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Recklessness in criminal liability cases

With the exception of offences of strict liability, all criminal offences require proof of fault on the part of the accused. The degree of fault required varies between offences and the hierarchical nature of mens rea is used to delineate the relative seriousness of the acts of the accused. Intention is the most culpable state of mind as it implies deliberate wrongdoing whereas negligence denotes a level of carelessness that only just crosses the boundary of fault that justifies the imposition of criminal liability. Falling in between intention and negligence is recklessness, which signifies unjustified risk-taking. This essay will consider the varying judicial approaches to the interpretation of recklessness in order to determine the extent to which it is true to say that it is a state of mind indicative of wanton indifference by the accused to the consequences of his actions.

To describe recklessness in terms of ‘wanton indifference’ suggests that the accused has a deliberate lack of concern regarding whether or not harmful or injurious consequences result from his actions. This suggests that a known risk has been ignored thus is indicative of subjective recklessness.

The leading case on subjective recklessness is Cunningham.[1] This involved a defendant who, in order to steal the money contained therein, wrested a gas meter from the wall of a building. This severed a pipe and caused gas to seep into an adjoining building where it was inhaled by the occupant. The defendant was charged with recklessly administering a noxious substance.[2] The court applied a subjective test based upon whether the defendant had ‘foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it’.[3] Following this statement of recklessness, the defendant could only be liable if he realised that there was a risk that the gas would be inhaled by someone. In other words, subjective recklessness is only established if the accused is aware of a risk of a particular type of harm arising from his actions. This suggests that recklessness is concerned not so much with wanton indifference to any adverse consequences arising from his actions but with wanton indifference to a particular kind of harm.

This principle was modified in subsequent cases concerning non-fatal offences against the person. In Mowatt, it was held that a requirement that the accused foresees a particular kind of harm, i.e. grievous bodily harm, was unduly restrictive.[4] Instead, a defendant would be reckless if he foresaw that his actions would lead to some harm, albeit not harm of the seriousness that occurred. The so-called Mowatt-gloss on Cunningham recklessness was affirmed by the House of Lords in Parmenter but applies only to section 20 and 18 of the Offences against the Person Act 1861.[5] Although this is broader than pure Cunningham recklessness, it does still not correspond with the notion of wanton indifferences to any consequences of one’s action but to a broad category of consequences, namely some form of personal harm.

In other areas of criminal law, the courts have taken a wholly different approach to recklessness. The House of Lords in Caldwell formulated an objective test of recklessness based not on whether the defendant recognised a particular risk but on whether a reasonable person would have recognised a risk of harm.[6] If the risk of harm was obvious to the reasonable person, the defendant will be found to have been reckless even if he did not realise that there was a risk of harmful consequences occurring as a result of his conduct. This broader test could be argued to epitomise the notion of indifference to the consequences of one’s actions but could not be described as wanton indifference as it is based upon a failure to realise that a risk existed rather than upon deliberately taking a recognised risk. This argument finds support in the decision of the Court of Appeal in Satnam and Kewel where it was held that a direction to the jury that the defendant would be reckless, in relation to consent to intercourse for the purposes of rape, if he had a ‘couldn’t care less’ attitude was one of subjective, not objective, recklessness.[7] In other words, culpable indifference requires awareness of the potential consequences of one’s actions therefore objective recklessness cannot be described as wanton indifference to the consequences of one’s actions.

However, the House of Lords in Reid adopted a contrary position, holding that the accused can be indifferent to a risk without being aware that it exists.[8] This view finds support in academic writing where it was explained in terms of going about one’s business without a thought for the consequences, good or bad, that will result.[9] In Reid, the defendant had caused death whilst driving in a manner which most people would consider carried a risk of harm but had asserted that he had not been reckless because he had not been aware of the risk. The House of Lords held that deliberately closing one’s mind to the risks that were obvious to other people was equally blameworthy of taking a risk that had been recognised.[10] This notion of objective recklessness as a deliberate blindness to obvious risks could legitimately be described as wanton indifference to the consequences of one’s actions. In a sense, it could be argued that objective recklessness, failure to recognise an obvious risk, is a clearer encapsulation of wanton indifference than subjective recklessness, which requires a degree of specificity in relation to the foresight of harm. Objective recklessness is broader than this and includes situations in which the accused was wilfully blind to the consequences of his actions as he closed his mind to any contemplation of the ramifications of his behaviour.[11]

Following this judicial view of objective recklessness, it seems that it is accurate to say that recklessness, at least in one of its forms, can be described as wanton indifference to the consequences of one’s actions. However, whilst this may have been an accurate statement, the law has changed and objective recklessness no longer exists within the criminal law. The House of Lords in R v. G[12] overruled Caldwell objective recklessness and replaced it with a new subjective test based upon the Law Commission’s Draft Criminal Code.[13] This change in law was a response to the perceived unfairness of an objective test of recklessness that imposed liability on those who had failed to recognise an obvious risk of harm even if they were incapable, through no fault of their own, of recognising that risk. For example, in Elliot v. C, liability for criminal damage was based upon the defendant’s failure to realise that using white spirit as an accelerant to light a fire created a risk that the fire would spread and could destroy property.[14] The defendant in question was a young girl with limited mental capacity hence was inherently incapable of appreciating this risk but was convicted because it was a risk that foreseeable by a reasonable person.

