Concept of 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
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
Bibliography: Smith & Hogan, Criminal law cases and materials, 8th Edition, 2002. J. Martin and C. Turner, Criminal Law key Facts, 2nd Edition, 2004. N. Padfield, Core Text series, Criminal law, 4th Edition, 2004 Articles: L. H. Leigh, Recklessness after Reid, (1993) 56 MLR 208. S. Field & M. Lynne, Capacity, recklessness and the House of Lords, (1993) Crim LR M M. Jefferson, Recklessness: The objectivity of the Caldwell Test, (1999) 63 JCL 57 J D. W. Elliot, Endangering Life by Destroying or Damaging Property, (1997) Crim LR 382 C. Elliot, House of Lords – Recklessness: Caldwell Test Abolished, (2004) JoCL 68(31) K Prof D. C. Ormerod, Arson, (2004) Crim LR N