MENS REA: RECKLESSNESS
The narrow definition of intention means that it is often difficult to show that a defendant
intended the consequences of their actions. This difficulty is addressed by recklessness.
The definition of recklessness differs in concept significantly from that of intention, in
that the word is never given its ordinary meaning. The ordinary meaning of this word
could be considered as ‘carelessness’ or ‘dangerous’ - the legal definition is far more spe-
cific than the ordinary meaning.
Where the definition of recklessness is similar to intention is that it is also somewhat un-
clear as to what the proper definition should be. In a general sense, it refers to a defen-
dant’s unjustified risk-taking. It is the degree of this risk-taking and the defendant’s
awareness of the risk that has caused the issues surrounding the definition.
SUBJECTIVE RECKLESSNESS :
(R V CUNNINGHAM 1957)
issue: in the case was whether the trial judge had erred in his instruction to the jury and
what is the correct meaning of malice. The broader issue in the case was what amounts
to intention for s.23 of OAPA 1861.
Decision :
Malicious means either 1) An actual intention to do the particular kind of harm that was
done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused
has foreseen that the particular kind of harm might be done and yet has gone on to take
the risk of it).
- The correct test for malice was whether the defendant had either actual intent to
cause harm or was reckless as to the possibility of causing foreseeable harm. This is
known as “Cunningham Recklessness”. The jury should have been left to decide
whether, even without intending to cause harm, the appellant removed the gas meter
despite foreseeing that its removal could cause harm to his future mother-in-law
- To satisfy this type of recklessness, a defendant must be aware that a risk exists or will
exist, or that result will occur or that there is a risk that it will and, in the circumstances
known to the defendant, they unreasonably go on to take the risk.
This approach means that a defendant must foresee a risk or result and unreasonably go
on to take the risk. The position is therefore subjective, not only on the foresight of the
risk but also on the reasonableness of the defendant’s actions. However, as will be dis-
cussed below, this is not entirely the case. //As well D must be aware of the risk = but
may not be considered reckless.
(R V STEPHENSON 1979)
- the subjective test applied: the risk was unreasonable/unjustifiable for D to take
- held that the recklessness test is subjective and that, accordingly, the jury had been
misdirected. The appeal was allowed. The fact that the risk of causing damage would
have been clear to everyone of sound mind the appellant’s position did not prove that
the appellant himself was aware of the risk, given the fact that he was not of sound
mind due to his Schizophrenia
(R V PARKER 1977)
- important to note that a defendant cannot avoid liability by deliberately closing their
mind to a risk
- Closing one’s eyes to an obvious risk is not a sufficient defence. In the present case,
the damage to the phone was an obvious, even inevitable, outcome of the appellant’s
actions. Deliberately closing his mind to the risk in these circumstances was tanta-
mount to knowledge in the eyes of the court
“…a man certainly cannot escape the consequences of his action in this particular set of
circumstances by saying ‘I never directed my mind to the obvious consequences because
I was in a self-induced state of temper’” (Lane LJ, p.604)
1
, OBJECTIVE RECKLESSNESS :
he objectiveness element of the reasonableness of taking a particular risk.
(METROPOLITAN POLICE COMMISSIONER V CALDWELL 1982) - held that a defen-
dant would be reckless if they foresaw a risk and went on to take it, or where a risk ex-
isted and the defendant gave no thought to the risk existing.
- Although Caldwell was overruled in R v G and recklessness was returned to the previ-
ously described subjective test, it was made clear in the judgment in R v G that an ob-
jective approach could not be completely disregarded.
CALDWELL RECKLESSNESS :
A person is reckless as to whether the property is destroyed or damaged where:
(1) he does an act which creates an obvious risk that property will be destroyed or dam-
aged and
(2) when he does the act he either has not given any thought to the possibility of there
being any such risk or has recognised that there was some risk involved and has none-
theless gone on to do it.
However, Caldwell's recklessness is capable of causing injustice as it criminalises
those who genuinely did not foresee a risk of harm including those who are incapable of
foreseeing a risk as the following case illustrates
(ELLIOT V C 1983)
if the risk would have been obvious to a reasonably prudent person, once it has also
been proved that the particular defendant gave no thought to the possibility of there be-
ing such a risk, it is not a defence that because of limited intelligence or exhaustion, she
would not have appreciated the risk even if she had thought about it
a subjective standard now applies to criminal damage :
"A person acts recklessly within the meaning of section 1 of the Criminal Damage
Act 1971 concerning -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) 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."
SUMMARY ON RECKLESSNESS :
• A defendant will be reckless if they are aware that a risk exists and go on unreason-
ably to take that risk.
• The defendant’s awareness of the risk is considered subjectively.
• The reasonableness of taking the risk is assessed objectively.
• Objective recklessness, whilst not being fully relevant, may be a consideration.
