Recklessness Flashcards
R v Cunningham
The crown against Cunningham, the defendant wanted to break into a gas meter just like in the picture. The reason he broke into it is that the gas meter was coin fed. People would put money in it, turn the lever, and get gas. When the gas ran out, they would have to put more money in, and they would get more gas.
This gas meter contained money which Cunningham wanted to steal. He tried to break into the gas meter in order to get the money. In doing that he severed the gas pipe and the gas leaked through into the adjoining premises, and it caused harm to somebody who was living in the adjoining area. He was` charged with maliciously administering a noxious thing with the intent to endanger life.
If we go back to direct intent, this corresponds with somebody’s objective. Did Cunningham want to administer gas to somebody to harm them? No. He had no idea that this was going to happen. He only wanted steal money from the meter.
They are going to base his liability then on something other than his direct intention or purpose.
The statute in question is an old statute from 1861 - Offences Against the Person Act 1861 — which is a statute that we look at in semester two. The mens rea that it specified for this offense is malice – maliciousness. In this case, given that the defendant said he wasn’t being malicious, there was no malice here because he didn’t give any thought to gas harming anyone, the Court of Appeal had to define what malice meant.
The trial judge defined malice as wickedness. He said you will find the defendant guilty if the defendant did something he knew he had no business doing. Fine. Did he know he wasn’t supposed to break into a gas meter? Yes he did. Does that encapsulate what is wrong with the offence – administering a noxious thing with intent to endanger life – no it doesn’t. So the Court of Appeal quashed his conviction and gave was the leading ruling on the definition of recklessness for quite some time.
R v Stevenson
A man sheltered in a haystack because it was quite cold. He started a fire to keep warm; the haystack set fire. Can we all see if you start a fire in something as flammable as a haystack there is a risk that it will catch fire and be destroyed? Yes.
Stephenson said that he did not foresee this. Because we are looking at an offense here that has this subjective mens rea to it, it is not what we would’ve foreseen, but what he would have foreseen. so if he says that he had no idea that the haystack would catch fire, and that is what he is saying – he is not reckless because he didn’t foresee the risk. The subjective states of risk are about “me”. Because it is subjective, it is based on the defendants own state of mind if he didn’t know or think the thing he needed to know or think in order to complete the offense, then he cannot be liable, and that is exactly what happened in Stephenson.
Now, the defendant in this case was suffering from a mental ailment; he was schizophrenic. He argued that because he didn’t have the state of mind that a normal person has, he didn’t see things that ordinary people saw. So when he sheltered in a haystack and try to light a fire, it didn’t occur to him that the property would be destroyed and that he should be liable. The Court of Appeal confirmed that that was the correct approach.
At first instance, Stephenson was convicted because the trial judge said it is no good to say that you didn’t perceive risk that the haystack would catch fire – it was obvious.
The Court of Appeals said the appellant through no fault of his own was in a mental condition which might have prevented him from appreciating the risk would be obvious to any normal person.
The schizophrenia was on the evidence something that might have prevented the idea of danger entering the appellant’s mind. if that is the truth of the matter, then the appellant is entitled to be acquitted.
Metropolitan Police Commissioner (MPC) v Caldwell 1982
The defendant set fire to a hotel, and it was reasonably well established that he did this deliberately.
Because it was a large hotel, he set fire to it at night when there a lot of people in it. He wasn’t just charged with arson, he was charged with a more serious offence – arson with the intent to endanger life, or being reckless as to whether life was endangered.
it was accepted that he didn’t intend to endanger anybody’s life. The issue was whether or not was whether he was reckless as to whether life was endangered.
His argument was “I was just really drunk, and I didn’t think about it.”
If the test of recklessness is the subjective test, then he is entitled to be acquitted. He didn’t first see the risk that the offense required – there was no recklessness. Even though everybody else would have her seen this risk.
