Evolution of Recklessness in Legal Principles

Introduction

Principle around recklessness has gone through significant events, starting from the rules of Cunningham to Caldwell and to subjective approach to recklessness in R v G. This criminology dissertation help This essay will analyse components of recklessness, discussing the principles in these cases and other relevant cases covering the subjective and objective nature of recklessness.

This essay will discuss relevant principles, for instance the test of risk, involving the element of probability, foreseeable and obvious nature of risk. It will discuss the test of reasonableness and wilful blindness and most important the doctrine of mens rea (guilty mind) and actus reus (unlawful act).

Recklessness: Elements and tests

Intentional or reckless destruction or damage to somebody else’s property without having any lawful excuse amounts to an offence. The intention to cause the damage, by an act or omission, must be proof. In case of mistaken belief that the property belongs to him, the defendant lacks intention, but this mistake will not protect him if he believes that another person has also a proprietary interest in the property. Explanation of recklessness originally comes from the case of Cunningham, where the Cunningham was charged under Section 23 of the Offences Against the Person Act 1861 for maliciously administering a noxious gas when he allegedly tore a wall mounted gas meter of an empty house to steal money causing the gas to leaked in the house next door affecting the woman in it. He was held not guilty as he did not realise the risk involved in his act; there was no intention to cause harm, and he did not take risk he knew. The House of Lord in Metropolitan Police Commissior v Caldwell originally defined recklessness in respect to criminal damage. The definition indicates “inadvertence to obvious risk of damage to property”. Acting recklessly involves an act that creates an obvious risk of occurrence of a prohibited consequence without having thought of the possibility of existence of such risk, or with having recognised the existence of risk, the act was carried out. This is a test that calls for determining whether the risk is obvious. However, this Caldwell definition of recklessness was given a subjective definition in R v G, which reversed Caldwell. For recklessness, it must be shown despite having a subjective appreciation of a risk to the property of another, the defendant carried on with his act in any event before the act might be said to be criminally culpable. It is reflected in the Criminal Damage Act 1971, s1 as including a circumstance where he is aware of the current and future risk and a result that he has awareness of future risk, and that in such circumstances or results that it is unreasonable for him to take the risk. This Act of 1971 makes a criminal offence of causing damage to the property destroying it by fire. Section 1(3) makes this offence as arson. There is intent to destroy/damage property, or being reckless as to whether property would be destroyed or damaged or as to whether life would be endangered. This presents

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1. Smith (David) [1974] QB 354.
2. Michael Allen and Ian Edwards, Criminal Law (15th ed., Oxford University Press 2017) 607.
3. R v Cunningham [1957] 2 QB 396.
4. Metropolitan Police Commissioner v Caldwell [1982] AC 341.
5. Ibid.
6. Terence Moran, Legal competence in environmental health (Routledge 1997) 60.
7. R v G and another [2003] UKHL 50, [2004] 1 AC 1034.
8. Ibid.

two elements of mens rea. First is the intention to destroy or damage property, and second is the recklessness as to whether the property would be destroyed or damaged.

Thus, in Booth V Crown Prosecution Service the drunk defendant was held to be reckless and charged with criminal damage in his act of running across the road without a look out to safety closing his mind to the possibility of damage, despite being aware of the risk ended up colliding with a car and denting it. Section 5(2) provides for lawful excuse of duress, prevention of crime, self defence, or arrest of offenders. Section 5 provides for lawful excuse such as the belief that the other person consented to the destruction or damage to the property; or immediate need of and reasonable means of protection of his property or right or interest in the property. Elaborating more, Lord Bingham opined in the case of R v G and another that the use of the word reckless in section 1 mentioned above has no intention to change the law around mens rea necessary to offence of reckless damage to property. This pushes the importance of the element of foresight of consequence to occupy a necessary element of recklessness in the offence. Thus, to prove the offence, a defendant’s state of mind needs to be prove to be culpable where it must be shown that the act was reckless when in circumstances he was aware of the existing risk or future risk, and in regard to result, when he was aware that the risk would occur, it would have been unreasonable to take the risk. So, there are two elements for culpability. They are actus reus (unlawful act) and mens rea (guilty mind), which is determined by foreseeability. Thus, recklessness, in short definition, means conscious taking of a risk that is unjustified. Criminal liability defers to actus non facit reum nisi mens sit rea translated as to ‘act alone does not make a person guilty, unless his mind is also guilty.’

