Crimina Law: Recklessness

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Recklessness

Subjective fault: 

- Reckless as to circumstance element: when he/she is aware of the risk that it exists/will exist

- Reckless as to a result element: when he/she is aware of a risk that it will occur 

AND IT IS IN THE CIRCUMSTANCES KNOWN TO HIM, UNREASONABLE TO TAKE THAT RISK!

- Recklessness – D foresaw the risk and unreasonably went on to run it 

- Some crimes such as attempt can only be committed intentionally, so distinguishing between intent and recklessness is crucial, but this depends on how one chooses to define intent. Many crimes can be committed intentionally OR recklessly. The Draft Criminal Code 1989 proposed that reckless should be basic fault element for all offences. Distinction between negligent and reckless is crucial too as this can decide blameworthyness and negligent individuals often are exempt from criminal liability, whereas reckless individuals are not. 

- There is a very strong attachment in English criminal law to subjectivity – only appropriate to use the criminal law to punish those who foresee risks (eg. Law Commission, Cunningham). 

- Forseeability/foreseeable=(objective Caldwell) vs. foresee/foresight=(subjective Cunningham)

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Law prior to G

- Recklessness has been chequered+uncertain: judges struggle to differenciate between gross negligence vs. simply failing to foresee an obvious risk vs. whether it should be limited to cases where D subjectively realised a possibility of the consquence. 2 species of recklessness:

1. Cunningham (1957) recklessness (subjective approach of recklessness approved):

1) did D foresee the possibility of the consquence occuring and

2) was it unjustifiable or unreasonable to take the risk (this depends on social importance of facts and chances of forbidden consequence occuring). i.e. 1 in 1000 chance of high speed train crashing=social value more important! If 1 in 1000 chance of killing friend playing Russian Roulette=social value is unjustifiable. Concept of recklessness=inherently political!!

D removed gas meter to steal £, damaged pipe, gas escaped, endangered lives in area, charged w/reckless as to life, did he foresee risk? D claimed no, convicted anyway as reasonable person would, HoL's quashed, subjective as believed he didnt, even though reasonable person might have, subjective prevailed. Approved in R v Stephenson 1979: D broke in to a hay stack, lit to keep warm, hay burnt causing crim damage, reckless? 1st ins: judge directed jury to decide objectively+he was convicted, but he was not a reasonable person as was mentally ill+subjective test should be used on him personally, CoA=no liability. 

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Law prior to G

2. Caldwell/Lawrence recklessness (Lord Diplock in both) (1982): radical change when HoL's handed 2 recknlessness jud's on same day. Only affected 1st limb of test (Cunningham): whether D must foresee the posibility of risk occuring, not 2nd limb: whether unjustifiable to run the risk. Caldwell 3:2 (Lord Diplock): D set fire to hotel,drunk, pleaded guilty to crim damage,not to reckless of endangering a life. HoL's held Q should have been: did D foresee a risk (subjective) but Diplock defined recklessness2decide whether drunkeness a defence to basic intent offence (not needed)+invented new 2nd objective limb! Said Cunningham=restricted meaning (no difference in moral terms between those who forsee a risk+those who fail to foresee them when they should have),no reason why Parliament when decided to revise law should go out of its way to perpetuate fine+impractical distinctions between 1 mental state+another (disrespect Parliament's Crim Damage Act by ignoring+trying to ignite objective not subjectivity as intended). 'A person is reckless as to whether such property would be destroyed/damaged if: 1) he does an act which in fact creates an obvious risk and 2) when he does the act, he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved+has nonetheless gone on to do it (obviousness to reasonable person=objective) Overruled CoA cases. Lord Edumund-Davies+ Lord Wilberforce dissented: recklessness, per Cunningham=foresight of consquences, with objective judgement of reasonableness of risk taken, 'never crossed my mind' vs 'closed my mind to it'.State of mind=all-important. 

