Recklessness Flashcards
What is Recklessness?
this is a lower level of Mens Rea where the defendant knows there is a risk of the consequence happening but takes that risk
What case does the explanation of recklessness come from?
Cunningham 1957
Facts and decision of Cunningham 1957
D tried to steal money, the gas meter he tore off caused V to die. Charged under s.23 of the Offences Against the Persons Act 1961. Not guilty since he dd not realise the risk of gas escaping. He did not intend to cause harm, nor had he taken a risk he knew about
what word does the offence involved in Cunningham use?
‘maliciously’
Why does the offence involved in Cunningham 1957 use the word maliciously?
to indicate the Mens Rea required
What did the court hold that the word maliciously meant in Cunningham 1957?
that to have the necessary Mens Rea the defendant must either intend the consequence or realise that there was a risk of the consequences happening and decided to take that risk
Knowing about a risk and taking it can also be referred to as what?
‘subjective recklessness’
Why is knowing about a risk and taking it referred to as a subjective recklessness?
because the defendant himself realised the risk
D tried to steal money, the gas meter he tore off caused V to die. Charged under s.23 of the Offences Against the Persons Act 1961. Not guilty since he dd not realise the risk of gas escaping. He did not intend to cause harm, nor had he taken a risk he knew about
What is this case?
Cunningham 1957
Which case confirmed that the same principle of ‘subjective recklessness’ applies in all cases where an Act of Parliament uses the word maliciously?
Savage 1992
What did the the Law Lords say about the word ‘maliciously’?
that it was a term of legal art
What did the Law Lords mean when they referred to the word ‘maliciously’ as a term of legal art?
that it has a special meaning when used in an Act of Parliament, not its normal dictionary definition
What does maliciously mean?
doing something intentionally or being subjectively reckless about the risk involved
What are 4 offences for which recklessness is sufficient for the mens rea?
- assault and battery
- ABH (s.47 Offences Against the Person Act 1861)
- malicious wounding (s.20 Offences Against the Person Act 1861)
- criminal damage
What were the 2 levels of recklessness?
- subjective, where D realised risk
- objective, where ordinary person would have realised risk, even if D didn’t
What type of recklessness is now the only one that the law now recognises as being sufficient to prove a defendant guilty?
subjective
Between what period of time could a defendant be guilty of certain offences even though he had not realised that there was a risk?
1982-2003
Which case decided that D could be guilty of an offence eve though he had not realised that there was a risk?
Metropolitan police Commissioner v Caldwell 1981
What happened in the case Metropolitan police Commissioner v Caldwell 1981
D got drunk, set fire to hotel. Fire put out without serious damage. D was charged with arson. Conviction upheld
What did D in Metropolitan police Commissioner v Caldwell 1981 dispute with his conviction of arson?
that he was drunk so he had not realised peoples lives might be endangered.
D got drunk, set fire to hotel. Fire put out without serious damage. D was charged with arson. Conviction upheld
What case is this?
Metropolitan Commissioner v Caldwell 1981
What were the two situation the HOL in Caldwell 1981 held that recklessness covered?
Where D had realised risk
Where D had not thought about possibility of risk
What case shows that there was a problem that the HOL held in Caldwell 1981 that recklessness can cover situation where D had not thought about the possibility of any risk?
Elliot v C 1983
What happened in the case of Elliot v C 1983
14year old with learning difficulties did not appreciate that her act might have set a shed on fire. Found guilty because ordinary adults would have realised the risk.
14year old with learning difficulties did not appreciate that her act might have set a shed on fire. Found guilty because ordinary adults would have realised the risk.
What case is this?
Elliot v C 1983
Which case did the HOL overrule Metropolitan Police Commissioner v Caldwell 1981?
G and another 2003
What happened in the case of G and another 2003
D’s were 11 and 12. Set fire to wheelie bin and left. Thought fire would go out by itself. Fire caused £1 million pound worth of damage. Boys convicted under Criminal Damage Act 1971. HOL quashed conviction
D’s were 11 and 12. Set fire to wheelie bin and left. Thought fire would go out by itself. Fire caused £1 million pound worth of damage. Boys convicted under Criminal Damage Act 1971. HOL quashed conviction
What case is this?
