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Mens Rea: Recklessness Prep Exam Questions With Correct Detailed Answers.
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What is recklessness? - correct answer This is a lower level of mens rea than intention. Recklessness is where the defendant knows there is a risk of the consequence happening but takes that risk. The explanation of recklessness comes from the case of Cunningham...

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  • October 18, 2024
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  • 2024/2025
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Mens Rea: Recklessness

What is recklessness? - correct answer This is a lower level of mens rea than
intention. Recklessness is where the defendant knows there is a risk of the consequence happening but
takes that risk. The explanation of recklessness comes from the case of Cunningham (1957).



What happened in the case of Cunningham (1957)? - correct answer The defendant
tore a gas meter from the wall of an empty house in order to steal the money in it. This caused gas to
seep into the house next-door, where a woman was affected by it. Cunningham was charged with with
an offence under S23 of the Offences Against the Person Act 1861, of maliciously administering a
noxious thing. It was held that he was not guilty since he did not realise the risk of gas escaping into the
next-door house. He had not intended to cause the harm, nor had he taken a risk he knew about.



What was the result of Cunningham (1957)? - correct answer The offence involved
in Cunningham (1957) uses the word 'maliciously' to indicate the mens rea required. The court held that
this word meant that to have the necessary mens rea the defendant must either intend the
consequence or realise that there was a risk of the consequence happening and decide to take that risk.
Knowing about a risk and taking it can also be referred to as 'subjective recklessness'. It is subjective
because the defendant himself realised the risk.

The case of Savage (1992) confirmed that the same principle applies to all offences where the definition
in an Act of Parliament uses the word 'maliciously'. The Law Lords said that 'maliciously' was a term of
legal art. In other words, it has a special meaning when used in an Act of Parliament, not its normal
dictionary definition. It means doing something intentionally or being subjectively reckless about the risk
involved.



What is the relationship between intention and recklessness? - correct answer Do
not forget that if the defendant has the higher level of intention he will, of course, be guilty. For
example, if the defendant intends to punch a victim in the face, that defendant has the higher level of
intention and is guilty of a battery. It is only when the defendant does not have the higher level that
recklessness has to be considered.



What offences require recklessness to be considered? - correct answer Offences for
which recklessness is sufficient for the mens rea include:

1) assault and battery.

2) assault occasioning actual bodily harm (S47 of the Offences Against the Person Act 1861).

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