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Critically evaluate the meaning of the term

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Introduction

Q: Critically evaluate the meaning of the term "Recklessness" to describe an aspect of Mens Rea (Guilty Mind) and explain how it is currently applied to offences in the English Law System. A: In everyday language, Recklessness means to take an unjustified risk. However, its legal definition is not quite the same. To find out the meaning of Recklessness, careful direction is to be given to the jury. There are tow types of Recklessness, which were named after the cases they were defined in: R v Cunningham (1957), which is the Subjective version of Recklessness and MPC v Caldwell (1982), which is the Objective version of Recklessness. The dictionary meaning of reckless is to be careless, thoughtless, incautious, heedless, unheeding, regardless, daredevil, madcap, wild, irresponsible, unwise, indiscreet, mindless or negligent. Recklessness is a form of Mens Rea (Guilty Mind). Mens Rea is the Latin for 'guilty mind' and traditionally refers to the state of mind of the person committing the crime. ...read more.

Middle

They defined recklessness as foreseeing that the kind of harm that in fact occurred might occur, and going ahead anyway. This is called a subjective test: the accused must actually have been reckless if he realised there was a risk of the gas escaping and endangering someone, and went ahead anyway. His conviction was in fact quashed because of misdirection at the trial. The Objective test was used in the case of MPC v Caldwell 1982, this was the case were an ex-employee of a hotel 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 recklessness or intention. On the fact, there was no intention and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was too narrow for the Criminal Damage Act 1971. For the Act, he said recklessness should not only include the Cunningham meaning, but also go further. ...read more.

Conclusion

But having two tests for the same word causes confusion and is unnecessary. As the law currently stands, concern has been expressed that the higher the Cunningham standard is applied to rape, the lower Caldwell standard is applied to criminal damage. This means that the property is better protected than people. Other problems with recklessness are that there is a lower threshold for liability. 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. Additionally, there is an overlap with negligence. The Caldwell test has blurred the distinction between recklessness and negligence. Before Caldwell, there was an obvious difference: recklessness mean knowingly taking a risk; negligence traditional meant unknowingly taking a risk of which you should have been aware. Caldwell clearly comes very close to negligence. Furthermore, the lacuna. The case of R v Merrick has been criticised 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. RECKLESSNESS By Roman Monaf ...read more.

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