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Published: Fri, 02 Feb 2018
Provide a critical evaluation of the current definition of reckless
Recklessness is a problematic area of the criminal law, since there is no strict definition of what constitutes it. Statutes make provision for the presence of recklessness, but have yet to define it strictly, thus it falls on the hands of the judges to interpret what is meant by recklessness. It is therefore most easily delineated via case law.
Judges have had to rely on “explanations in important case reports” in order to decide what amounts to recklessness. This has meant delving through colossal number recklessness cases in order to find out whether the case in question falls within the confines set out there. Realising this is challenging, the Law Commission have sought to remedy the situation, by releasing several working papers on the issue. One of them gives the following explanation:
“a person acts recklessly [if] he is aware of a risk that…exists or will exist [or] …when he is aware of risk that…will occur and it is, in the circumstances known to him, unreasonable to take the risk.  “
This assignment will start by putting forward a concise history of intent in recklessness. The development of the law in this area will be looked out with the aid of case law such as Cunningham  Caldwell  and RvG . This paper will provide an evaluation of the current definition of recklessness within criminal law.
In order to identify and understand the concept of recklessness, intention needs to be discussed. The 19th century criminal legislation required that defendants had to have acted `maliciously’ and `unlawfully’ when committing an offence. The accused will act unlawfully if he fails to present a lawful reason for his act, he would be considered acting maliciously once he satisfies the level of Mens Rea required for the Actus Reus.
The word `malicious’ introduces the requirement of Mens Rea. The statutory definition of `malice’ is, requiring an actual intention to do a particular kind of harm that in fact was done, or reckless as to whether such harm should occur or not. The accused has foreseen that particular harm might be done, and has gone on to take the risk. The word `maliciously’ means in relation to the law of England and Wales `an intent or recklessness’  .
Intention is the highest level of Mens Rea. Mens Rea means `guilty mind’ in Latin.
Intension differs from recklessness; intention commands a severe penalty within the criminal justice system, morally intent is considered objectionable, adjacent to recklessness.
Recklessness was first used within criminal statute with conjunction to the Motorcar Act 1903. Professor C S Kenny‘s opinion of recklessness required actual awareness by the defendant of the likelihood of the particular harm. Kenny considered it an element additional to awareness of risk, indifference whether the foreseen harm occurred or not. Another view is that an individual is reckless if he takes a known risk, even if he ardently trusts the foreseen harm, will not occur  .
In 1957 the case of Cunningham transformed the interpretation of Recklessness. In R v Cunningham D broke a gas meter to steal the money contained within the meter. Gas seeped from the broken pipe and into the house next door, where D’s mother-in- law was sleeping. The mother-in-law became so ill, that her life was endangered. D was convicted of ‘unlawfully and maliciously’ administering a noxious thing as to endanger life or inflict grievous bodily harm under S.23 of the Offences Against the Person Act 1861. Cunningham’s conviction was quashed because of misdirection of the trial judge as to the meaning of maliciously.
The Court of Appeal held that malice must not be taken as to mean ‘wickedness’, but as requiring either (1) an intention to do the particular harm that was done, or (2) reckless as to whether such harm should occur or not  .
Recklessness in this sense means – foreseeing that harm might occur, and going ahead with the act anyway. This is called a subjective test, i.e. the accused is reckless if he realised there was a risk of gas escaping and endangering someone, and went ahead with his action anyway. Prof. Kenny wrote in his first edition of `outlines criminal law’ that, intent or recklessness had to be proved, as mentioned previously, he also stated that ` it neither limited to, nor does it indeed require any ill-will towards the person injured’  .
For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk, he must realise that there is a risk involved. However, if he continues to carry on with his conduct, he is then reckless. The case defined a type of recklessness that the knowledge of appreciation of the risk of some danger must have entered the defendants mind even, though he may have suppressed or driven it out  .
Cunningham is considered the first limb of recklessness the second limb arises from the case of MPC v Caldwell (1982).
The second test of Recklessness, Caldwell created a new and wider test. D was an ex-employee of a hotel and held a grudge against its owner. He started a fire at the hotel, which caused some damage D was charged with arson. The old Cunningham test of recognising there’s a risk and going ahead anyway, was extended to include a second limb; namely that the D does an act which creates an obvious risk and, has not given any thought as to the possibility of there being such a risk  .