The doctrine of “wilful blindness” established in R v Sleep provides for situation where the defendant is considered to know the risk if he deliberately closes his eyes to the obvious risk just because he does not want to know. Such form of blindness constitutes actual knowledge. This doctrine does not treat any other treatment of actual knowledge such as “suspecting” to be at par with this treatment and therefore cannot be treated the right treatment. Being reckless and negligence are two different things and they should not be confused. For example, for being reckless the defendant knows the risk, but closes his eyes or mind and still takes the action. Whereas, the defendant is negligent when he is not aware of the risk, but should have been aware of it. In Stephen (Malcom R), the Court of Appeal held that the risk must be obvious to a reasonably prudent man of mature years and understanding. So, to determine recklessness, the defendant must be judged against a standard that he might have been constitutionally incapable of attaining. How mens rea is proved is

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9. Nicola Monaghan, Criminal Law Directions (Oxford University Press 2014).
10. Booth V Crown Prosecution Service [2006] EWHC 192.
11. Michael Allen and Ian Edwards, Criminal Law (15th ed., Oxford University Press 2017) 608-609.
12. R v G and another [2003] UKHL 50, [2004] 1 AC 1034.
13. Mohamed Elewa Badar, The concept of Mens Rea in international criminal law: The case for a Unified Approach (Bloomsbury Publishing 2013).
14. Ibid.
15. Simon Bronitt, ‘Australia’ in Kevin Heller, Markus Dubber (eds), The Handbook of Comparative Criminal Law (Stanford University Press, 2010) 56.
16. R v Sleep (1861) 8 Cox CC 472.
17. Mohamed Elewa Badar, The concept of Mens Rea in international criminal law: The case for a Unified Approach (Bloomsbury Publishing 2013).
18. Stephen (Malcom R) (1984) 79 Cr App R 334.
19. Stephen (Malcom R) (1984) 79 Cr App R 334.

also an important element in determining recklessness. Lord Goaddard in R v Steane, the Court of Criminal Appeal, explained that a defendant to be liable must do the act with the specific intent as needed in the relevant law. The motive of an act and the intention are different. Specific intention is a must ingredient in many offences and the relevant jury must be satisfied of existence of specific intent behind a particular act. In case nothing else was proved, the natural consequences of the act might be said to demonstrate the necessary intention. This may not be possible in case there is more than one view open to determine intent and the prosecution needs to satisfy the jury to show the intent, and if otherwise regarding the totality of evidence, the intent does not exist or there is doubt about it, the defendant must be acquitted. The probability doctrine provides that “the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended”. There are, therefore, two questions of probability that is also relevant in determining intent. First is how probable the consequence was that resulted from the defendant’s voluntary act. Second is whether defendant foresaw the consequence. Reading this with the test for risk, it should be determined whether a risk would be considered to be there in the mind of the reasonable man. A reasonable person must realise the risk and harm involved in the actions. Thus, in R v Seymour, the defendant was held guilty of recklessly causing manslaughter when he jammed the victim against the car.

Conclusion

The element of foresight of consequence occupies a necessary element in determining recklessness. Considering the discussion so far, there is a high level and mandatory necessity to determine the intention of the defendant and whether he was reckless in his action. The rules and principles discussed here show that proving mens rea is important, but more important is how it is proved, which occupies a determining factor in establishing recklessness. The Criminal Damage Act 1971 substantial serves this part in that it covers provisions that help in clear determination of whether the defendant was aware the current risk and future risk involved in his conduct. Importantly, it also provides lawful exception such as consent of other parties to the destruction or damage to the property; or immediate need of and reasonable means of protection of his property or right or interest in the property. This clearly segregates circumstances that may dilute the determination of recklessness, which is in fact holistically supported by doctrines, such as wilful blindness, probability, foresight and test of reasonableness.

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20. R v Steane [1947] KB 997.
21. Janet Dine, James Gobert and William Wilson, Cases and materials on criminal law (Oxford University Press 2010).
22. R v Hancock [1983] All ER 641 at 651,
23. Janet Dine, James Gobert and William Wilson, Cases and materials on criminal law (Oxford University Press 2010).
24. R v Church, [1965] 2 WLR 1220.
25. R v Seymour [1983] 2 AC 493.

Legislation

The Criminal Damage Act 1971

Cases

Booth V Crown Prosecution Service [2006] EWHC 192.

Metropolitan Police Commissioner v Caldwell [1982] AC 341.

R v Church, [1965] 2 WLR 1220.

R v Cunningham [1957] 2 QB 396.

R v G and another [2003] UKHL 50, [2004] 1 AC 1034.

R v Hancock [1983] All ER 641 at 651,

R v Sleep (1861) 8 Cox CC 472.

R v Steane [1947] KB 997.

R v Seymour [1983] 2 AC 493.

Stephen (Malcom R) (1984) 79 Cr App R 334.

Smith (David) [1974] QB 354.

Take a deeper dive into Diminished Responsibility and Coercive Control with our additional resources.

Bibliography

Books

Allen Michael and Ian Edwards, Criminal Law (15th ed., Oxford University Press 2017).

Badar ME, The concept of Mens Rea in international criminal law: The case for a Unified Approach (Bloomsbury Publishing 2013).

Bronitt S, ‘Australia’ in Kevin Heller, Markus Dubber (eds), The Handbook of Comparative Criminal Law (Stanford University Press, 2010).

Dine J, James Gobert and William Wilson, Cases and materials on criminal law (Oxford University Press 2010).

Moran T, Legal competence in environmental health (Routledge 1997).

Monaghan N, Criminal Law Directions (Oxford University Press 2014).