is rather a failure
to comply with a standard of conduct. In Germany and the Netherlands negligence is much
more popular because these legal systems only operate with two kinds ofmens rea. If intent
cannot be proven, negligence functions as a safety net. In England there is less need for
negligence liability due to the concept of recklessness covering cases that are labeled as
conscious negligence on the continent.7.7 Justifications and Excuses
Even if it is clear that a person’s conduct fits the definition of an offense, the
question may come up whether he is liable to be convicted for that offense.
Criminal law provides certain circumstances (defenses) that take away the criminal
liability of the perpetrator. In general we distinguish between justifications and
excuses. This dichotomy is widely accepted in the continental legal systems and is
also becoming more important in England.
Whereas two decades ago, English law still appeared to lack interest in the distinction for
want of practical relevance, the conceptual division between justifications and excuses has
gained increasing popularity.7 Criminal Law 139