Recklessness is another type of mens rea. It generally involves D taking an unjustifiable risk of a particular consequence occuring, with knowledge of that risk. It represents a lower level MR than intention yet is still sufficient for many serious crimes such as mans, malicious wounding/inflicting GBH and assault occasioning abh.
Specific Intent offences: Murder, s.18 GBH w/intent.
Basic Intent offences: Invol mans, s.20 GBH, s.47 ABH, Battery, Assault.
The question that has troubled the appeal courts is whether recklessness should assessed SUBJECTIVELY or OBJECTIVELY.
After starting with a subjective test requiring D to realise a risk and go on to take it in order to guilty; in 1982 an objective test was introduced. However the original test began and continued to reassert itself throughout the 1990s. Finally in 2003 the objective test was abolished and subjective recklessness is now the only test of recklessness that the law now recognises as being sufficient to establish guilt for BI offences. The P must show that D appreciated the risk and went onto take it. If this cannot be shown, D cannnot be convicted.
The Cunningham test- The original subjective test
The question for the court was actually what was meant by the word maliciously(in s.23 OAPA 1861). The definition given by Professer Kenny in 1902 now means maliciously indicates:basic intent.
Cunningham 1957 D ripped a gas meter off the wall in order to steal the money inside. He unknowingly broke a pipe, leaking gas into next door's house, where V inhaled it. He had not intended to maliciously administer the gas and so the issue was whether D has foreseen the risk of someone inhaling the gas. CA quashed his conviction as he had not intended to cause the har or taken a risk he had knew about (subjective).
Stephenson 1979 D was homeless and decided to shelter in a hollowed out haystack, he was cold so lit a small fire to keep him warm but stack caught fire and various pieces of farming equipment was damaged. CA quashed the conviction and that what was whether D himself has foreseen the risk. (subjective).
Subjective for people offences (Cunningham) and property offences (Stephenson).
The Caldwell Test- The objective test
Caldwell 1982 D was an ex-employee of a hotel, had a grudge against the owner and decided to set fire to the hotel. The fire was put out quickly without serious damage. D claimed he was so drunk that he had not subjectively realised people's lives ight be endangered. Diplock stated that the Cunningham definition was too narrow as it could allow 'guilty' people to go free. It should not only include subjective recklessnesss, but also go further.
Caldwell test- recklessness was to be determined according to what the ordinary, prudent individual would have foreseen.
- D does not need to see the risk, so long as it is obvious to the reasonable person (objective)
- D realises the risk and goes on to take it. (subjective)
If you are not G under the subjective part of Caldwell test, you would be guilty under the objective part.
Rules of precedent- Stephenson overuled so property offences now objective while people offences remain subjective.
Convictions are easier to secure under the Caldwell test as you do not need to prove what D was thinking and therefore property is more protected than people.
However, inconsistencies came in Lawrence 1982 when the HL gave an objective definition to recklessness for causing death by reckless driving; in Seymour 1983 the HL applied an objective definition to recklessness in manslaughter and in DPP v K 1990 an objective test was applied to s.47 ABH.
This objective test caused many problems and injustice as it does not make any allowances for people that are not capable of appreciating the risk. It did not make a distinction between the person who knowingly takes a risk and the person who cannot appreciate it.
Harshness of Caldwell---Elliot v C 1983
14yr old girl of low intelligence/learning difficulties had run away from home and while in a shed played with white spirit and matches which set fire to the shed with the result of it being destroyed. It was found that she gave no thought to the risk of damge but even if she had she would not have been capable of appreciating it. Divisional court reluctantly overturned her acquittal as they were bound by the Caldwell precedent which was objective.
Rejection of Caldwell
During the late 1980s/early 90s the courts began a gradual movement to reject Caldwell in 'people offences' cases.
Spratt 1991 "... taking the risk of harm ensuing with foresight that it might happen."
Parmenter 1992 "...D intended or that actually foresaw that his act would cause harm."
As far as manslaughter was concerned, in Adomako 1994 it was decided that objective recklessness set too low a threshold of liability for such a serious crime; that too many people could be unfairly convited. Therefore, people offences had reverted back to the original subjective test.
The Future- R v G and another 2003
In 2003, the HL overruled Caldwell 1982 in R v G and another 2003 and unanimously restored the subjective test for criminal damage.
Ds(11 and 12) entered the backyard of Co-op, set fire to some bundles of newspapers and put them under a large plastic bin and left the yard thinking the fire would go out by itself but instead it spread and caused an estimated £1 million worth of damage. The CA bound by precedent reluctantly upheld the conviction but the HL quashed it and stated that Diplock had interpreted 'reckless' wrong. Parliament did not change the definition after Cunningham so appeared to approve of the subjective view.
HL: the test of a new legal rule is how it performs in the real world and the rule laid down by the majority in Caldwell failed this test. It was severly criticised by academic lawyers and juries found it difficult to undersntand. Experience suggests that in Caldwell the law took the wrong turn.
Property offences are now subjective.
Four reasons for restoring the subjective test
- As a matter of principle, conviction of a serious crime should depend on proof that D had a culpable state of mind. It was not clearly blameworthy if the D did not genuinely perceive the risk.
- The Caldwell test was capable of leading to 'obvious unfairness.' It was neither moral not just to convict any D, but least of all a child, on the strength of what someone else would have appreciated.
- There was significant judicial and academic criticism of Caldwell and the cases that followed.
- The decision in Caldwell was a misinterpretation of P'ment's intention. This could be left to P'ment to correct, but as the mistake was "offensive to principle and was apt to cause injustice" the courts felt compelled to correct it.
Bingham also observed that there were no compelling public policy reasons for persisting with Caldwell. The law prior to 1981 revealed no miscarriages of justice with G Ds being acquitted.
There is also supreme irony to this as on the facts of Caldwell itself, D would have been found G without any need for the objective test at all.
D had been very drunk when he started the fire and tried to argue that his intoxication prevented him from foreseeing the consequences of his actions. However, HL had already dealt with this problem 4 years earlier.
When D is intoxicated and carries out the AR of a crime the MR is satisfied through reckless drinking.
The Law Commission will welcome the development in R v G and another 2003 as both the Draft Criminal Code 1989 and Draft Criminal Law 1993 defined recklessness in a subjective sense. Under these reform proposals, Ds must always be aware of the risk in order to satisfy this test of recklessness. In addition, their conduct must have been unreasonable.
General application of the law on recklessness:
Whilst the law regarding recklessness is now completely subjective, it appears that Cunningham 1957 is still the authority for 'people' offences and R v G and another 2003 the authority for 'property' offences.
Recklessness is divided on precedent between people and property.