2
The narrow definition of intention means that it is often difficult to show that a defendant
intended the consequences of their actions. This difficulty is addressed by recklessness.
The definition of recklessness differs in concept significantly from that of intention, in
that the word is never given its ordinary meaning. The ordinary meaning of this word
could be considered as ‘carelessness’ or ‘dangerous’ - the legal definition is far more spe-
cific than the ordinary meaning.
Where the definition of recklessness is similar to intention is that it is also somewhat un-
clear as to what the proper definition should be. In a general sense, it refers to a defen-
dant’s unjustified risk-taking. It is the degree of this risk-taking and the defendant’s
awareness of the risk that has caused the issues surrounding the definition.
SUBJECTIVE RECKLESSNESS :
(R V CUNNINGHAM 1957)
issue: in the case was whether the trial judge had erred in his instruction to the jury and
what is the correct meaning of malice. The broader issue in the case was what amounts
to intention for s.23 of OAPA 1861.
Decision :
Malicious means either 1) An actual intention to do the particular kind of harm that was
done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused
has foreseen that the particular kind of harm might be done and yet has gone on to take
the risk of it).
- The correct test for malice was whether the defendant had either actual intent to
cause harm or was reckless as to the possibility of causing foreseeable harm. This is
known as “Cunningham Recklessness”. The jury should have been left to decide
whether, even without intending to cause harm, the appellant removed the gas meter
despite foreseeing that its removal could cause harm to his future mother-in-law
- To satisfy this type of recklessness, a defendant must be aware that a risk exists or will
exist, or that result will occur or that there is a risk that it will and, in the circumstances
known to the defendant, they unreasonably go on to take the risk.
This approach means that a defendant must foresee a risk or result and unreasonably go
on to take the risk. The position is therefore subjective, not only on the foresight of the
risk but also on the reasonableness of the defendant’s actions. However, as will be dis-
cussed below, this is not entirely the case. //As well D must be aware of the risk = but
may not be considered reckless.
(R V STEPHENSON 1979)
- the subjective test applied: the risk was unreasonable/unjustifiable for D to take
- held that the recklessness test is subjective and that, accordingly, the jury had been
misdirected. The appeal was allowed. The fact that the risk of causing damage would
have been clear to everyone of sound mind the appellant’s position did not prove that
the appellant himself was aware of the risk, given the fact that he was not of sound
mind due to his Schizophrenia
(R V PARKER 1977)
- important to note that a defendant cannot avoid liability by deliberately closing their
mind to a risk
- Closing one’s eyes to an obvious risk is not a sufficient defence. In the present case,
the damage to the phone was an obvious, even inevitable, outcome of the appellant’s
actions. Deliberately closing his mind to the risk in these circumstances was tanta-
mount to knowledge in the eyes of the court
“…a man certainly cannot escape the consequences of his action in this particular set of
circumstances by saying ‘I never directed my mind to the obvious consequences because
I was in a self-induced state of temper’” (Lane LJ, p.604)
1
, OBJECTIVE RECKLESSNESS :
he objectiveness element of the reasonableness of taking a particular risk.
(METROPOLITAN POLICE COMMISSIONER V CALDWELL 1982) - held that a defen-
dant would be reckless if they foresaw a risk and went on to take it, or where a risk ex-
isted and the defendant gave no thought to the risk existing.
- Although Caldwell was overruled in R v G and recklessness was returned to the previ-
ously described subjective test, it was made clear in the judgment in R v G that an ob-
jective approach could not be completely disregarded.
CALDWELL RECKLESSNESS :
A person is reckless as to whether the property is destroyed or damaged where:
(1) he does an act which creates an obvious risk that property will be destroyed or dam-
aged and
(2) when he does the act he either has not given any thought to the possibility of there
being any such risk or has recognised that there was some risk involved and has none-
theless gone on to do it.
However, Caldwell's recklessness is capable of causing injustice as it criminalises
those who genuinely did not foresee a risk of harm including those who are incapable of
foreseeing a risk as the following case illustrates
(ELLIOT V C 1983)
if the risk would have been obvious to a reasonably prudent person, once it has also
been proved that the particular defendant gave no thought to the possibility of there be-
ing such a risk, it is not a defence that because of limited intelligence or exhaustion, she
would not have appreciated the risk even if she had thought about it
a subjective standard now applies to criminal damage :
"A person acts recklessly within the meaning of section 1 of the Criminal Damage
Act 1971 concerning -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) 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."
SUMMARY ON RECKLESSNESS :
• A defendant will be reckless if they are aware that a risk exists and go on unreason-
ably to take that risk.
• The defendant’s awareness of the risk is considered subjectively.
• The reasonableness of taking the risk is assessed objectively.
• Objective recklessness, whilst not being fully relevant, may be a consideration.
2
