Recklessness is a problematic area of the criminal law.

A final point of difficulty is that of ‘the reasonable person’ versus the defendant himself.  In other words, an actus reus may seem obviously reckless to an ordinary person, but would this necessarily be the case for the defendant in question?  This is problematic throughout many areas of the criminal law, but the classic example for recklessness specifically is that of Elliott v C.    The Divisional Court ruled that the defendant was guilty as the risk only needed to have been obvious to ‘the reasonably prudent person.’  Unhelpfully, the court did not define who the reasonably prudent person was, but one is to assume it is the normal person on the street.  This is awkward since the defendant may have incapacitating conditions, such as C’s educationally sub-normal status in the afore-mentioned case.  This precedent has not been adhered to rigorously in other areas of criminal law, especially with regard to provocation in reducing murder to voluntary manslaughter (See, for example, R v Smith.)  

The courts have defined recklessness as falling into two main types – Subjective or Cunningham recklessness and Caldwell recklessness – which further emphasised the ‘reasonable person’ problem.

Subjective recklessness comes from the case of Cunningham in 1957.   The defendant planned to steal money from a gas meter in an unoccupied house, but in doing so, fractured a pipe transporting dangerous gas.  The gas was diffused and spread to the neighbouring house, where the defendant’s mother-in-law inhaled it.  Cunningham was initially convicted of maliciously administering a noxious thing so as to endanger life, but ‘maliciously’ was defined as ‘wickedly’ by the judge.  The conviction was therefore overturned in the Appeal Court, who stated that ‘malice’ related to an actual intention to commit the actus reus, or foresight that such a consequence would result from his action, and his taking it anyhow.  It was felt that the word ‘malice’ had connotations of ill will, which were not present in this case.

It should have been left to the jury in Cunningham to decide whether the defendant had foreseen the potential harm in breaking the meter, so the judge’s instructions were mis-directions, but for the purposes of establishing what recklessness is, the important part is what the Appeal Court said the test for recklessness was.

Caldwell is an objective test for recklessness, resulting from a 1982 case.   It redefined recklessness from any precedent that had gone before, since the case was ultimately taken to the House of Lords who are not bound by the doctrine of precedent.

In this case, the defendant drunkenly set fire to the hotel belonging to someone whom he did not get on with.  The fire was discovered before anyone was hurt or any serious damage done, and Caldwell was charged with two counts of arson – the first of intentionally or recklessly damaging property, and the second of damaging property with intent to endanger life or recklessness as to whether life was endangered.  He pleaded guilty to the first charge, but claimed that his drunkenness precluded any thought of potential injuries and fatalities, therefore making him not guilty of the latter.

However, the defendant was convicted on both counts, after a direction from the judge that drunkenness was not a defence to crimes of basic intent.  The case was ultimately brought to the Lords, who upheld this conviction, stating that an act is reckless if it creates obvious risk and also if thought has not been given to whether act was reckless when, if thought had been given, it would have been obvious that a risk existed.

A problem arose as their Lordships again did not state whom the risk had to be obvious to.  Instead, they extended the perceived meaning of recklessness to encompass the fact that an accused may not have given thought to the possibility that his actions were reckless.  However, Lord Diplock, who delivered the judgement, appeared to contradict himself, according to Allen.   Allen points out that at page 354 Lord Diplock appeared to be suggesting that the risk should be evident to the defendant, but slightly earlier, he adds the important point that someone is also reckless if they have failed to have given thought to the risk.

Caldwell is an objective test in the sense that, unlike in Cunningham, a case is tested not on what the defendant foresaw as a potential risk, but what he ought to have foresaw.  This brings in the argument of what type of person would foresee the risk.  The general interpretation is that of ‘the ordinary prudent person’ but, as stated above, this can be problematic in itself and there is still no definitive explanation of whom such a person may be, particularly in cases relating to recklessness.  However, it would seem that the ruling in Elliott v C (see above) remains the law.  In Coles,  which eventually reached the House of Lords, the opportunity arose to overrule the judgement in Elliott v C, but it was decided against this.

