No description available.

This thesis presents a normative yet practical account of how Scots and English criminal law should assess the culpability of careless persons. At present, the law in both jurisdictions distinguishes between two types of culpable, unjustified risktaking: recklessness and negligence. In everyday language, these concepts have blurred edges: persons are labelled “reckless” or “negligent” with little thought to the difference, if any, that exists between these terms. Although unproblematic in the “everyday” context, this laxity in definition is inappropriate in the criminal courtroom. Negligence is not usually a sufficient form of culpability for serious offences, whilst recklessness typically is. In the most serious crimes, recklessness thus marks the limit of criminal liability. The concept ought, therefore, to be well understood and developed. Unfortunately, courts both north and south of the border have had difficulty defining and distinguishing between recklessness and negligence. This thesis explores the resulting jurisprudential quagmires and contends that, in both jurisdictions, the absence of a visible theory of culpable carelessness accounts for the courts’ difficulties. It then looks to criminal law theory to construct a defensible account of culpable carelessness which can distinguish clearly between recklessness and negligence and explain the circumstances in which the latter ought to be criminally culpable. Finally, the thesis considers the practical implications of this theory.

This research examines the legal issues surrounding killing in defence of property in three selected jurisdictions: South Africa, Cameroon and the United States. The comparative analysis illustrates that although the right to protect one’s property is universal, this defence is interpreted differently in the various jurisdictions. Another issue considered in the study is the constitutional right to life in each jurisdiction and whether or not an unlawful attack against one’s property creates a legal entitlement for the attacked party to take the life of another in defence of his or her property. Private defence of property is available when a person uses force to defend an interest in property, for example; to prevent a would-be thief from taking his own, or another’s property, to prevent someone from damaging his own or another’s property, to prevent an intruder from entering his own or another’s property. When an accused pleads private defence, his claim is that his harm-causing conduct was, in the circumstances, lawful. The reasonable use of force (short of deadly force) in the private defence of property is not disputed. However, the use of deadly force in protection of property is controversial, especially in a constitutional state such as South Africa where life should be prized above property. One should however also consider that there is a close link between the private defence of defending life and of protecting property. In many cases, an assault on property also involves a threat on life. However, there are cases of private defence of property where no threat to bodily integrity exists. These situations will be examined in all three jurisdictions and measured against the various constitutional imperatives. Conclusions and recommendations are made as regards the legal framework on the defence of property in the criminal law of the various jurisdictions. / Criminal and Procedural Law / LL. M.