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

Consider the meanings of 'recklessness' in criminal law which give rise to this criticism indicating to what extent you agree with it.

Extracts from this document...

Introduction

RECKLESSNESS ESSAY "The Caldwell test fails to make a distinction which should be made between the person who knowingly takes a risk and the person who gives no thought to whether there is a risk or not" -SMITH AND HOGAN 1992 Consider the meanings of 'recklessness' in criminal law which give rise to this criticism indicating to what extent you agree with it. Proof of recklessness in law is sufficient to establish the mens rea for most criminal offences. There are two types of recklessness: subjective and objective recklessness. Recklessness is the taking of, and being aware of, an unjustifiable risk - that is one which is in no way beneficial to society and it is highly unlikely that a reasonable person would have taken that risk. However, the word had produced uncertainty because there is no statutory definition and judges have produced two meanings of recklessness for different crimes. It is often difficult for the prosecution to prove that D intended to commit the crime in question and for many offences, it is therefore not necessary to show a high degree of blameworthiness; it is sufficient to prove that D has been reckless as to whether the crime has been committed. The law has developed in such a way that there are now different tests for recklessness. One is known as the 'subjective' test and focuses on the question of whether D foresaw the risks of his conduct and the other test is 'objective' and considers the ordinary and prudent individual's foresight of risk. ...read more.

Middle

Two years later, Objective recklessness was derived in a 3 to 2 decision in the House of Lords, where Lord Diplock said that a person is reckless if he does an act which in fact creates an obvious risk and when he does the act he has either not given any thought to the possibility of risk, or that, realising the risk, he had gone on to take it. This was made clear in the case of CALDWELL (1981), where D got drunk one night and started a fire in V's hotel. It was dealt with but D was charged with arson under the Criminal Damage Act (1971). On the same day in the case of LAWRENCE (1981) the House of Lords again defined recklessness in the same way (under a different Act). In this case D had killed a pedestrian whilst riding at high speed on a motorcycle. Lord Diplock again reiterated his comments, but raised the point of the involvement of an ordinary prudent individual in recklessness. However, his comments seemed to require that the risk be obvious whether D foresees it or not. This cannot be the case: D who actually foresees a risk and takes it is reckless, it is irrelevant whether or not it was obvious. Indeed the definition refers to D having recognised there was some risk. The rationale for the redefinition of recklessness in CALDWELL was that a self-induced inability to appreciate risks should be no defence to crimes requiring recklessness. ...read more.

Conclusion

Furthermore, in Merrick (1996) it was held that where D creates a risk in the belief that subsequent precautions will immediately eliminate it, he does not fall within the lacuna since he recognises the risk and carries on regardless. The two tests are therefore available and it seems that the Cunningham test survives in rape cases while the Caldwell test is to be found in statutory crimes such as criminal damage and motor manslaughter. Glanville Williams and John Smith have condemned the decision and arguments of Diplock in CALDWELL and LAWRENCE as "profoundly regrettable". It is clear that Diplock's original intentions of finding those who are intoxicated reckless, but his defined objective recklessness leaves a lot open to interpretation. Subjective recklessness currently applies to offences against the person and secondary participation whilst objective recklessness applies largely to criminal damage. The Law Commission have a Criminal Law Bill (1993) and a Government Offences Against the Person Bill (1998) which clearly confirm subjective recklessness and they are proposed to be enacted and covering criminal damage. The existence of this Lacuna in the law may well allow some who are guilty to escape liability, but at the same time, it will prevent those who are not guilty from facing unjust liability. This is of course the golden thread of the English legal system as created in WOOLMINGTON, by which if ten guilty are freed for one innocent also being freed, then the sacrifice is one worth making. Aymen Mahmoud JA4 Law/JTH ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Criminal law 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 University Degree Criminal law essays

  1. Marked by a teacher

    Critically consider all arguments concerning spousal compellability and conclude whether or not it ...

    4 star(s)

    R v Registrar General of Births, Deaths and Marriages27 involved a marriage before the trial. The CPS asked the Registrar General to delay the marriage, the Registrar General refused and so the CPS sort judicial review for refusing to delay.

  2. Marked by a teacher

    Viscount Sankey's Golden Thread Speech

    3 star(s)

    In 'Practical Guide to Evidence'4 it states that 'it was incumbent on the defendant to satisfy the jury of his innocence, or of the existence of a mitigating circumstance'. Prior to the changes made by this case, murder was an exception to the rule that to establish guilt, you must

  1. Concept of criminal liability - revision notes.

    He asked aggressively. Locked the victim in a room. Tried to escape but fell out, suffered mental trauma. COA said, 'mental' would include this. COA said about Chan Fook: - 1. Trial judges should not normally elaborate on ABH. E.g. harm injury/actual = Not so trivial as to be significant.

  2. At common law, the prosecution were generally prohibited from mentioning the accused's bad character ...

    the credibility of the defendant and not as evidence of propensity, namely that he committed the crime. The Court of Appeal has held, however, that the use to which the evidence could be put depended upon the matters to which it was relevant rather than upon the gateway through which it was admitted.

  1. Critically evaluate the way rape cases involving intoxicated victims are handled in criminal law.

    This position was reinforced by Scarman L.J. in R. v Lang that 'the critical question is not how she came to take a drink, but whether she understood her situation and was capable of making up her mind'26. This is still the position under the current law, which poses the greatest problems in imposing liability for rape.

  2. Discussing Homicide - constructive manslaughter.

    Watkins LJ said that there would be a disease - therefore, a defence - 'If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses'.

  1. Recklessness. This essay will deal with how the complicated subject of recklessness has developed ...

    However, the commission failed to propose any definition on recklessness. 'The Court of Appeal, prior to 1981, held that 'reckless' in the 1971 act bore the Cunningham meaning, but in that year the House of Lords decided in Caldwell and Lawrence7, that where the statute uses reckless, a different test

  2. Law of Rape

    .or objects" is no longer valid and will not support a defence to a charge of sexual violation.32 It is noted that Australia and New Zealand have now broadened the meaning of rape so that the scope covers the introduction of the penis of a person into the anus

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