The Caldwell test for recklessness is objective, i.e. the risk must be obvious to the reasonable man, in that any reasonable man would have realised it if he had thought about it. Although, it need not be obvious to the defendant: Elliott v C  and R v Coles .
Lord Diplock stated that the definition of recklessness in Cunningham was too narrow for the Criminal Damage Act 1971, recklessness, should not only include the Cunningham meaning. Lord Diplock stated that a person is reckless as to whether any property would be destroyed or damaged if; he does an act, which in fact creates an obvious risk that property would be destroyed, or damaged. Additionally when the act is committed he has not given any thought to the possibility of there being any such risk, alternatively, he has recognised that there was some risk involved and has nonetheless gone on to do it  .
Hence, for Caldwell recklessness to be satisfied, D does not have to foresee a risk, nevertheless takes a risk that would have been obvious to a reasonable prudent man.
The It was deemed that after Caldwell whenever the term ‘reckless’ was involved, an objective approach would be applied to the case. However this changed with the decision in RvG, as a subjective test was applied, instead of an objective test. It was deemed that a subjective test would be applied because the Caldwell test was seen to be “a model direction which contained inconsistencies and lacked precision”  . The RvG case reinstated the subjective test from R v Cunningham  (Cunningham) and clarified the law on recklessness by overruling the objective test in Caldwell.
Additionally one can note that from RvG, this subjective definition of recklessness would be applicable in all statutory offences of recklessness and not the definition which was illustrated in the Cunningham case. The House of Lords decision in RvG enforcing this definition of reckless, illustrated a significant impact by eradicating the definition of recklessness in Cunningham. One can note that this impact of the decision conveyed the problems with the definition of recklessness under Cunningham. For example, within the Cunningham definition, the test only refers to taking risks as a result and makes no mention of taking risks as to a circumstance. However the law commission draft criminal code adds an additional restriction on finding the term reckless. Additionally, under the draft criminal code there is the additional requirement of the awareness of the risk and that the actual damage caused might occur. Thus the reformed definition of subjective recklessness conveys a more accurate and broad scope of the meaning of recklessness, compared to the Cunningham definition of subjective recklessness.
As a result of this reform, a subjective approach will be incorporated when assessing the term recklessness. Consequently it can be seen that the “House of Lords in G and another did in fact adopt the better test in terms of policy and principle. Also English law has progressed to the point where there is, almost certainly, now only one test of recklessness”  which is of a subjective nature.
Additionally from the Cunningham case, the expression ‘Maliciously’ was replaced with the expression ‘reckless’ in RvG by ‘Lord Bingham’ in the House of Lords. ‘Maliciously’ was an expression which was formerly recognisable within the House of Lords. This proposal was changed because the term ‘maliciously’ was seen to be too narrow and with limited scope. However, the expression ‘reckless’ is considered to have a wider capacity for interpretation. Therefore this modification of expressions portrays a positive impact of the decision of the House of Lords in RvG.
The reasonable adult was an issue raised in RvG from the objective approach in the Caldwell test. The issue of a reasonable adult was challenged in a previous case known as Elliott v C  . This case highlighted the negative aspects of objective recklessness as the person in question was fourteen years of age with learning difficulties. Evidently the risk must be obvious to the reasonably prudent person, and not necessarily obvious to the defendant. Therefore this conveys the problems within the Caldwell test as it does not cover everything, including individual characteristics. In this case the fourteen year old girl was guilty of criminal damage as she failed to consider the risk which would have been obvious to a reasonable person.
In Hardie,  which came after Elliott v C, contradicted the judgement of the latter. Hardie became intoxicated after taking valium, believing them not to be dangerous. While under this influence, he set fire to his ex-girlfriend’s house, with her in it. Originally convicted, Hardie appealed and his conviction was quashed on the grounds that in itself, the taking of valium was not reckless. This is contradictory because his actual mental state was considered, which was not the case in Elliott v C.
Subsequently this issue was raised in RvG, where within the trial, ‘Lord Diplock’s’ direction in Caldwell was used and disagreement occurred as the issue of the reasonable adult was accepted in being aimed at the children of ages eleven and twelve. From this trial, the case went onto the House of Lords, which unanimously answered the conflict of this question.
