this exam awnsers 2 questions which received a 1st (72)
question 1
Discuss whether it is preferable for English criminal law to assess an individual’s culpability for recklessness subjectivity or objectivity
question 2
“that the only purpose for which power can be rightfully exercised ove...
Question 1
‘Discuss whether it is preferable for English criminal law to assess an individual’s culpability
for recklessness subjectivity or objectivity
Within criminal law, the mens rea for a crime can either be found through intent or
recklessness; subjective and objective are both tests which were created for the courts the
apply to a case to determine whether or not a person has the necessary mens rea for the
crime they committed. The Latin term mens rea is where a person has performed acts with
the intention or the knowledge of the act's consequences; it can also be known as malice
aforethought, which both relate to the mental element of a crime. If the mens rea of a crime
ought to be through intent, it requires a person to have intended to have committed the
crime, whether that be through direct intent or indirect. On the other hand, recklessness is a
much more complex method of determining intent; the history of recklessness within the
courts allows us to understand why it is complex as it has been debated many times to
determine which method is preferable to test when forming intent. Although, it can be
argued that both tests have faults, as subjective recklessness has been argued to allow
people to escape conviction who deserve it and objective recklessness has been seen to find
people guilty of a crime that they may not have been able to understand the consequences
to.
Subjective recklessness was formed in the case of R v Cunningham 1957 where the courts
established that recklessness can be found when a person takes an unjustified risk that leads
to unlawful harm or damage. Cunningham’s recklessness focuses on whether the Defendant
in question would have foreseen the consequence, which is in direct contrast to the
objective test where they focus on if the average person would have foreseen the
consequence. The case of R v Cunningham 1957 is where the Defendant stole a gas meter
which in doing so led to fracturing the gas pipe and causing gas to leak into his neighbour’s
house, where the victim inhaled it. This led to the Defendant being charged with unlawfully
and maliciously causing the victim to inhale the gas, which endangered her life. For a crime
to be committed maliciously means that foresight is required; however, at no point did it
cross his mind that his actions would have led to the poising of the victim; due to this, the
courts set the precedent of subjective recklessness. Although it has alternated between
subjective and objective in history, it is currently the preferable test after Lord Diplock
reinstated it in the case of R v G 2003.
Objective recklessness is the deliberate blindness to obvious risks, which originated in the
case of R v Cadwell 1982, where the Defendant got drunk and set a fire in a hotel due to a
grievance with the owner. Although no serious damage was done he was charged with
criminal damage and with being reckless as to endangering life. As this case set the
precedent for objective recklessness the Defendant was charged regarding the new test, it
did not matter that the Defendant did not foresee the harm, if a reasonable person would
have foreseen the potential harm then they are reckless. The objective test can be seen as
unfavourable due to the courts having to consider whether a reasonable person would have
foreseen the consequences as it doesn’t include if the Defendant in question lacked the
mental capacity or was of limited intelligence. This can be seen in the case of Elliot v C where
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