Mens Rea - Recklessness

Question 1

Subjective recklessness (1)

Answer 1

• R v Cunningham
  o The accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it
  o D taking money from gas meter. Damages the gas meter when doing so and gas escapes into nearby flat. Charged with maliciously administering a noxious thing. Courts made clear that recklessness is subjectively assessed. The D must have known the risk when taking these actions

Question 2

Criticisms of Cunningham subjective recklessness (2)

Answer 2

• Parker
  o Parker in phone booth and in fit of anger, smashes handpiece onto phone itself, damaging it. Parker claims that the thought of damaging the phone never occurred to him due to his moment of anger.
  o Court decided that you are reckless if – you carry out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from the act but nevertheless continuing in the performance of that act. Parker must have subconsciously known the risk and he chose to close his mind from the risk
  o Courts were criticised that this stretched the Cunningham recklessness to its limits – nearing an objective approach
• Stephenson
  o D young teenager. Snuggled down in bail of hay, got cold and lit fire to keep warm. Hay catches fire and damage is done. Charged with arson. D found guilty of arson as had closed mind to obvious risk of fire. CofA quashes conviction as evidence is given that D suffers from schizophrenia – therefore risk of fire was not obvious to the D
  o Concern that Cunningham test was too narrow

Question 3

Objective recklessness (1)

Answer 3

• R v Caldwell
  o D working at hotel and has fight with employer. Gets drunk and sets fire to hotel. Fire discovered early and little damage done and nobody injured. Charged with recklessly destroying property. Pleads guilty. Charged with recklessly endangering life also and carries maximum punishment of life imprisonment. D argues that thought of people getting hurt never occurred to him. Court says drunkenness is no excuse – gives new test for recklessness
  o A person is reckless if:
  1. He does an act which creates an obvious risk
  2. And when he does the act he either gives no thought to the possibility of there being a risk or sees the risk but takes it
  o Objective approach – no thought of the risk

Question 3

Criticisms of Caldwell objective recklessness (1)

Answer 3

• To whom must the risk be obvious when applying the Caldwell test?
• Elliot v C
  o 14 year old girl of limited intelligence. Out all night without sleep and entered someone’s garden shed. Found white spirits as cold and poured on ground and started fire to keep warm. Shed set alight and was charged with arson. Due to age, lack of understanding, lack of experience and exhaustion – the risk of destroying the shed would not have been obvious to her even if she had stopped to think about it.
  o Trial court concluded that she was not reckless – interpreted Caldwell case of obvious risk as must be obvious to the defendant
  o CofA rejected this – D was reckless if the risk would have been obvious to a reasonably prudent person, once t has been proved that the particular D gave no thought to possibility of suck a risk. Limited intelligence or exhaustion not a defence
• When was Cunningham recklessness to be applied; and when was Caldwell to be applied? – confusion

Question 4

Objective recklessness rejected (1)

Answer 4

• R v G and Another
  o 2 young boys snuck out one night and decided to camp in yard at back of shop. Set newspaper on fire and pushed it under bins. Bins set fire and spread to shop and neighbouring houses causing over 1 million pounds of damage. If applying Caldwell, it would not matter if the boys thought about the risk, they would be charged with arson. Instead they decided the law should change
  o Conviction of serious crime should depend on proof not simply that D caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable
  1. It is not blameworthy to do something involving a risk of injury to another if (for reasons other than self-intoxication) one genuinely does not perceive the risk
  2. The Caldwell approach is capable of leading to obvious unfairness (e.g. Elliott)
  3. Criticism of Caldwell expressed by academics, judges etc should not be ignored
  4. Law applied in Caldwell was misinterpreted – malicious was replaced with intention and recklessness – instead it was supposed to be subjective recklessness
  o R v G test for recklessness:
  ‘A person acts recklessly within the meaning of s1 of 1971 Act with respect to
  (i) a circumstance when he is aware of the 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’

Question 5

Caldwell post R v G (2)

Answer 5

• AG’s Reference (No. 3 of 2003)
  o A defendant could not be culpable under the criminal law of doing something involving a risk of injury to another or damage to property if he genuinely did not perceive a risk
• R v Brady
  o D at nightclub, intoxicated, climbs onto railing and falls onto dancefloor landing on person causing serious injury. Argued that had to be aware of serious risk of injury and make it to be reckless – however court disagreed saying that only had to prove that you saw a risk – whether small or large and if taken risk, you are reckless

Question 6

Alternative ways of approaching recklessness (3)

Answer 6

• Field & Lynn, Glanville Williams – Capacity for recklessness test?
  o A defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to him if he had given any thought to the matter
• Duff – Practical Indifference
  o Did the agent’s conduct (including any conscious risk-taking, any failure to notice an obvious risk created by her action, and any unreasonable belief on which she acted) display a seriously culpable practical indifference to the interests which her action in fact threatened.
• Tadros – Insufficient regard for the interest of others test
  o An agent will be reckless if the following conditions are fulfilled: (a) the action was of a kind that might carry risks with it according to the beliefs of the individual and either (b) given those beliefs the agent failed to fulfil his duty of investigating the risks or (c) the agent wilfully blinded himself to the existence of the risks.

Question 7

Critical commentary of mens rea recklessness (2)

Answer 7

• Amirthalingam
  o Intoxication is not the only instance when inadvertence may be culpable – it is broader and simply a person is culpable when a person ought to have adverted
  o There should be certain minimum duties of citizenship and every individual should have a responsibility to advert to relevant risks when actively engaging in certain conduct – failure means culpability
  o Focus for test should remain on the accused and question is simply whether his/her mind should have been attuned to the risk – in R v G the young children were not attuned to the risk – if they had been two drunk it would have been unlikely this would have overturned Caldwell
  o Court should distinguish between those who act out of stupidity/lack of imagination and those who act outside the bounds of what is human and decent people regard as tolerable
• Crosby
  o An overly subjective approach can allow those who are blameworthy to avoid criminal liability
  o An overly objective approach can lead to injustice without being capacity based
  o Synthesis of these two approaches is required – either by developing a capacity based test or introducing practical indifference test