• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Recklessness & Intention - Critically assess the meaning of the term 'reckless' in criminal law

Extracts from this document...

Introduction

J.Suliman Recklessness & Intention 1. Critically assess the meaning of the term 'reckless' in criminal law. Recklessness is the taking of an unjustifiable risk. There are two levels of recklessness. First, 'subjective' recklessness; this is where the defendant realises that a risk may arise if a certain action is taken, and in spite of this he takes that action and ignores the consequences involved. Second, 'objective' recklessness arises when it is obvious to all that a reasonable prudent person would have realised that there was a risk, so the fact that the defendant may not have even considered whether there were any risks is irrelevant (as a normal person would have in that situation). The idea of subjective recklessness ties in more readily with the policy of punishing someone for something she is morally responsible for, as it takes into consideration the state of mind of the defendant. The concept of objective recklessness, on the other hand, ignores the defendant's mental state, and this could lead to an injustice as some people who are mentally sub-normal (but not insane) ...read more.

Middle

However, the defendant would not be convicted if he had wrongly inferred that there were no risks which would have probably also been the conclusion of a reasonable person. This is named the 'Lacuna' of the Caldwell test. Caldwell recklessness now mainly applies to criminal damage, partly due to the injustice that arises in some cases e.g. Elliot V C (1983), where a normal prudent person cannot be compared to a person with completely different characteristics who may not realise the consequences of her actions. A possible alternative method of testing recklessness which would overcome the criticism of unfairness in the current objective Caldwell method, would be to compare defendants to other people with similar characteristics e.g. age, sex and mental ability as opposed to reasonable prudent men. 2. What problems have the courts found in attempting to define intention and how satisfactorily have they been resolved? Intention is the highest level of mens rea. It is also referred to as specific intention. ...read more.

Conclusion

A child died in the fire. The Court of Appeal suggested that juries ask themselves two questions. One, how probable was the consequence, which resulted from the defendant's voluntary act? And two, did the defendant foresee the consequence? The jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that the consequence was a virtual certainty as a result as a result of the defendant's actions and that the defendant appreciated that this was the case. Finally, the last case that put an end to all this confusion was Woollin (1998). The defendant threw his three-month-old baby towards the pram, which was against the wall some three feet away. The baby suffered head injuries and died. The Lords approved of the direction in Nedrick, provided the word 'infer' was changed to 'find'. However, the House of Lords disapproved of the use of the two questions in Nedrick. It seems that the courts have finally settles on a test for oblique intention, and therefore, is perceived to have been successful in finally finding a definition for this indirect intention. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Law of Tort section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Law of Tort essays

  1. Marked by a teacher

    Discuss the extent to which discrimination is prohibited under English and Welsh law (25 ...

    5 star(s)

    Article 9 of the European convention on Human rights as incorporated into domestic law under the Rights Act 1998 can also enforce the right to religious freedom, the old law of England and Wales only used to protect Christians or Blasphemy.

  2. Marked by a teacher

    "The Nedrick/Woolin direction on intention manages to produce a clear distinction between intention and ...

    4 star(s)

    This had been illustrated in the cases of Yip Chiu-Cheung v R11 and R v Latif12 where the Nedrick/Woollin test for oblique intention would not make allowances for those whose 'motive for pursuing their primary purpose is morally inconsistent with the mens rea for the offence'13 An example given by

  1. Consider the meaning and importance of fault-based liability in English law

    damages to the claimant, primarily in respect of the employer for the torts of the employee. Obviously it would be in the claimant's best interest if they could obtain damages from a large employer for the actions of an individual employee.

  2. What is the meaning of intention in English criminal law? Is it always possible ...

    will not think he has failed if the person survives.[3] Thus the defendant's true 'purpose' in acting may be more easily discovered. In Steane [1947], the defendant had been compelled, through concern for the sake of his family, to make broadcasts for the enemy during the Second World War, and

  1. UNIT3 ASSIGNMENT4 LAW OF TORT

    for the Ken to prevent the interference or avoid it, as Ken was aware that toxiclear lorries had been present on his land. And if it could be shown that a Ken was operating a plant which constitutes as a nuisance, and with the expenditure of a reasonable sum avoid

  2. Jenny had an argument with her boyfriend, David, which resulted in David throwing Jenny ...

    Battery involves the application of unlawful force and the mens rea is either intention to apply unlawful force or Cunningham recklessness as to the application of unlawful force. The injuries covered by this offence are slight so that the cuts and bruises caused by the push may be covered by this offence.

  1. CRIMINAL LAW

    The question is, is it sufficient to constitute 'novus actus interveniens' to enable the law to say Tom is not legally liable to have caused Sara's death. The test that would be applied here would be the Smith's test - was the injury that resulted from Tom's act the operating

  2. In this report, the differences between contractual liability and tortuous liability are explained. In ...

    put themselves at risk as a result of committing a heroic act?. Therefore, Sam?s employer is not liable for his injury concerning to his health and safety. Conclusion: Anthony and Maria are liable for the injury of Sam and the death of Hugh.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work