Discuss in the context of Criminal Law on the reasonableness and the defense given when the term Clapman Omnibus(TM) is used should a defendant commit an offence

Authors Avatar

Introduction

The standard of reasonableness in law is refer as the ‘reasonable man’ standard in which it defines reasonable man as ‘a man in street’ or ‘a man on the Clapham Omnibus’. It basically refers to ordinary English people of either sex. This reasonable man standard was developed through common law and is use as a defense to the defendant should the wrong been done. This standard is adopted in criminal law, contract law and also tort law.

One of the earliest developments of the reasonable man standard can be trace back to the 1837 in the case of Vaughan v. Menlove. The court ruled that the better test for the reasonable standard would be whether the defendant had show regard to caution such as a man of ordinary prudence would observe, as it is a less subjective test.

Definition

The reasonable man standard thus is concluded that it should be what action would be taken by a reasonable man given that situation by using his reasoning ability. As per the definition of reasonable, it is regarded as fair, proper or moderate having regard for the circumstances. The ability of reasoning is referring to the faculty of comprehending, inferring, or distinguishing especially in a fair and orderly way or could be specified as the proper and sane exercise of the mind. 

Objective and Subjective Test

As per mens rea there are two types of tests available for the standard of reasonableness, which is the objective and subjective test. In the objective test, it requires to decide the state of mind of a reasonable man in the position of the defendant at that particular situation. By using the objective test, the standard is base on the perspective of the reasonable man whether such risk was obvious foreseeable. There is no requirement to prove whether the defendant actually foresee or thought about the consequences of his action. The fact that the defendant had actually not come across this thought is not important.

The subjective test requires the case to be look from the perspective of the defendant. It take into account what has the defendant actually foresee rather than what is been done. The state of mind of the defendant at the point of crime must be proven.

Cunningham Recklessness

Recklessness is defined as taking an unjustified risk. It means that one is consider as reckless if he could foresee the consequences of his act yet continue taking the risk by conducting his action. It has been long debated whether recklessness should be access objectively or subjectively. The original definition of recklessness was base on Cunningham which assesses recklessness subjectively. The court interpreted the word ‘maliciously’ in s 23 Offence Against Person Act 1861 as having an actual intention to do such harm which was in fact done, and having actually foresee that such harm might be done yet still continue conducting the act. In Cunningham, the defendant’s conviction was quashed base on the fact that he did not actually foresee his action would cause the gas to leak and endanger life. He had not intended to cause harm nor that had he been subjectively reckless. As per the judgement of Lane LJ in Stephenson, it was said that a man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. There must be knowledge or appreciation of risk of some damage entered the defendant’s mind even though he may have suppressed it or driven it out. In Stephenson, evidence given was the condition of schizophrenic may affect defendant’s ability of foresight on the risk of damage that he could done. The Court of Appeal quashed his conviction as what concern is whether defendant had foreseen the risk, not anything else.

Caldwell Recklessness

In 1981, an objective form of recklessness was introduced in Caldwell. This recklessness is determine is determine base on what the ‘ordinary, prudent individual’ would have foreseen rather than what the defendant has actually foreseen. In Caldwell, although the fire was put out and no serious harm was done, defendant was charged with arson with intend to endanger life or being reckless as to where life is endangered after he set fire to a hotel when he was drunk. Court ruled that a person is reckless if he does an act which create an obvious risk either he foresee or thought of possibility of there being such risk, or he recognised there was a level of risk however continue to take the risk. In summary, Caldwell recklessness does not require to prove the state of mind of the defendant, it suffices the test as long as there is an obvious risk in the view of reasonable man. The test was rather rigid as it excluded the condition of the defendant which might result in lower ability of reasoning. Thus in the 1990’s the courts started reject the Caldwell recklessness gradually and return to the Cunningham recklessness. In Spratt, McCowan LJ pointed out that from the history of interpretation on the Offence Against Person Act 1861, the court held that mens rea of every type of offence against the person covers both intend and recklessness, in the sense that taking risk or harm ensuing with foresight that it might happen regardless the presence of the word ‘maliciously’ in the sections. In Parmenter, it was held that there must be prove of either the defendant intentionally or he actually foresaw his act would cause harm.

Join now!

Restoration of Cunningham Recklessness

The Caldwell recklessness was overruled in the case of G and another, where two defendants age 11 and 12 left after burning paper and threw it into the wheelie-bin of a yard. The fire eventually spread to the buildings which cost approximate damage of £1 million. Neither of them foresaw the risk of destroying the property and genuinely thought the burning paper would extinguished themselves on the concert floor of the yard. It was held that the answer to the certified question

‘can a defendant properly be convicted under s 1 Criminal Damage Act 1971 ...

This is a preview of the whole essay