Recklessness

Question 1

Recklessness definition?

Answer 1

Taking of an unjustifiable risk

Question 2

Types of recklessness?

Answer 2

Subjective test: conscious taking of risk known to accused
Objective test: conscious taking of risk accused ought to have known

Question 3

Recklessness English case law: subjective test?

Answer 3

Traditionally favoured
R v Cunningham (fractured gas pipe)
🔑 held A must have either intended harm or foreseen potential harm to be considered reckless
Prof GW: A cannot close mind to risk unless first realises risk, if risk is realised that is the end of the matter

Question 4

Recklessness English case law: Shift from Subjective test?

Answer 4

R v Caldwell 1982 (set fire to hotel, intoxicated)
🔑 whether he was reckless endangering life
Held reckless as risk obvious to RM
Diplock: person reckless if creates obvious risk & not considered risk or have & proceeded anyway

Question 5

Caldwell criticism?

Answer 5

John smith: approach doesn’t consider A’s SOM, determining obvious risk depends on RM. A’s thoughts irrelevant unless show to consider risk & wrongly decided there wasn’t one which is rare. No need to direct jury
Applied in R v Lawrence 1981
🔑 Hol added serious to obvious risk

Question 6

Harshness of Caldwell?

Answer 6

Ryan hilights Elliot v C 1983 (retard, burned down shed)
COA held lack of understanding not a defence

Question 7

Caldwell abandonment?

Answer 7

R V G 2003 ( newspaper fire)
Convicted under Caldwell st trial, COA dismissed but HOL quashed
🔑 questioned if A could be convicted based on age / characteristics
HOL corrected Caldwell due to injustice & offended jurys sense of fairness

Question 8

Recklessness in Ireland?

Answer 8

Caldwell little impact due to Murray 1977
Couple participate in armed robbery, Marie killed guard
Convicted of capital murder which required determining if they knew victim was guard

Question 9

Problems with Murray?

Answer 9

Judgements suggest test specific to capital murder only
Walsh: insisted on knowledge defining subjective / objective recklessness - judgment suggests flexibility
Henchy: subjective, highlighting conscious disregard for risk
Kenny: stressed specific intent, no evidence supporting recklessness

Question 10

Irish Caselaw recklessness?

Answer 10

SC in Cagney & McGrath 2008 affirmed subjective standard in Murray (nightclub altercation)
🔑Clarified recklessness in endagerment required foreseeing substantial risk of death & consciously disregarding it
Clifford v DPP 2008 affirmed subjective recklessness standard in Ireland
Charlton: distinguished reckless from negligence, accused must consciously forsee consequences yet proceed regardless

Question 11

Recklessness: Knowledge?

Answer 11

To act knowingly equivalent to acting intentionally
Hanlon v Fleming 1981 (receiving stolen goods)
🔑 Recklessness about goods stolen insufficient
AG v Berber 1944
🔑 knowledge can be inferred in circumstances that would convince RM goods were stolen

Question 12

Recklessness: coincidence of actus reus & men’s Rea?

Answer 12

Principle of alignment has exceptions ( eg continuing act)
Fagsb v Met PC 1968 held men’s Rea could be added to ongoing act
Thabo Meli v R 1954: actions forming single plan not separable for men’s Rea consideration
R v Le Brun 1991: where subsequent event lead to death, COA rejected they were separate incidents. Where events connected, liability persists