Recklessness

Question 1

Recklessness

Answer 1

The taking of an unjustifiable risk.
Unjustifiable Risk: Balance of social utility against serioussness of harm that will result if the risk manifests.

Recklessness involves taking an unjustifiable risk with awareness of a particular consequence. Recklessness is also the equivalent of Mens Rea in certain crimes e.g. Involuntary Manslaughter.

Question 2

Cunnigham Test 1957

Answer 2

SUBJECTIVE RECKLESSNESS
R v Cunningham 1957:
D ripped gas meter from cellar of house to steal money inside, gas leak, V dies.
CA said malice required either:
-An actual intention to do the harm done
-Recklessness as to whether such harm could occur or not.

Cunningham definition of maliciously was applied throughout the OATPA and in Criminal Damage.
The Law Commission said the definition was right and said maliciously should be replaced with intentionally or recklessly.

Question 3

Application of Subjective Recklessness

Cunningham

Answer 3

R v Stephenson 1979:

• D schizophrenic homeless man
• Took shelter in haystack and lit fire
• Haystack set caught fire and some farming equipment damaged.

Question 4

Caldwell Test 1981-2003

Answer 4

D set fire to hotel where he had worked, didn’t realise people ight be endangered.

• Introduced Objective Recklessness
• Determined according to what the ‘ordinary, prudent individual’ would have seen, rather than Cunningham’s method.

If D doesn’t consider the risk, they are still guilty.

Question 5

Criticisms of Caldwell

Answer 5

• Caldwell concerned Criminal Damage, Stephenson would be overruled but other areas of law would still be using Cunningham.
• R v Lawrence, Objective Caldwell applied to reckless driving.
• Seymour 1982, HL applied Objective test to Reckless Manslaughter.

Question 6

Rejecting Caldwell

Answer 6

DPP v K 1990:
- Divisional Courts applied Caldwell to S47 OATPA.

Spratt 1991:
-Decalred DPP v K was wrongly decided

1995:
HL overruled Seymour with Adomako. Restoring test based on Gross Negligence and abolished Objective Reckless Manslaughter.

Question 7

Return of Cunningham Test

Answer 7

Elliot v C 1982:
Disapproved Caldwell.

R v G & R 2003:
2 D’s aged 11 and 12 set fire to newspapers at back of co-op, threw burning papers in wheelie bin and left. Fire spread to other bins and buildings £1 Million damage caused.
Judge directed Jury to use Caldwell and D’s convicted.
CA dismissed appeal but sent to HL
HL unanimously restored Cunningham and Subjective Recklessness.