Notes on recklessness.

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The word recklessness means the taking of an unjustifiable risk. The risk
may be of a particular consequence occurring or being reckless as to
whether a circumstance exists.
In deciding whether an individual is reckless the jury should consider-
1) How likely the risked consequence was
2) The social utility of the deft's. action. I.e. a surgeon is always taking
a risk when he/she operates.
3) The practicality of any possible precaution that could be taken to
avoid the risk.
Why is recklessness important?
It is an alternative mens rea than intention for a large number of criminal
offences including-
Criminal Damage
Malicious wounding
Inflicting GBH
Recklessness is easy to prove and is less culpable than intention, yet more
culpable than negligence.
Two concepts
Traditionally there were two different definitions of recklessness:
i) Subjective recklessness- Where the deft. sees a risk but
continues to take it.
ii) Objective recklessness- Where the deft. does not see a risk but
the reasonable person would have.
The current law
All crimes that require recklessness as their mens rea (e.g. criminal damage)
are now governed by the House of Lords judgement in R v Gemmel and
Another (2003)
This case clarified the definition of recklessness, set in the Law
Commission's Draft Criminal Code Bill (1989):
"A person acts recklessly...with respect to-
i) A circumstance when he is aware of a risk that it exists or will
ii) A result when he is aware of a risk that it will occur; and it is, in
the circumstances known to him, unreasonable to take the risk
The development of recklessness

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Cunningham (1957)
Deft. ripped a gas meter from a wall in order to steal the money inside. He
left a ruptured pipe, leaking gas, which seeped through into the
neighbouring house where the victim inhaled it. He was charged with
maliciously administering a noxious substance so as to endanger life,
contrary to Section 23 of the Offences Against the Person Act 1861, and
was convicted. On appeal, his conviction was quashed, as the deft. argued he
had foreseen no risk of his action harming another.…read more

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This new definition did not overrule Cunningham, it merely added an extra
objective element.
This approach was used in Seymour (1983), a reckless manslaughter case,
confirming the new objective rule.
This objective test caused many problems.
The Caldwell rule was unpopular with many judges as it could easily create
injustices. To avoid poor decisions judges distinguished the ruling in
Caldwell, applying it only to cases concerning criminal damage.…read more

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In 2003, with R v Gemmel and Another, the H/L use the practise statement
to overrule Caldwell as they agreed that the Caldwell rule was unfair, hard
for a jury to understand and was heavily criticised by nearly all academics.
R v Gemmel and Another (2003): The 2 defts, aged 11 and 12, set alight
bundles of newspapers in the back yard of a shop and threw the burning
paper under a wheelie-bin. They then left the yard. Approximately £1
million damage was caused.…read more

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