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Gross negligence and recklessness.

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Introduction

Gross Negligence and Recklessness In imposing criminal liability for a failure to recognise the risks, obvious to a reasonable person, there are at least two factors: the level of risk involved The seriousness of the potential harm Only where the possible harm is more serious and the risk is more obvious, do we distinguish recklessness from carelessness and impose liability. In assessing this, other issues may come in: The social utility of the action Thus, the surgeon who performs a necessary but dangerous operation may realise that there is a high probability of serious harm or even death but we do not blame him or her if the operation fails - we balance the risks that are undoubtedly being taken against the social utility of the activity. We regard skilled surgical care as socially useful and do not regard the surgeon who kills a patient as reckless whereas a player of 'Russian Roulette' would certainly be so, despite the odds of 6-1 against, since that is an action of no social value whatsoever. At this point, I am using the terms, 'reckless' and grossly negligent' as synonymous but the former term has had an uncertain history. It can be regarded as simply 'gross negligence' involving a major deviation from the standards of the reasonable man, not a state of mind at all. ...read more.

Middle

Reckless was a word in ordinary speech and means not only taking foreseen and unnecessary risks but also the failure to see such risks: There must be an obvious risk, depending on the circumstances in which the defendant acted. This is a risk, which would be obvious to the reasonable person - Sangha (1988) Once the obvious risk is proved, it matters not whether the accused realised that there was a risk and decided to take it or whether he never realised that there was a risk at all - either way the defendant is liable. Only if the defendant adverted to the possibility of risk but decided that there was no risk, might there be an avenue of escape. There is a powerful dissent from Edmund-Davies and Wilberforce, arguing that recklessness might be an everyday term but it is also a legal term, defined in countless cases as well as by reform committees. The statute was in fact drafted by the Law Commission who clearly had the Cunningham decision in mind - indeed quite recently the Law Commission have produced a proposal for the codification of the whole of the criminal law in which recklessness is still defined in this sense. Precedent and reason might have been on the side of the dissentients but the Caldwell test of recklessness was upheld by the House of Lords in Lawrence where the accused was charged with ...read more.

Conclusion

Normally these are statutory where the text excludes any reference to mens rea. As such, it requires the court to decide whether to interpret the statute as including the word 'knowingly' in the text Negligence involves the inadvertent taking of a risk, which a reasonable person would not take. However, the level of risk is not high (mere carelessness) and the potential harm often not serious. There are few - under the Road Traffic Act 1988 it is an offence to drive a car without due care and attention or without due consideration Gross negligence involves the inadvertent taking of a risk, which a reasonable person would not take. The level of risk is much higher (more than mere carelessness) and the potential harm will be serious. This standard applies to manslaughter Caldwell recklessness again involves the inadvertent taking of a risk, which a reasonable person would not take. Again, the level of risk is high and the potential for harm serious. This test has been considerably restricted in recent years. Cunningham recklessness involves the advertent taking of unjustified risks, realising the risk but going ahead. The latter was much nearer the idea of foresight, as was discussed in relation to malice aforethought and murder (Hyam). This has an important role to play in offences against the person under the 1861 Act and property offences such as deception, which can involve lying recklessly (s.15 Theft Act 1968) Finally intention - purposive conduct ...read more.

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