The House of Lords were unhappy with this. there was a big policy issue here where they could not allow people to escape liability for the criminal consequences of what they did just by saying “I didn’t foresee it.”
Even if that is honest, surely it is still blameworthy to not foresee a risk that is obvious to the rest of the world. The House of Lords reformulated the test of recklessness this:
They said there was two ways for a person to be reckless in criminal law.
Firstly, when he doesn’t act which in fact creates an obvious risk that property will be destroyed or damaged, and
Secondly, when he does that act either he has not given any thought to the possibility of the risk or he recognized the risk and went on anyway.
This gives us two different types of recklessness.
The one of the bottom is straightforward and is exactly the same as what we really talking about. The defendant is reckless if he recognizes that there is a risk and goes on to take it anyway. That is subjective. It is about the defendant knowing about a risk and taking it anyways. so for that reason we call it ADVERTENT RECKLESSNESS. this is knowingly taking a risk.
the controversial and interesting thing the House of Lords did is create a second type of criminal recklessness — INADVERTENT RECKLESSNESS, based on objectivity. it says that it defendant is reckless if he fails to recognize an obvious risk. That is a risk that a reasonable man would recognize.
Elliot v C
This case involved a 14-year-old girl from a very troubled background who had significant behavioral and educational difficulties. Her mental state wasn’t even that of a normal 14-year-old, let alone that of a reasonable man.
She ran away from foster care, stayed out all night, and when it got cold she sheltered in a garden shed. She tried to start a fire. The fire didn’t take, so she found some white spirits in the shed and try to pour some on the fire hoping it would help it burn. It did. The shed was destroyed in the fire.
We can ask now, is it obvious that if you pour white spirit onto a fire in a building made of wood that there is a risk that it would catch fire and be destroyed? Yes it is.
Could the girl foresee that risk? No. She didn’t have sufficient mental capacity to understand the risks in the same way as the reasonable man would.
The magistrates when she went to court were very unhappy about imposing criminal liability for something, through not fault of her own, she couldn’t have foreseen. They acquitted her and the prosecution appealed against the conviction and the divisional court ruled that the Caldwell Test should have been applied here. The only test that should’ve been applied is the reasonable man test.
That means that not only do we penalize people who could have foreseen risks but didn’t think about it, we are penalizing people who have no way of foreseeing the risks. For some people, that meant that the objective standard was inappropriately harsh as a test of criminal liability.
R v G
The defendants were 11 and 12 years old and they were messing about. They went behind a supermarket and they started setting fire to newspaper. The newspaper, they thought, would extinguish and they threw it into a bin. What actually happened was it set fire to a load of cardboard in the bin, and the fire then spread from the bin to the co-op and destroyed it doing 1 million pounds worth of damage.
At their trial, because this is criminal damage, the Caldwell Test was applied. was there an obvious risk to when you set fire to a been so close to a shop that the fire might spread and destroy the shop? Yes. The defendants were convicted. The appeal all the way to the House of Lords who revisited Caldwell and said it was unacceptable.
The mens rea for serious offences should be based on subjectivity, not objectivity.
In general, our belief is that we should only penalize people for their subjective states of mind. the House of Lords overruled Caldwell, and replaced it with this test of recklessness which is subjective.
A person acts recklessly with respect to a circumstance when he is aware that a risk exists or will exist; or result when he is aware of a risk when it will occur, and in the circumstances known to him it is unreasonable to take the risk.
What does mean?
It means, if we think about criminal damage, the result is the damage or destruction of property, so a person is reckless if they are aware that property could be destroyed or damaged, but they go on to act in a way that is unreasonable for them to take that risk.
So this is a subjective test, but it also acknowledges for the first time that some risks are reasonable to take while others are not.
This is a different test for recklessness. Cunningham Recklessness is purely subjective; it just says, did you take a risk? If you took a risk, even if it was small, then you are reckless.
Here, the test is subjective – did you take a risk, and was it unreasonable for you to take that risk?