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Caldwell critique

The Caldwell model=very criticized for not taking into a/c, by forming an objective approach, of the mental capacity (age or characteristics). The objective test of recklessness was very wide and failed to take notice of those who had not genuinely thought about the possibility of there being a risk but objectively speaking a reasonable person would have thought about the possibility. Judges were applying objective ‘Caldwell’ direction reluctantly as bound to do: Elliot v C (a minor) a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. Accepted she did not foresee the risk of fire+not considered the possible consequences but court reluctantly followed Caldwell=D is reckless as to whether property is destroyed if she fails to give any thought to the possibility that there is a risk that property will be destroyed+that would be obvious to a reasonably prudent person, even though that risk would not have been obvious to D (by reason of age or lack of experience or understanding) if he had given any thought to the possibility that property would be destroyed.

- Caldwell recklessness excluded D who stops to think there is a risk, concludes there is no risk, and acts. Such a person doesnt come within the test which requires the act not either 'given any thought to the possibility of such risk' or 'must have recognised that there was some risk involved'. This is a lucuna/gap in the law. 

- Cunningham=subjectivity=under inclusive. Caldwell= objectivity =over inclusive.

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After Caldwell: reticence?

- R v Reid (Lord Keith)'absence of something from a person's state of mind is as much part of their state of mind as is its presence, inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. Stressed that Lord Diplock qualified the model direction as "an appropriate instruction+could introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights (right to a fair trial) in cases involving a minor or other person's of reduced capacity. This is arguable because right to fair trial is in regards to the procedure of the trial+not what the law says but if a child is not judged in accordance with their capacity+merely in relation to an adult’s capacity, they are debatably being deprived of a fair trial.

- R v Seymour: Lord Roskill said that the word "reckless" was to be given the same meaning in relation to all offences which involved recklessness as one of their elements unless an Act of Parliament otherwise provided. But when R v Adamoko went to the House of Lords, it was said that, in cases of involuntary manslaughter, a trial judge need not direct a jury in accordance with the definition of recklessness in Caldwell/Lawrence.

R v Sataam and Kewal:CoA held that this test did not apply to the meaning of the word "reckless" in the definition of r*ape in section 1 of the Sexual Offences (Amendment) Act 1976.

 

 

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R v G

- It was agreed that the two tests could not co-exist by both supporters so...R v G limited to criminal damage cases but it has been interpreted as applying to other offences as well, resulting in the effective demise of Caldwell/Recklessness. 

Facts: 2 young boys (11+12), entered back yard of shop, lit newspapers and left, set fire to bins against shop wall, spead up wall and caused £1m damage. Boys said thought fire would burn out itself and gave no thought to risk of spreading. Convicted as obvious risk to reasonable man and not person of those characteristcs taken into a/c. HoL's (Lord Bingham): modify Lord Diplocks defintion to take a/c of other characterisitcs i.e. age. Parliament intended to give effect to Law Comm's proposals that reckless bear its subjective Cunningham meaning. Caldwell=misinterpretation of that act. 3 reasons for departing: 1) state of mind when acting must be culpable. Most obvious state of culpable mind=intention, stupidity/lack of imagination=does not render conviction of serious crime or punishment. 2) Diplocks formulation leading to obvious unfairness. Sense of fairness of 12 rep citizens=bedrock on which admin of criminal justice is built. Any law running counter to that must cause concern. It is neither moral or just to convict a D (least of all a child) on the strength of what someone else would have apprehended if D himself had no such apprehension. 3) Critique of Caldwell shouldnt be ignored.

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R v G: Lord Bingham more

 Unfortunate that Caldwell was self-intoxication, (policy decision?), decision didnt require House to give close consideration to liability of mentally ill or young who are not reasonable. Argued for comparison w/normal children of that age not reasonable man on underground standard=attractive but open to 4 objections: 1) would offend principle that conviction should depend on proving the state of mind of the individual D to be culpable. 2) if modified for children on grounds of immaturity, it would have to be modified for mentally impaired on the grounds of their limited understanding. 3) Any modification along such lines would open the door to difficult/contentious argument concerning qualities/characterisitics to be taken a/c of for purposes of comparison. 4) to adopt this modification would be to substitute one misinterpretation for another.

