Recklessness. This essay will deal with how the complicated subject of recklessness has developed throughout the past century. It will consider how and why recklessness was first used, and will then go on to discuss how it went through different eras of s

Cunningham recklessness was accepted as being applied in offences of Damaging Property under the Malicious Damage Act 1861. The Law Commission in their report on Criminal Damage made proposals for the reform of law, but they considered in Cunningham that the mental element was suitable. There were only proposing for it to be made simpler, and with more clarity, and that this could be done by using intentionally or recklessly, instead of maliciously. 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 Lawrence, that where the statute uses reckless, a different test should apply.’ 

Cunningham recklessness was the accepted definition of recklessness, until a decision by the House of Lords in the 1980’s to move in the direction of objective recklessness is some offences.

After the decision in Cunningham, came the case of Caldwell. The defendant was found guilty of causing criminal damage with intent to endanger life or being reckless as to whether life would be endangered under s1 (2) Criminal Damage Act [1971]. When the case reached the House of Lords, Lord Diplock changed the law on recklessness by stating that the form of recklessness used in the case of R v Cunningham was only intended to help understand the meaning of the word maliciously which was used in the old statutes. He argued that the old meaning in Cunningham was not relevant to the 1971 act.

Lord Diplock believed that there should be a wider test for recklessness and decided that a person would be reckless under the Criminal Damage Act [1971], if he does an act which creates an obvious risk that property will be destroyed or damaged, and when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless went on to take it.

This new test that was proposed by Lord Diplock established a new type of recklessness which is called objective recklessness. Under objective recklessness, the risk of the defendant's actions are seen through the eyes of a reasonable man', rather than through the eyes of the defendant, as is the case with subjective recklessness.

Caldwell only established an objective test for recklessness for Criminal Damage cases, but Lord Diplock intended to judge all recklessness according to this test. He said that subjective recklessness had served the purpose for which it was intended and that it was not helpful to sort recklessness into subjective and objective, it should be completely replaced with objective recklessness. However, this received a wide number of criticisms from Professors John Smith and Glanville Williams, as well as a number of judges.

In Caldwell, Professor Kenny said that a person is reckless, ‘if he does an act that creates an obvious risk that property would be damaged, and when he does that act he gives no thought to the possibility of their being any risk, or he realised there was some risk but he still took it.’

Therefore, it means that there must be proof that the risk taken was an obvious, and serious, (which was decided on the same day in the definition of Lawrence) risk.

This created a test which was much differentiated to the one in Cunningham. This was because it was enough for a conviction to be made under the Caldwell test, where a reasonable person would have seen the risk even if the defendant did not, or furthermore the defendant could not see the risk because of some limitation in his capacity.

This meant that there was inconsistency in the direction, such as to whom must the risk be obvious? And was it always necessary for the risk to be obvious to a reasonable person? This created an uncertainty, and questions were asked as to whether there was a loophole or lacuna, so that the defendant would not be reckless if he had taken into consideration the issue and came to a conclusion that there was no risk.

Furthermore it created uncertainties in the case of W(a minor) v Dolbey, were shooting a rifle gun without taking into consideration that it was loaded, could result in different convictions under Caldwell and Cunningham.

In future cases, such as Parmenter, convictions of malicious wounding have been quashed because the judge has misdirected the jury, by taking the words of Lord Diplock ‘should have foreseen’ out of their context in Mowatt.

A deliberate closing of the mind to a risk’ could be reckless within the subjective definition. This creates uncertainty because it seems to suggest that if the defendant is aware of the risk, but attempts not to consider it. (R v Parker) then they will be seen as being reckless.

In 2003 in the case of R v Gemmell and Richards the House of Lords decided to abolish Caldwell recklessness. Lord Bingham stated that ‘Caldwell recklessness infringed the important principle that a person was only guilty of a serious crime if they had a guilty mind’

He went on to state that it is not blameworthy to do something involving a risk of injury to another if the defendant does not foresee the risk. Instead Lord Bingham said that they could be fairly accused of stupidity or lack of imagination, but they should not be liable to be convicted of a serious crime, or a risk of punishment.

Lord Bingham decided that parliament's intention (based upon the Law Commission's report) was that the term reckless should be given a subjective test. He felt that the House of Lords had fallen into an ‘understandable but demonstrable error’. However, Lord Bingham felt that on this occasion it would be right to overrule the past precedent.

He stated that recklessness was susceptible of creating unfair results. His argument stated that it is not morally just to convict a defendant based on what another would apprehend if the defendant himself did not have this apprehension of any sort. He highlighted that particularly children should not be punished on the strength of what someone else would apprehend.

Lord Steyn backed this up with reference to the United Nations Convention on the Rights of The Child. There was aggravation here because when deciding whether the risk was obvious, the jury under Caldwell recklessness had to consider whether it was obvious to a reasonable person and not if it was obvious to the defendant.

Another fault found in Caldwell, and thus another reason for the abolishment of Caldwell recklessness was that the decision in Elliot v C (a minor), where a fourteen year old with learning difficulties was convicted. There was a cloud of doubt placed over this conviction because it was seen as harsh because the risk may not have been obvious to a person of her age and someone of her circumstances. Thus, Lord Steyn stated ‘it is one thing to punish a defendant for failing to foresee a risk that he should have foreseen, but to do so is only fair in cases where a defendant could have foreseen the risk’.

All this means that the current law on recklessness comes from the leading case of R V Gemmell and Richards which states ‘A person acts recklessly…with respect to- (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstance known to him, unreasonable to take the risk’

It is clear then that in recklessness the defendant ‘must foresee that the particular kind of harm might be done and yet has gone on to take the risk of it’.

Conversely there are still a number of cloudy areas as to the current law on recklessness.

The first being that Lord Bingham has stated that if the defendant is voluntarily intoxicated, and fails to foresee a risk, then she will still be acting recklessly. However, many questions have been asked of Lord Bingham as to why voluntary intoxication is singled out as being a criminally liable reason for failing to see an obvious risk.

 ‘In cases requiring malice, it is not sufficient that if the defendant had stopped to think, it would have been obvious to him that there was a risk. He must actually know of the existence of the risk, and deliberately take it.’

To conclude, the law of recklessness has developed a lot since it was first used in Pembliton to define the term maliciously. With Cunningham it made an area of law which was through the eye of the defendant, commonly known as being subjective. However in 1982 the case of Caldwell, the House of Lords decided that recklessness should be decided objectively, meaning through the eyes of a reasonable man. However this received much criticism and was only applicable in Criminal Damage cases.

But in 2003 in the case of R v G, Caldwell was overruled, and the new recklessness was to be used for all offences.

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