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