G and another 2003
Why were G and another 2003 convicted under the Criminal Damage Act 1971 before HOL quashed this conviction ?
because the judge directed the jury that they had to decide whether ordinary adults would have realised this
What did the HOL say about the decision in Metropolitan police Commissioner v Caldwell 1981?
that the Law Lords adopted an interpretation of s1 of the Criminal Damage Act 1971 which was ‘beyond the range of feasible meanings’
Which definition of recklessness did the HOL in G and another 2003 approve of?
the draft Criminal Code
What is the point of the subjective aspect of recklessness?
the reasons for D taking the risk are not relevant, it does not matter why, only matters that D was aware of the risk
What case was the decision in G and Another 2003 used?
Attorney General’s Reference 2004
What was the area of law that the case of Attorney General’s Reference 2004 used the decision in G and Another 2003 to decide ?
this case was about a very different area of law as it involved the common law offence of wilful misconduct in a public office
What now is the law on the area of recklessness?
Where recklessness is sufficient for the mens rea of an offence, it must be subjective recklessness
What is the job of the jury in a case of recklessness?
to prove that D realised the risk and decided to take it
What is the area in which subjective recklessness has been re established?
involuntary manslaughter
For a brief period after which case was it held that both subjective and objective recklessness applied to involuntary manslaughter?
Metropolitan Police Commissioner V Caldwell 1981
Why was the objective recklessness a very harsh test to apply in the case of involuntary manslaughter?
as a person could be guilty of manslaughter when they had not personally foreseen any risk at all
Which case in 1994 re instated the test of gross negligence?
Adomako
D was an anaesthetist who didn’t realise oxygen pipe disconnected, V died. Convicted of gross negligence manslaughter
What case is this?
Adomako 1994
What happened in the case of Adomako 1994
D was an anaesthetist who didn’t realise oxygen pipe disconnected, V died. Convicted of gross negligence manslaughter
Which case after Adomako 1994 affirmed that involuntary manslaughter could still be based on subjective recklessness?
COA in Lidar 2000
What happened in the case of Lidar 2000?
D drove off with V half in and half out of the car. V suffered injuries which led to death. D convicted of manslaughter.
D drove off with V half in and half out of the car. V suffered injuries which led to death. D convicted of manslaughter.
What case is this?
Lidar 2000
How must you prove manslaughter?
Must be shown that D foresaw there was a highly probable risk of serious injury or death to the victim
For cases other than manslaughter which uses a highly probable risk test, what is the test for risk taking in other offences?
only a probable level of risk must have been foreseen by D
What is an advantage for the subjective test of recklessness which was firmly based upon the decision made in G and another 2003?
it makes people take responsibility where they are aware there is a risk of the consequence occurring
How is the subjective test on recklessness fair on D?
as D cannot be held liable when they did not realise the risk
Although the law on recklessness under the subjective test is fairer on Defendants, who is it not fair on/protect?
does not protect innocent victims and their families who are members of the public
What is public policy based on?
public policy is based on public protection and the encouragement of good behaviour
What is a legal principle?
legal principles impose liability where there is a fault
How can there be a conflict between public policy and legal principles?
this is because it is not often always possible to balance protection of the public with fairness to the defendant
What have some argued that a subjective test for recklessness has lead to with defendants?
D’s can too easily avoid liability
How can D’s too easily avoid liability under the subjective test for recklessness?
as the prosecution have to prove that D was aware of the risk. It is difficult to prove what was in D’s mind
What 2 areas of law do not take into account D’s characteristics unlike the law on recklessness which does?
areas of criminal law such as defence of loss of control and duress
What does it mean that some areas of criminal law such as loss of control and duress do not take characteristics under consideration but the law on recklessness does?
this means that there are conflicting legal principles in the different areas of law
