Recklessness

The word recklessness in everyday language conveys the idea of taking an unjustifiable risk. Within the law, recklessness has acquired two definitive meanings, which are individually known as subjective and objective recklessness. The basis for recklessness in criminal law is derived from the fundamental maxim, 'acteus non facit neum nisi mens sit rea', to the nearest effect, a man cannot be guilty on the basis of his actions alone; he must also have a guilty mind.

The initial approach to recklessness became known as subjective recklessness which acquired its authority from the case of R v Cunningham , whereby recklessness is regarded as a subjective state of mind of the accused. The definition of subjective recklessness involves two stages;

i. Foreseeing that the particular kind of harm might be done,

ii. Yet going on to take the unjustified risk of it

This test was also confirmed in Briggs , Parker and Stephenson , in the latter case the defendant's schizophrenia was used to prove that he was not capable at that time of appreciating any risk, and so the defendant failed to meet the Cunningham test, consequently the conviction of criminal damage was quashed. During the life of this test the cases proved this direction to be agreeable and undisputed.

However in 1982 the definition of recklessness was revised and broadened by Lord Diplock in Metropolitan Police Commissioner v Caldwell . This new test of recklessness became known as objective recklessness, as such it regarded recklessness as an objective state of mind. Lord Diplock related that 'reckless' should not be 'given an artificially narrow legal meaning' but it's meaning in 'ordinary speech' thus D is reckless where;

i. "He does an act which in fact creates an obvious risk that property would be destroyed or damaged and

ii. When he does the act he either has not given any thought to the possibility of there being any risk or has recognised that there was some risk involved and has nonetheless gone on to do it."

This new definition extended mens rea to include inadvertent risk taking.

In 2003, Lord Diplock's objective definition was overruled in the case of R v G and R . Where Lord Bingham in his speech gave recklessness its definition, which was contained in the draft Criminal Code Bill, clause 18 (c) that a person acts recklessly with respect to

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,

And it is in the circumstances known to him, unreasonable to take the risk"

The question at hand concerns the appropriateness of the legal ruling in R v G relating to the test of recklessness, in light of the fact that the accused is no longer culpable for inadvertent risk taking. It has been expressed that the new subjective test it to be regretted as it does not cater for offences caused by inadvertence. Moreover a wider inherent implication of this school of thought which needs to be addressed is whether it is also to be regretted that a defendant cannot be convicted of inadvertence, in the case where the risk would not have been obvious to him or her had they considered it that beforehand. The evidential and judicial support from the development of cases relating to recklessness will guide us to answering whether the test is to be regretted or not.

Contrary to the proposed supposition in the question, it is vital to establish some of the concerns which have come to light regarding objective recklessness. We can see that in the case of Elliot , it is clear that the objective test discriminated against persons who didn't reach the standards of a reasonable person. As the possibility of the risk had only to be obvious to the reasonable person. Thus a person, who had no capacity to consider the risk due to being retarded, was found guilty for possessing this mental incapacity which prevented them from appreciating the risk, even though they have no control over this deficiency. Goff LJ's opinion was of particular significance and influence, as he admitted that the defendants conduct was not reckless in the ordinary sense, but felt inhibited by the decisions of the House in Caldwell, Lawrence and Miller to agree, "I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach"

Smith and Hogan also comment on this, "Caldwell, as interpreted in Elliot v C and R, appears to be a slippery slope to intolerable justice with no obvious exit"

We can also see that in the later case of Stephen there is a clear attempt at taming the harshness of the Caldwell test, when the defence submitted that the jury should take into consideration the defendants age and characteristics and compare him with someone with same features as to come to a conclusion as to whether he could have appreciated the risk and is therefore culpable. The Court of Appeal recognised the attractiveness of such a suggestion but instead they passed judgment based on the distorted view that they must hold true to Caldwell precedence even in the face of clear injustice which they admitted could result.

Moreover when we look at the decision in Hardie we are confronted with a ruling that is in all senses "incongruous" as it seems that a person who is responsible for his or her own inability to appreciate an obvious risk is more sympathetically treated than a mentally retarded person who has had no involvement in their incapacity to recognise obvious risks. This seems to have created grossly unethical double standards.

However the case of Reid was suggested to be the "key sign post " for requiring a change to a more ethical subjective test. The House of Lords seemed to appreciate the relevance of the defendants personal capacity especially Lord Keith and Goff who implied that inadvertence to obvious and serious risks due to "diminished capacity" may not be Caldwell reckless. Lord Keith went further to suggest that Lord Diplock's formula may have to be altered where capacity to appreciate risk is adversely affected due to no fault of the accused. This uneasy feeling regarding objective recklessness was an attempt to change the current law on recklessness. Lord Ackner however rejected the amendments.

Furthermore it has also been contended that applying the objective test formula may result