Recklessness And Criminal Liability Essay Research Paper

Explain the role of recklessness in determining criminal liability.In everyday language, recklessness means taking an unjust risk. However its definition in law is different to its ordinary English meaning and careful direction as to its meaning in law has to be given to the jury.

There are two types of recklessness, which exist, subjective recklessness, also known as Cunningham recklessness, and objective recklessness, which is also know as Caldwell recklessness. (Caldwell recklessness only applies to criminal damage).

For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. A case to illustrate this is R v Cunningham ? Cunningham pulled a gas meter of a wall in a house intending to steal money. He broke the main gas pipe, releasing gas into the rest of the house which was inhaled by the old lady that lived there. The C/A quashed the conviction due to a miss-direction by the trial judge as to the word ?malicious? under S.23 O.P.A 1861-maliciously administering a poison ?we wish to make clear that the test is subjective that the knowledge of appreciation that the risk of some danger must have entered the defendants mind even though he may have suppressed or driven it out?. This case defined this type of recklessness therefore called Cunningham recklessness.

Caldwell recklessness is different, firstly it only applies in cases of criminal damage. The case of MPC v Caldwell created new and much wider tests for recklessness. Caldwell was an ex-employee of a hotel and nursed a grudge against its owner. He started a fire at the hotel, which caused some damage and was charged with arson. This offence is defined in the Criminal Damage Act 1971 as requiring either intention or recklessness. On the facts there was no intention and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was to narrow for the Criminal Damage Act 1971. For that act, he said, recklessness should not only include the Cunningham meaning, but also go further. He said that a person is reckless as to whether any property would be destroyed or damaged if:

1.He does an act which in fact creates an obvious risk that property would be destroyed or damaged and

2.When he act he has either not given any thought to the possibility of their being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it.

Thus there are actually two potential ways that Caldwell recklessness can be proved. The first way is very similar to the old Cunningham test: ?he does an act which in fact creates?a risk?and?has recognized that their was some risk; The second way is the important extension to the meaning of recklessness: ?he does an act which in fact creates?an obvious risk?and?he has not given any thought to the possibility of there being any such risk?.

Without these types of recklessness there would be a large gap in the law in areas such as criminal damage, (Caldwell recklessness). And in areas such as non-fatal offences against the person and rape and indecent assault, (Cunningham recklessness).

What are the problems associated with recklessness and discuss proposals for reformOne problem with recklessness is the two tests. Having two different tests for the same word causes confusion and is unnecessary. As the law currently stands concern has been expressed that the higher Cunningham standard is applied to rape and the lower Caldwell standard is applied to criminal damage. This means property is better protected than people. Another problem is the adoption of Caldwell recklessness means that a mens rea generally considered less morally blameworthy than Cunningham recklessness is being applied to some serious offences. Lord Diplock argued that there were three good reasons for extending the test for recklessness. First, a defendant may be recklessness in the ordinary sense of the word, meaning careless, regardless or heedless of the possible consequences, even though the risk of harm had not crossed his mind. Secondly, a tribunal of fact cannot be expected to rule confidently on whether the accused?s state of mind has crossed ?the narrow dividing line? between being aware of risk and not troubling to consider it. Thirdly, the latter state of mind was no less blameworthy than the former.

A third problem is the Caldwell test has blurred the distinction between recklessness and negligence. Before Caldwell, there was an obvious difference: recklessness meant knowingly taking a risk; negligence traditionally meant unknowingly taking a risk of which you should have been aware. Caldwell clearly comes very close to negligence.

There is also a problem with the lacuna, the case of R v Merrick has been criticized as unrealistic. In practice, replacing electrical equipment often creates a temporary danger which cannot be avoided, yet technically each time in criminal law the electrician is reckless.

Another problem is the reasonable man test can be very harsh with defendants that are young or perhaps retarded. Elliott v C 1983 ? A backward 14-year-old set fire to a shed. She was charged with arson and the court held the test of a reasonable man took no account of her particular characteristics.

Coles 1995 ? The C/A said the same thing when a 15-year-old boy set fire to a hay barn with others sitting on top of the hay.

As you can see there are many problems associated with recklessness. Some suggestions for reform are the Law Commission draft Criminal Liability (mental element) Bill provides a redefinition of mens rea generally, and defines recklessness in subjective terms, in accordance with Cunningham rather than Caldwell recklessness. However, in 1996 when reviewing the law on manslaughter, the Law Commission confronted the issue of liability for consequences that are neither intended nor knowingly risked. It concluded that criminalizing the inadvertent causing of death where the risk of death or serious injury is obviously foreseeable and where the defendant has the capacity to advert to the risk.

Another suggestion for reform is reversion to Cunningham alone. Smith and Hogan argue that a distinction should be made between someone who knowingly takes a risk, and someone who simply gives no thought to the fact that there might be a risk. They might both be blameworthy, but not, in Smith and Hogan?s opinion, equally so. They recommend reverting to the stricter Cunningham definition for recklessness.

The last suggestion for reform I am going to mention is including characteristics of the defendant. If the purpose of Caldwell is to insure that people do not get away with giving no thought to a risk of which they should have been aware, a fairer test of what constitutes an obvious and serious risk might be ?in the circumstances, should the defendant (given such characteristics as age, or any mental incapability) have realized there was a risk? This would ensure that blameworthy thoughtlessness would insure liability, but would exclude the unfairness of cases like Elliott.

That was a few proposals for reform for recklessness. My opinion is that they should bring in the last proposal I mentioned because I feel the law is very unfair on people in cases such as Elliott.