Mens Rea: Recklessness
Recklessness, which is a type of mens rea.
Terms in this set (18)
What is recklessness?
This is a lower level of mens rea than intention. Recklessness is where the defendant knows there is a risk of the consequence happening but takes that risk. The explanation of recklessness comes from the case of Cunningham (1957).
What happened in the case of Cunningham (1957)?
The defendant tore a gas meter from the wall of an empty house in order to steal the money in it. This caused gas to seep into the house next-door, where a woman was affected by it. Cunningham was charged with with an offence under S23 of the Offences Against the Person Act 1861, of maliciously administering a noxious thing. It was held that he was not guilty since he did not realise the risk of gas escaping into the next-door house. He had not intended to cause the harm, nor had he taken a risk he knew about.
What was the result of Cunningham (1957)?
The offence involved in Cunningham (1957) uses the word 'maliciously' to indicate the mens rea required. The court held that this word meant that to have the necessary mens rea the defendant must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk. Knowing about a risk and taking it can also be referred to as 'subjective recklessness'. It is subjective because the defendant himself realised the risk.
The case of Savage (1992) confirmed that the same principle applies to all offences where the definition in an Act of Parliament uses the word 'maliciously'. The Law Lords said that 'maliciously' was a term of legal art. In other words, it has a special meaning when used in an Act of Parliament, not its normal dictionary definition. It means doing something intentionally or being subjectively reckless about the risk involved.
What is the relationship between intention and recklessness?
Do not forget that if the defendant has the higher level of intention he will, of course, be guilty. For example, if the defendant intends to punch a victim in the face, that defendant has the higher level of intention and is guilty of a battery. It is only when the defendant does not have the higher level that recklessness has to be considered.
What offences require recklessness to be considered?
Offences for which recklessness is sufficient for the mens rea include:
1) assault and battery.
2) assault occasioning actual bodily harm (S47 of the Offences Against the Person Act 1861).
3) malicious wounding (S20 of the Offences Against the Person Act 1861).
4) criminal damage.
What problems have there been with the law of recklessness?
There used to be two levels of recklessness. These were:
1) subjective, where the defendant realised the risk, but decided to take it.
2) objective, where an ordinary prudent person would have realised the risk: the defendant was guilty even if he did not realise the risk.
The first type of recklessness is the only recklessness that the law now recognises as being sufficient to prove a defendant guilty where recklessness is sufficient to make the defendant guilty. However, during a period from 1982 to 2003, it was accepted that a defendant could be guilty of certain offences even though he had not realised there was a risk. This was decided in the case of Metropolitan Police Commissioner v. Caldwell (1981).
What happened in the case of Metropolitan Police Commissioner v. Caldwell (1981)?
The defendant had a grievance against the owner of a hotel. He got very drunk and decided to set fire to the hotel. The fire was put out quickly, without serious damage to the hotel. The defendant was charged with arson under S1(2) of the Criminal Damage Act 1971. This requires that the defendant intended endangerment to life or was reckless as to whether life was endangered. The defendant claimed that he was so drunk he had not realised people's lives might be endangered. His conviction was upheld.
What was the result of Metropolitan Police Commissioner v. Caldwell (1981)?
In Caldwell (1981) the House of Lords held that recklessness covered two situations. The first is where the defendant had realised the risk, and the second is where the defendant had not thought about the possibility of any risk.
What problems arose from the second meaning?
This second meaning of 'reckless' caused problems in cases where the defendant was not capable of appreciating the risk involved in his conduct, even though a reasonable person would have realised there was a risk. This occurred in Elliott v. C (1983) where the defendant was a 14-year-old girl with learning difficulties. She did not appreciate the risk that her act might set a shed on fire. But she was found guilty because ordinary adults would have realised the risk.
This seemed very unfair. The girl was not blameworthy. If she had been judged by the standard of a 14-year-old girl with learning difficulties then she would not have been convicted. It was absurd to judge her against the standard of ordinary adults. This problem was eventually resolved when the House of Lords overruled Caldwell (1981) in the case of G and another (2003).
What happened in the case of G and another (2003)?
The defendants were two boys, aged 11 and 12 years, who set fire to some bundles of newspapers in a shop yard. They threw them under a large wheelie bin and left. They thought that the fire would go out by itself. In fact, the bin caught fire and this spread to the shop and other buildings, causing about £1 million worth of damage. The judge directed the jury that they had to decide whether ordinary adults would have realised the risk. The boys were convicted under both S1 and S3 of the Criminal Damage Act 1971. On appeal, the House of Lords quashed their conviction.
What was the result of G and another (2003)?
The House of Lords held that a defendant could not be guilty unless he had realised the risk and decided to take it. The House of Lords overruled the decision in Caldwell (1981), holding that in that case the Law Lords had adopted an interpretation of S1 of the Criminal Damage Act 1971 which was, "beyond the range of feasible meanings".
In G and another the House of Lords approved of the definition of recklessness set out in the draft Criminal Code which states 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 that risk."
What about the reasons for the defendant taking the risk?
The reasons for the defendant taking the risk are not relevant. It does not matter whether it was done because the defendant was in a temper or he chose to disregard the risk or simply did not care about the risk.
The important point is that the defendant must be aware of the risk. This is the subjective aspect of recklessness.
To what areas of law does recklessness apply?
Initially it was thought that this decision in G and another (2003) only affected the law in relation to criminal damage. However, the G and another version of recklessness has since been applied by the Court of Appeal to other areas of law. For example, they applied the subjective recklessness test in the case of Attorney-General's Reference (No 3 of 2003) (2004). This case was about a very different area of law as it involved the common law offence of wilful misconduct in a public office.
So now the law is clear. Where recklessness is sufficient for the mens rea of an offence, it must be subjective recklessness. The prosecution must prove that the defendant realised the risk and decided to take it.
How does recklessness relate to manslaughter?
An area in which subjective recklessness has been re-established is involuntary manslaughter. Following its decision in Caldwell (1981) there was a brief period when it was held that both subjective and objective recklessness applied to manslaughter.
Why was this a problem?
Objective recklessness was a very harsh test to apply in the case of such a serious offence. This had the effect that a person could be guilty of manslaughter when they had not personally foreseen any risk at all. In addition, the risk which needed to be foreseen by a reasonable person was only the risk of some jury.
The law was re-stated in 1994 in the case of Adomako (1994). This case re-introduced a test of gross negligence for manslaughter, rather than recklessness in any form. Following Adomako (1994) it was initially thought that recklessness was no longer relevant in the case of manslaughter.
What is the law in relation to reckless and manslaughter now?
However, in the case of Lidar (2000) the Court of Appeal affirmed that involuntary manslaughter could still be based on subjective recklessness.
What happened in the case of Lidar (2000)?
The defendant and others had been asked to leave a public house in Leicester. They went into the pub car park and got into a Range Rover with defendant as the driver. One of the passengers shouted something at the victim, who was the doorman of the pub. The victim approached the vehicle and put his arms through the open front passenger window. The defendant then drove off, with the victim half in and half out of the window. After about 225 metres, the victim was dragged under the rear wheel of the Range Rover and suffered injuries from which he died. The defendant was convicted of manslaughter.
What was the result of Lidar (2000?
To prove manslaughter, it must be shown that the defendant foresaw there was a highly probable risk of serious injury (or death) to the victim. This test of a highly probably risk is different to the test for risk-taking in relation to other offences for which recklessness is sufficient for the mens rea. For other offences the level of risk needed to be foreseen by the defendant is only that there is a possible risk of the consequence or circumstance occurring.
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