In my last blog post, we looked at what mens rea is in criminal law and how this applies when the defendant has intention as their mens rea. In this blog post, we will be staying in the same area of law but instead considering how mens rea is established in cases where the defendant was only reckless. Recklessness is a lower level of proof than intention and is easier to establish. However, some crimes require intention for the defendant to be found guilty, as mere recklessness is not enough. In addition, the type of mens rea may be persuasive when the judge or magistrates are sentencing the defendant, giving a harsher sentence if there was intent.
The natural definition of recklessness is behaving without any regard for the potential risk involved. Finding a definition in criminal law that suggests a suitable test is harder and has been the subject of much debate over the years. One of the key decisions to make is whether any test involved should be subjective or objective. A subjective test only looks at what the defendant thought or honestly believed, even if this is incorrect or not a mistake most people would make. An objective test asks instead what the reasonable person would have thought or believed in the same situation, regardless of what the defendant thought. An objective test is generally easier to prove, as no knowledge of the defendant’s thoughts is needed.
Cunningham Recklessness
The first test for mens rea based on recklessness concerned criminal damage and emerged from R v Cunningham [1957] 2 QB 396. In this case, the defendant tore a gas meter off the wall to access and steal the money inside. However, doing this caused a gas leak, which spread into the neighbouring property, poisoning the occupant. He was charged with breaking s 23 of the Offences Against the Person Act 1861, which states that “(w)hosever shall lawfully and maliciously administer to or cause to be administered to” the poison in question is guilty of the offence. It was decided that malicious could either mean with intent of harm or with the knowledge that some harm might occur but proceeding anyway.
Modifications to Cunningham
There are a few cases that modify or confirm Cunningham recklessness. Firstly, R v Parker [1977] 1 WLR 600 focused on the foresight of some harm occurring. In this case, the defendant tried to use the telephone in a public call box, but it was not working. In a temper, he slammed the receiver twice into the dialling unit, breaking it. The question was whether he was aware of the risk of damage, despite his anger. It was decided that he must still have been somewhat aware that damage might result from his actions.
The second case is R v Stephenson [1979] QB 695, where the defendant had lit a fire inside a haystack to keep warm. However, as he had schizophrenia, he had genuinely not realised the risk of damage, so he was found not guilty on appeal, as the test is entirely subjective.
Caldwell Recklessness
The next test for recklessness was established in the case MPC v Caldwell [1982] AC 341, where the defendant set fire to a hotel while drunk as revenge on his employer. The fire was found and extinguished before anyone was hurt and the defendant was charged with aggravated criminal damage. He argued that, being intoxicated, he had not foreseen the risk to the hotel guests. This creates a new test for recklessness, which states that a person is reckless when the act created an obvious risk and he has not thought about it or thought about it and proceeded anyway. The defendant’s argument was unsuccessful as it was decided that becoming so intoxicated that he didn’t see the risk was reckless in itself.
There have been many criticisms of the Caldwell test. Firstly, it being an objective test can lead to unjust outcomes, such as the case of Elliott v C [1983] 1 WLR 939, where a fourteen-year-old girl poured white spirit on the floor of a shed and set fire to it. As she had developmental issues, she genuinely did not appreciate the risk, but the Caldwell test made no allowance for this. In addition, the Caldwell test applied to criminal damage, but the Cunningham test still applied to offences against the person, meaning there were two different definitions of recklessness depending on the offence. Finally, the test could be difficult for juries to understand.
Removal of Caldwell Recklessness
Eventually, the Caldwell test for recklessness was overruled by the House of Lords in R v G and another [2003] UKHL 50. In this case, the two defendants set newspapers on fire inside a bin. The fire spread to a nearby shop, causing considerable damage. It was decided that the defendants had genuinely not appreciated the risk and so had not been reckless, creating a new test.
The test is that the defendant acts recklessly with respect to a circumstance when he is aware of a risk that it exists or will exist or a result when he is aware of a risk that it will occur and it is, in the circumstances known to him, unreasonable to take the risk. This moves back to a subjective test again to avoid the unjust outcomes seen with Caldwell recklessness.
Wrapping Up
I hope that this helps you to understand how recklessness is determined in criminal law and the different tests that there have been. In my next blog post, we will be looking at what negligence is in criminal law, so come back in two weeks for that!
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