IH A2 Law
MENS REA – RECKLESSNESS
Recklessness is a lower level of mens rea than intention and means
that the defendant knows that there is a risk of the consequence but
then takes that risk anyway.
Recklessness is only considered where it has been found that the defendant did not
have the intention to cause the consequence which occurred.
The current law on recklessness comes from the case of Cunningham (1957)
which states that recklessness is a subjective test in that it depends on the
particular defendant including all of his attributes and level of intelligence etc rather
than looking at the reasonable man (objective test).
Cunningham (1957) – D tore a gas meter from the wall of an empty flat
to steal the money inside. In doing this, he damaged the gas pipe and
gas seeped into the flat next door injuring the woman in the flat.
Cunningham was charged with the criminal offence of ‘maliciously
administering a noxious thing’ contrary to s23 Offences Against the
Persons Act 1861. He was found to be not guilty of the offence because he did not
realise the risk of gas escaping and therefore he had not intended to cause the
harm and he had not taken the risk he knew about.
In the legal sense of the word, maliciously means that to have the necessary mens
rea D must either intend the consequence or realise that there was a risk of the
consequence happening and decide to take that risk anyway. The case of Savage
(1992) confirmed that this principle applies to all cases where the word ‘maliciously’
is used in an Act of Parliament to describe a part of the offence.
An offence for which recklessness is sufficient for mens rea is assault occasioning
actual bodily harm contrary to s47 Offences Against The Person Act 1861.
The mens rea is intention or recklessness as to the assault or battery. There is no
requirement that the defendant intended or was reckless as to the injury inflicted
IH A2 Law
PROBLEMS
In the past, recklessness was a more complicated issue as there used to be 2 levels
of recklessness:
1. Subjective – Where the defendant realised the risk, but decided to take it (as
in Cunningham (1957))
2. Objective – Where an ordinary, prudent person would have realised the risk,
the defendant is guilty even if he did not realise the risk.
This objective test came from the case of Metropolitan Police Commissioner
v Caldwell (1981) and applied only to certain types of cases.
This objective test received widespread criticism as it meant that even if the
defendant himself had not realised that there was a risk involved in the actions
that he was taking, he could still have the necessary mens rea for the offence.
This caused particular problems where D had a condition which meant that they
were not capable of contemplating the risk – Elliot v C (1983) was a case which
involved a 14 year old girl with learning disabilities who did not understand that
her actions would lead to a shed being set on fire. Nevertheless, she was
convicted of the offence as the objective test of Caldwell recklessness meant
that she had to be judged by the standard of an ordinary adult. This clearly
illustrates that injustices were caused by the Caldwell recklessness test.
Other criticisms were:
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Whilst criminal damage was subject to Caldwell recklessness, Cunningham
recklessness applied to offences against the person and thus property was
given a greater level of protection.
The precise limits as to which offences required which type of recklessness
were not fully understood or defined
Having two definitions for the same word was confusing
The test was difficult for juries to understand
Having an objective test blurs the distinction between negligence and
recklessness
IH A2 Law
Caldwell recklessness was eventually overruled by the House of Lords in the
case of G and Another (2003) in which the defendants
were two boys aged 11 and 12 who set fire to some
bundles of newspapers and then threw them under a
wheelie bin thinking that they would go out. They left the
scene but a building caught fire and £1m damage was
done. They were initially convicted under the Caldwell idea of recklessness but
on appeal, the House of Lords overruled this saying that a defendant could not be
guilty of an offence unless he had realised the risk and decided to take it.
The House of Lords reaffirmed that the necessary test for recklessness is the
subjective Cunningham test.
This clarification however, does not mean that the law on recklessness is straight
forward. Some people still criticise the subjective test as it is very difficult to prove
what is the mind of the defendant at the time they committed the offence meaning
that some defendants can escape liability just by arguing that they did not foresee
the risk. However, as a matter of public policy, the idea that there should only be
liability where there is fault is the overriding principle.
Cunningham recklessness
(Subjective)
1957
Present Day
1981
2003
Caldwell recklessness
(Objective)