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“The case of Caldwell is unduly harsh in its effects, but has increasingly become irrelevant to the law on recklessness”. How far do you agree with this statement? Give reasons for your answer.

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Introduction

"The case of Caldwell is unduly harsh in its effects, but has increasingly become irrelevant to the law on recklessness" How far do you agree with this statement? Give reasons for your answer. The case of Caldwell has had a major impact on the law on recklessness. Before Caldwell, it was generally agreed by case law and by academic opinion that the test for recklessness was subjective: i.e. the defendant must himself have realised the risk. It was not an objective test based on the standards of the reasonable man. Any liability based on those objective terms was classed as liability for negligence. This was known as Subjective recklessness, or Cunningham recklessness. For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. In Cunningham (1957), the defendant tore a gas meter off the wall of an unoccupied house in order the steal the money. The gas was left gushing out and it seeped into the neighbouring house where it was breathed in by the victim who was nearly gassed. The defendant was charged under s.23 Offences Against the Person Act 1861, which involves maliciously administering a noxious thing so as to endanger life. ...read more.

Middle

In essence, Diplock's rationale was founded firstly on the premise that there is no difference in moral culpability between the defendant who adverts to a risk and the one that does not. Secondly he suggested that it was not a practicable distinction for use in a jury trial. The answer to the first seems to be that moral philosophy clearly draws a distinction between the deliberate risk-taker and the person who fails to appreciate that there is any risk. There must be a distinction between those capable of observing certain standards and those who did not possess that capacity. 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) where the accused was a 14-yr old girl in a remedial class at school. She had gone out with an older girl, hoping to spend the night at her house. Unable to do so, she stayed out all night. At about 5 am she poured white spirit on the floor of a garden shed, lit it and it flared up out of control. The shed was destroyed. The magistrates, considering her age, understanding, lack of experience and exhaustion, considered that the thought of risk had not entered her head. ...read more.

Conclusion

test of what constitutes an obvious and serious risk might be 'in the circumstances, should the defendant (given such characteristics as age, or any mental incapability) have realized there was a risk? This would ensure that blameworthy thoughtlessness would insure liability, but would exclude the unfairness of cases like Elliott. Caldwell recklessness is often criticised, as we can see from the title of this essay. The critics believe that the test does not make a distinction between the person who knowingly takes a risk and the person who gives no thought to whether there is a risk or not. They believe that since the case of Caldwell there is now a substantial overlap between recklessness and gross negligence. Before Caldwell, there was an obvious difference: recklessness meant knowingly taking a risk; negligence traditionally meant unknowingly taking a risk of which you should have been aware. Caldwell recklessness clearly comes very close to negligence. 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. As the law currently stands concern has been expressed that the higher Cunningham standard is applied to rape and the lower Caldwell standard is applied to criminal damage. This means property is better protected than people are. Caldwell's relevance on the law of recklessness is diminishing, as the test has been considerably restricted in recent years. ...read more.

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