The impact of the House of Lords decision in RvG illustrated great criticisms on the Caldwell test, in where it was noted that the Caldwell case was “based on fragile foundations because the law commission report was not referred to”  and subsequently was referred to in RvG. Additionally this impact of criticism upon Caldwell was heavily enforced by other law lords, for instance, ‘Lord Hutton’ illustrated his criticism nature by expressing “Experience suggest that in Caldwell in law took a wrong turn”  and agreeing with ‘Lord Bingham’. Therefore conveying Lord Diplock’s decision in the Caldwell case was incorrect. Furthermore ‘Lord Diplock’s’ decision in the Caldwell case has been criticised by many academics who have described the decision to be “Pathetically inadequate, slap happy and profoundly regrettable”  . Therefore the decision in the House of Lords in RvG illustrated these criticisms by rejecting the Caldwell recklessness approach.
On the other hand, one can note that the decision in RvG in the House of Lords has had significant criticism on the basis of the outcome of the case. Academics have criticised RvG that the decision of the case should have been different. For example, ‘Professor Keating’ criticised the decision of RvG by where in his investigation, he revealed “69% of members of the public do regard behaviour such as that of the boys as criminally blameworthy  ” thus illustrating that the boys between ages eleven and twelve in RvG were old enough to appreciate the risks involved.
Additionally, the House of Lords decision in RvG has conveyed an impact of a criticising nature. It can be seen that as a result of RvG, there are critics that illustrate that it will be too easy for a defendant to state that they have not considered a risk to others and therefore may by acquitted at their case. On the contrary, the House of Lords have reasserted the subjective test instead of the objective test seen in Caldwell and have also established that if the defendant is voluntary intoxicated, they can be convicted without the awareness of the risk present. In the RvG case, the House of Lords conveyed this to be seen as a ‘special exception’ in accordance with crimes concerning intoxicated individuals. Evidently this conveys how the House of Lords in RvG took into account of refining the Caldwell test due it being unfair, and achieving justice by taking into consideration, individual characteristics which weren’t present before in the Caldwell test.
As mentioned above, one can note that the House of Lords decision in RvG illustrated criticism thus conveying a negative impact of the case. This can be seen as the RvG case only overrules the objective test in criminal damage, therefore the Caldwell test still applies today in certain cases after RvG, this can be seen in R v Castle (Mark Anthony)  , in where both the RvG and Caldwell tests were applied. Additionally ‘Simester and Sullivan’, both academics argue that “Caldwell reckless could still be applied in some offences”  , an example in where Caldwell has been applied can be seen by the “Data Protection Act 1998″  .
Alternatively, one can suggest that there has been a positive impact of the House of Lords decision in RvG. This can be conveyed by where the courts no longer have to distinguish what type of recklessness has to be applied and the House of Lords in RvG has illustrated that the subjective one will be upheld in future cases concerning recklessness. Therefore this has allowed the courts to scrutinize the expression reckless more easily than seen in cases before RvG. An illustration of this can be seen in Eliot v C as noted above.
In addition one can note that RvG case has ruled out a clear distinction between negligence and recklessness. It can be illustrated by previous cases that before the decision in RvG, there was not a clear distinction between both concepts. An example of a case is Chief Constable of Avon v Shimmen  . Within this case, it was deemed that a person who stops to think will still be liable if he realised there was some risk. Therefore this case illustrates that the Caldwell test made individuals guilty who previously were not guilty due to them being careless, but now after RvG are reckless.
Overall, one must appreciate the House of Lords decision in RvG, which has allowed a subjective test to be reasserted when referring to recklessness and introduced a reformed definition of subjective recklessness. Additionally the decision has allowed a clear distinction to be applied when assessing negligence and recklessness cases. Moreover, the Caldwell test has been overruled in relation to criminal damage. Furthermore it can be identified above that there are both positive and negative impacts which have departed from the RvG decision in the House of Lords.
Having analysed all of the above facts and cases, it is clear that the law on recklessness has been problematic, and often contradictory in the past. However the case of RvG has gone somewhat to remedy this issue and can be said to have succeeded in many respects. But there is still room for a statutory reform even though it may be vastly difficult to make statutory provision for all potential problems within recklessness. However, in the long run, statutory definitions of all that constitutes recklessness, and explanations of issues surrounding the topic, would be most useful, and save the judiciary time and money.
Booth v Crown Prosecution Service (2006)
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