This case demonstrates the other end of the spectrum of culpability that is encapsulated by objective recklessness. Not only does it facilitate the imposition of liability on those who are deliberately blind to overwhelming risks, such as Reid, but also on those who are incapable of recognising the consequences of their actions, as in Elliot v. C. This latter manifestation of objective recklessness could not in any way be described as wanton indifference to the consequences of one’s actions because it involves a defendant who would have been incapable of appreciating the potential consequences even if she had addressed her mind to it.[15] It was this aspect of objective recklessness that led the House of Lords to overrule Caldwell; in R v. G, two young boys had been convicted of criminal damage following the spread of a fire and it was held that it was inappropriate to impose liability on the basis of a level of foresight of consequences that they were incapable of reaching.

As R v. G overruled Caldwell in its entirety, the more culpable manifestation of objective recklessness exemplified by Reid is also extinguished. As such, there is no remaining test of recklessness that is a true reflection of wanton recklessness as to the consequences of one’s actions. The test formulated in R v. G is based on the unjustified taking of a known risk; although this implies deliberate, and therefore wanton, disregard of the consequences of one’s actions, it is limited to a particular consequence, i.e. that prescribed in the actus reus of the offence (the damage or destruction of property belonging to another) rather than a ‘couldn’t care less’ approach to any unlawful consequences.

In conclusion, whilst all forms of recklessness could be described in generic terms as indifference as to the risk of some degree of specificity of consequences, only the recently-demised objective test in Caldwell is an accurate reflection of recklessness as wanton indifference to the consequences of one’s actions, and then only in its most culpable manifestation of wilful disregard of an abundantly obvious risk.

Word Count: 1500 words

Case List

DPP v. Parmenter [1992] 1 AC 699

Elliot v. C (A Minor) [1983] 2 All ER 1005

Metropolitan Police Commissioner v. Caldwell [1982] AC 341

R v. Cunningham [1957] 2 QB 396

R v. G [2004] 1 AC 1034

R v. Mowatt [1968] 1 QB 421

R v. Satnam and Kewel (1983) 78 Cr App R 149

R v.Reid [1992] 3 All ER 673

Bibliography

Birch, D., ‘The Foresight Saga: the Biggest Mistake of All’ [1988] Criminal Law Review 4

Field, S. and Lynn, M., ‘The Capacity for Recklessness’ (1992) 92 Legal Studies 74

Herring, J., (2004) Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press

Horder, J., ‘Two Histories and Four Hidden Principles of Mens Rea’ (1997) 113 Law Quarterly Review 95

Leigh, L., ‘Recklessness after Reid’ (1993) 56 Modern Law Review 208

Martin, J. and Storey, M., (2004) Unlocking Criminal Law, London: Hodder & Stoughton

Ormerod, D., (2005) Smith & Hogan Criminal Law, 11th ed., Oxford: Oxford University Press

1


Footnotes

[1] R v. Cunningham [1957] 2 QB 396

[2] Section 23 of the Offences against the Person Act 1861

[3] R v. Cunningham [1957] 2 QB 396 at 399 per Byrne LJ

[4] R v. Mowatt [1968] 1 QB 421

[5] DPP v. Parmenter [1992] 1 AC 699

[6] Metropolitan Police Commissioner v. Caldwell [1982] AC 341

[7] R v. Satnam and Kewel (1983) 78 Cr App R 149

[8] R v.Reid [1992] 3 All ER 673

[9] Leigh, L., ‘Recklessness after Reid’ (1993) 56 Modern Law Review 208

[10] Birch, D., ‘The Foresight Saga: the Biggest Mistake of All’ [1988] Criminal Law Review 4

[11] Horder, J., ‘Two Histories and Four Hidden Principles of Mens Rea’ (1997) 113 Law Quarterly Review 95

[12] R v. G [2004] 1 AC 1034

[13] Clause 18(c) Draft Criminal Code

[14] Elliot v. C (A Minor) [1983] 2 All ER 1005

[15] Field, S. and Lynn, M., ‘The Capacity for Recklessness’ (1992) 92 Legal Studies 74


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