Recklessness Flashcards
When the offence required recklessness, what does the prosecution need to prove?
That the defendant took and unjustified risk knowing that a prohibited risk may happen
What is recklessness?
When the defendant took an unjustifiable risk knowing a prohibited result may happen
When was the first use of the phrase ‘subjective recklessness’?
R v Cunningham (1957)
What is the case of R v Cunningham (1957) relevant to?
The first use of the phrase subjective recklessness
What case happened in 1957?
R v Cunningham
In what year did the case of R v Cunningham happen?
1957
What happened in the case of R v Cunningham (1957)?
The defendant pulled a gas meter from a wall to steal some money and some gas seeped through to next door and made his future mother in law very ill
What was the outcome of R v Cunningham (1957)?
He was charged with ‘maliciously administering a noxious thing so as to endanger life’ under s23 of the offences against a persons act 1861. The court of appeal held that ‘malicious’ could mean intentionally or recklessly, but the defendant did not have the intention so the court considered recklessness. As a result they formed the subjective recklessness test.
How did Caldwell (1981) change the test for recklessness?
It is not objective
What is the case of Caldwell (1981) relevant to?
The test for recklessness becoming objective rather than subjective
What case changed the test for recklessness from subjective to objective?
Caldwell (1981)
What year was the case of Caldwell?
(1981)
What case happened in 1981?
Caldwell
What was the objective test set out in Caldwell (1981)?
That a defendant could be seen as reckless if he/she did an act creating an obvious risk even if the defendant was not aware of the risk
Look at these cards may take out (Caldwell)
H
In the mens rea hierarchy, where does recklessness fall?
It is the lower level of mens rea
Why was Caldwell (1981) overruled?
The definition caused lots of problems for the court and led to injustices as it was so harsh
What case happened in 2003?
R v G and another (2003)
What year was the case of R v G and another?
2003
What is the case of R v G and another (2003) relevant too?
The case of Caldwell (1981) being too harsh and being overruled by the subjective test created in this case
What was the test set out in R v G and another (2003)?
A person acts recklessly in respect to:
A circumstance when he is aware that it exists or will exist
A result when he is aware of a rush that will occur
Briefly, what are the evaluation points for recklessness?
Subjective is fairer
Nearly impossible to prove defendants mind state at the time
Harsh on the victims
Why was Caldwell (1981) overruled?
The definition caused lots of problems for the court and led to injustices as it was so harsh
What case happened in 2003?
R v G and another (2003)
What year was the case of R v G and another?
2003
What is the case of R v G and another (2003) relevant too?
The case of Caldwell (1981) being too harsh and being overruled by the subjective test created in this case
What was the test set out in R v G and another (2003)?
A person acts recklessly in respect to:
A circumstance when he is aware that it exists or will exist
A result when he is aware of a rush that will occur
Briefly, what are the evaluation points for recklessness?
Subjective is fairer
Nearly impossible to prove defendants mind state at the time
Harsh on the victims
Why is subjective recklessness fairer than objective recklessness?
Because it can take into account characteristics of the defendant which mean they are less likely to foresee the risk of their actions e.g age, learning difficulties
What is the problem with mens rea?
It is near enough impossible to prove the defendants state of mind at the time of the offence so judges and juries have to make a judgement
Why is it argued the subjective test is harsher on victims?
It’s harsher for victims and their families because they may feel the defendant should be punished for their risky behaviour which might have caused death or serious injury which might seem glaringly obvious to most people
What questions did the legal philosopher Hart propose?
Is it fair to apply an objective test to ordinary people who are capable of appreciating a risk?
Is it too lenient to not punish an adult who is perfectly capable of appreciating there is a risk but hasn’t bothered to consider it?