Nonetheless, the case of Hardie,  which came after Elliott v C, seems to contradict the judgement of the latter.  Hardie became intoxicated after taking valium, believing them not to be dangerous.  While under this influence, he set fire to his ex-girlfriend’s house, with her in it.  Originally convicted, Hardie appealed and his conviction was quashed on the grounds that in itself, the taking of valium was not reckless.  This is contradictory because his actual mental state was considered, which was not the case in Elliott v C.  Elliott v C, though, still seems to be the accepted legal position.

The case of Reid  amends the Caldwell judgement slightly.  Essentially, Reid states that the accused is guilty if he fails to consider the likelihood of harm, where a risk was obvious (in keeping with Caldwell), but adds that for guilt to be established, he must have had no good reason for not seeing the risk.  For example, a ‘good reason’ may include sudden distractions or acute illness – if the defendant acted in such circumstances, he should not be found guilty of recklessness.  Otherwise, he can be.

Shimmen  brings yet another dimension to the already complex law on recklessness.  It asks, “how far should the accused have to go to eliminate the risk?”  Shimmen was tried in the Divisional Court after breaking a window, in which he attempted to demonstrate a karate kick to friends.  He claimed he had minimised the risk of breaking the window as he thought at the time that he had stood far enough away from it.  The court ruled, however, that he was guilty of criminal damage since he had foreseen the risk and taken it anyway, despite his claims.  Allen  points out that the legal position would see to be that if the risk has “…no social utility…there would be no justification for running such a risk.”

The problem is, that if the defendant sees no risk in his actions, under Caldwell he will be found not guilty.  There are arguments that this rule should have applied in Shimmen since the defendant believed, having taken what he thought were adequate precautions, that the risk was virtually non-existent.  It is difficult to draw the line between believing there to be no risk, and believing the risk is extremely minimal.

Having analysed all of the above facts and cases, it is clear that the law on recklessness can be very problematic and often contradictory.  Many people, therefore, believe it needs to be reformed.

This would be a mammoth task, as there are so many awkward issues, but in the end it would simplify things for everyone who has dealings with the law on recklessness.  The Law Commission have therefore been engaging in drafting ideas and putting potential conceptual reforms into their working papers and reports.

In their report The Mental Element in Crime,  the Law Commission sought to clarify some of the linguistic issues that resulted in dilemmas within the law on recklessness, while the report Offences of Damage to Property  endorses Cunningham – of course, this can be a problem in cases where Caldwell is used.  Cunningham is usually used in cases where the perpetrator of an actus reus acts maliciously, so this does not necessarily conflict with Caldwell.

The Criminal Damage Act 1971 was partly as a result of the Law Commission’s Offences of Damage to Property report, therefore endorsing the Cunningham rules in legislative form.  However, despite this statutory development, there remains no strict definition of recklessness, or explanation of the issues surrounding it, in substantive legislation.  This ought to be dealt with to clarify and simplify all the issues that surround the law on recklessness.  It would make judicial interpretation less time consuming and more uncomplicated that sifting through mountains of case law.

In conclusion, the law on recklessness is problematic due to the vast range of factors that must be considered when deciding if an act is reckless or not.  Also, judges vary and so will direct juries with their own construal, potentially making two similar cases have very different outcomes.  All legislation is open to judicial interpretation through the Golden and Mischief Rules, but these are even easier to apply when the only rules are set down via case law, since this is less definite than statutory concepts.

On the other hand, it would be vastly difficult to make statutory provision for all potential problems within recklessness, and the legislator may well feel the judiciary copes perfectly well with elucidating the case law.  The Commons will often have more pressing matters to deal with.  However, in the long run, statutory definitions of all that constitutes recklessness, and explanations of issues surrounding the topic, would be most useful, and save the judiciary time and money.

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