- Glanville Williams in 'Recklessness Redefined' 1981 suggested: D should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed, where such risk would have been obvious to him if he had given thought to the matter. Lord Bingham suggested this is attractive but not all embracing either as it doesnt meet the objection principle+doesnt present a correct interpretation+is open to further objection of over-complicating the task of the jury: it is another thing to decide whether the risk would have been obvious to him if the thought had crossed his mind and far too speculative, making the juries task more complex. The simpler the jury's task, the more likely its verdict is reliable! 

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R v G more

- Lord Steyn: accepted meaning of recklessness before Caldwell involved foresight of consquences. This subjective state is to be inferred 'by ref to all evidence, drawing such inferences from evid as appear proper, that is what Parliament intended by implementing the Law Comm proposals, and fits in the general tendency in modern times of our criminal law. Most mistake cases have accepted subjectivity: defence of honest but mistaken belief has been raised (B v DPP and R v Williams (Gladstone) 'as he believes them to be in the defence of himself or others'. If D closes his mind to a risk, he must realise there is a risk and will be reckless per Booth v CPS

- The law on self-induced intoxication remains an exception and unaffected by R v G. Lord Bingham, importantly, restricted him judgment to the meaning of recklessness in the Criminal Damage Act 1971: 'I am not addressing the meaning of recklessness in any other statute or common law context': he approved the Lawrence meaning adopted for recklessness in driving offences. Lord Roger affirmed Caldwell better for driving offences recklessly. BUT all offences involving reckless driving have been abolished by other dangerous driving ones in the Road Traffic Act. Caldwell in respect of criminal damage is overruled. Caldwell can still apply to other offences, but this are restricted and rarely used and likely that R v G will be applied. As stated in Brady, R v G has much wider implications and application. R v G laid down 'general principles' as per AG Ref (No 3) 2003 CoA. 

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R v G more

Current subjective recklessness test per R v G(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; +it is, in circumstances known to him, unreasonable/unjustified to take the risk. (Note: a subjective approach and change from Caldwell and less strict threshold).

- The subjective definition of recklessness seems attractive, as it is less harsh than the objective test, which can create injustices, however the subjective test may often fail to catch all of those who are morally blameworthy. There is an immense amount of difficulty in proving the state of a defendants mind (subjectively) for a jury and R v G has no doubt further encouraged this difficulty, which was a decisive factor when Lord Diplock initiated the objective test in Caldwell.A more objective form of recklessness that considers the capacity of the defendant could be advocated, but not a revival of the Caldwell/Lawrence ‘Model Direction’. Once the reason why no thought was given to the risk emerged, it would be relatively straightforward to assess the degree of moral blameworthiness and thus any criminal liability. Such an approach would look beyond the subjective/objective dichotomy and add another dimension, why the accused acted as he did, his motivation or emotion behind the actus reus. It is submitted that the plethora of current definitions and the lack of a morally substantive interpretation will lead to further developments and debate. 

 

 

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R v G commentary

1. Stark (2013) It‘s only words: on meaning and mens rea‘ (2013): argues there should be 1 meaning of recklessness='conscious taking of an unjustified risk', across the board for certainty+semantically graspable. Different localised concerns may apply to the ascertainment of culpable wrongdoing in different contexts+criminal law must be sensitive to this, particularly as this has meant that the MR concepts are unhelpfully defined in various ways. This impedes the communicative endeavour of crim law, which regretfully at present is prevented by the politicisation+fears of codification. Citizens should feel condifent w/out lawyers in their assertions applicable to the law which includes a rich vocabulary that is applied consistently+identifiably (per Duff's argument). Undue discretion is unwelcome, cannot have Caldwell recklessness, Majewski recklessness etc., they can be rationalised down to a manageable number. Parliament need to have a debate about what it means to be culpable. Argues FOR a criminal code. 

