This was supported in R. v. Stephenson (1979) Q.B. 695, but the Court of Appeal quashed the conviction with Lord Lane firstly looking at the recommendations of the Law Commission:
...A person is reckless if, a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.
It looked in 1980 if the word 'reckless' would be interpreted subjectively. Thinking back to Hart's formulation, this is more generous to the defendant, all Hart required was proof that the defendant had the ability to understand the risk. Stephenson (1979) required proof that the defendant actually appreciated the risk.
However, in 1981, this established state of the law was flipped into some turmoil by the House of Lords. In Caldwell (1981). The accused was charged with two offences, the first under s.1 (1) Criminal Damage Act 1971 criminal damage, but also under s.1 (2) of the same act which is criminal damage with the additional element of 'intentionally or recklessly endangering life'. The Court of Appeal allowed the appeal and that left the
House of Lords to decide on the meaning of recklessness and the relevance of drunkenness.
Currently the specific rule about drunkenness is if you are so drunk so that you do not form the intent necessary, then you are permitted to be acquitted. However, the rule in D.P.P. v. Majewski; sub nom. R. v. Majewski (1976) 2 All E.R. 142. Goes on to say that this only applies to offences involving specific intent and not to those requiring basic intent. The distinction between basic and specific intention is most unusual, to say that in Offences Against the Person, Murder and GBH are crimes of specific intent whereas most other forms of assault are crimes of basic intent. Where a defendant accused of assault seeks to prove that he was drunk and had no intention, he cannot adduce evidence of drunkenness.
If recklessness is a variety of subjective foresight, then under Majewski (1976) the defendant should be acquitted. However, if recklessness involved a more objective, gross negligence test, evidence of drunkenness would be irrelevant. In a majority judgment, Lord Diplock (with Lords Keith and Roskill concurring) considered and rejected the Cunningham method and the suggestion that the Criminal Damage Act of 1971 was actually drafted with that very verdict in mind. He argued that in popular speech there is no distinction between the person who recognises a risk
and goes on nevertheless and the person who never addresses his mind to the obvious risk at all.
The law, said Lord Diplock, should not perpetuate 'fine and impracticable distinctions'. Reckless is a word in normal speech and means not only taking predictable and pointless 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 R. v. Sangha (1988) 1 W.L.R. 519.
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 accountable. Baroness Wootton agrees on this point (along with may other points made by Lord Diplock) by saying “If the law says that certain things are not to be done, it is illogical to confine this prohibition to occasions on which they are done from malice aforethought: for at least the material consequences of an action, and the reason for prohibiting it, are the same whether it is the result of sinister malicious plotting, of negligence or of sheer accident”.
There is a powerful disagreement from Edmund-Davies and Wilberforce. 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 House of Lords in R. v. Lawrence (1982) A.C. 510, where the accused was charged with causing death by dangerous driving contrary to s.1 Road Traffic Act 1972 upheld the Caldwell test of recklessness. It is noted that Hart, in arguing for liability for negligence, drew the distinction between those able of observing certain principles and those who did not have that ability. If you do not differentiate, then the schizoid tramp or the inadequate, backward child is judged by the same standards as the prudent individual.
This point is illustrated in Elliott v. C (1983) 1 W.L.R. 939, The Divisional Court allowed the prosecutor's appeal; the defendant was reckless if the risk was one that was obvious to a reasonably prudent person.
Such cases question Lord Diplock's assertion that there is no moral difference between these two states. Equally, the Cunningham test was certainly applied by juries in countless cases (both before and after Cunningham) without obvious proof that juries were having trouble with a 'fine and unpracticable' distinction.
Therefore, what cases does this test of recklessness apply? In theory, to all statutory offences, which include the word ‘recklessly’ but so far, there has been slight interest except in cases of criminal damage and reckless (now Dangerous) driving. However there is now a statutory definition of 'dangerous' under s.1 Road Traffic Act 1991.
This is the result of Cunningham, which paradoxically remains good law. Lord Diplock regarded 'malice' as a term of art whereas he saw recklessness as bearing an ordinary, everyday meaning. In W v. Dolbey (1983) Crim.L.R. 681. The child was charged under s.20 Offences Against the Person Act 1861, unlawful and malicious wounding. The Divisional Court quashed the conviction though 'maliciously' meant intentionally or recklessly; this was not 'reckless' in the sense given to that word in Caldwell. At common law, it applied to the offence of manslaughter, which, until 1994, could be committed ‘recklessly’, but the House of Lords decision in R. v. Adomako (1994), means that we now apply a test of gross negligence.
Strict liability offences where the prosecution does not have to prove mens rea in regard to one or more elements of the offence. 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.
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. v. D.P.P.; sub nom. R. v. Hyam (1975). 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).
On the query of moral evaluation, two contrasting positions have been urged, and they have been phrased the subjectivist and the objectivist.
The consequences are not important for moral blame. By way of contrast, the objective view treats the consequences flowing from conduct as part of the act itself, and considers any division between act and consequences as unpersuasive. For the objectivist, the consequences must be taken into account when considering moral liability. (A. Ashworth)
Yet Baroness Wootton stated “mens rea has got into the wrong place. Traditionally, the requirement of the guilty mind is written into the actual definition of a crime. No guilty intention, no crime, is the rule.
In conclusion, to the above discussions, it would be obviously insufficient for a legal system to have a solitary offence stating that anybody who performs in a way that is opposing to the good of society may be liable to conviction and sentence of up to life imprisonment. Its communicative purpose would be unbearably vestigial, its censuring purpose would be terribly unclear, and the discretion left at the sentencing phase would bestow vast power on the courts on what would then be the key issue. This proposes that a rule of reasonable classification should develop part of a system of criminal law, so as to guarantee that each crime is distinct and considered in a way which expresses the relative seriousness of the offence, and which limits the court’s sentencing abilities suitably.