2. Keating (2007)'Reckless Children‘: is the prob:age of the children or lack of foresight? None of the alternative methods put forward in R v G would satisfy the damands of the UN Convention of the Rights of Children. Abolition of 700 yr old doli incapax protective mechanism for 10-14 yr old=unfortunate. Children from 10th birthday=criminally responsible. Prospects for reform=bleak! The problem of the age of the children in R v G=lost opportunity. Neither under-inclusive Cunningham/over-inclusive Caldwell=satisfactory for justice. Modifying Caldwell rather than abandoning it! Absolutely compelling case to raise age of criminal responsibility to 14. 

 

 

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Recklessness commentary

- Another solution = judge on reasonable person of D i.e. reasonable child, reasonable adult

3. R. Duff 'Intention, Agency and Criminal Liability' 1990: Caldwell supporters: immense difficulty in proving a persons state of mind=inherently lead2objectively judging against own standards.

4. Law Comm Consult Paper No 188 (now abandoned in 2006): A new homicide act for E+W? 2005: now 1category of recklessness(R v G): foresight of any degree of probability of the risk materialising i.e. D=reckless if foresee a result as highly probable/mere possibility. Law Comm said=too broad a concept+proposed 2 categories: 1) recklesness indifference (second-degree murder='couldn't care less'=willingness2produce result)+reckless stupidity (manslaughter='rashness'=D realises may result in X but stupidly thinks=justified to run the risk)

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Recklessness commentary 2

5. Cath Crosby (2008): Recklessness - the continuing search for a definition: purely subjective (culpable inadvertance) standard fails to catch those who are morally blameworthy. Purely objective (conscious advertance) can lead to injustices. Need a more objective standard but not revival of Caldwell. Capacity-based subjective test already in operation. Synthesis of two approaches is required which can be achieved by openly developing a capacity-based test or introducing a form of practical indifference test (do not care vs. careless).  Once the reason why no thought was given to the risk emerged, it would be relatively straightforward to assess the degree of moral blameworthiness+thus any criminal liability. Such an approach would look beyond the subjective/objective dichotomy+add another dimension, why the accused acted as he did, his motivation or emotion behind the AR. If the reason D did not foresee the risk was because he was angry or set on a course of revenge against someone who had offended him, he would be morally culpable and reckless.

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The law simplified!

Current law 

 D is reckless as to a circumstance or result element: 

o when he is aware the risk exists or will exist; and 

o it is, in the circumstances known to him, unreasonable to take that risk. 

Historical progression 

 Subjective v. Objective definition: 

o Subjective: D is reckless if he/she foresees the risk and goes on to run it. 

o Objective: D is reckless if he/she runs a risk that a reasonable person would have foreseen (i.e. even if they did not foresee it). 

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Potential exam Q's:

INTENTION: 1. The only truely effective and just way to distinguish intention from recklessness is to define intention so as to mean aim, purpose or desire and nothing more. Discuss.

RECKLESSNESS: 2. A person ‘is reckless to the extent that his actions manifest a serious kind of practical indifference, a willingness to bring about some harm, [and] such recklessness, indifference and willingness can be exhibited as much in his failure to notice obvious and important aspects of his action as in his conscious risk-taking. A man may be reckless even though, and partly because, he did not realise the risk which is in fact an essential and significant part of his action’ (Anthony Duff). In the light of this quotation, discuss the ways in which recklessness has been and should be defined.

 

RECKLESSNESS: 3. ‘The difficulty in defining recklessness lies in designing a test which is neither under- nor over-inclusive, but which identifies those who are worthy of blame.’Discuss, in the light of this quote, whether the current law on recklessness is satisfactory.

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