Until 1981, the leading authority on recklessness was R v Cunningham [1957]. The defendant was charged under section 23 of the offences Against the Persons Act 1861

So to establish criminal liability under the Cunningham test the prosecution must prove that the accused not only undertook an unjustifiable risk but also was aware, at the time of undertaking, that it was an unreasonable one. With this in mind, then failing to think about a risk would not be grounds for criminal liability. An illustration of this can be seen in the decision of Stephenson [1979] QB 695, where the defendant lit a fire to warm himself in a haystack in which he was sleeping. He was charged with reckless arson but due to his schizophrenic nature and condition, he was judged not to have been able to foresee or recognize the risk and the conviction was quashed. Lane LJ stated, “we wish to make it clear…that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind…the schizophrenia was on the evidence something which might have prevented the idea of danger entering the appellant’s mind at all.” Conversely a defendant cannot consciously close their mind to an obvious risk, nor can they rely on a ‘heat of the moment’ defence. In Parker [1977] 1 WLR 600, the court rejected the defence that the accused was too angry to think clearly. Although not at the forefront of his mind he must have had some idea of the consequences of his actions due to the breakable material of the telephone receiver.

Parker teeters on the edge of advertent recklessness, bringing us closer to what was to become known as inadvertent recklessness. The case of MPC v Caldwell, was to create a much wider test for recklessness. An ex-employee of a hotel had a grievance against its owner. One night he got very drunk and set fire to the hotel. Caldwell was charged on two counts. The first, to which he pleaded guilty, was of intentionally or recklessly damaging property belonging to another contrary to section 1 of the Criminal Damage Act 1971 but he pleaded not guilty to the more serious offence of damaging property with intent to endanger life or being reckless as to whether life would be endangered contrary to section 1 (2) of the 1971 Act. The core of the Caldwell decision and Lord Diplock’s model direction was “the extension of ‘recklessness’…to include a failure by the accused to advert to the obvious risk inherent in her actions.” The reasoning behind the decision was to help juries in the deliberation process. The distinction between awareness and unawareness of risk is such a fine line that it may be impossible to decide but the introduction of an objective element would make this process much easier. Diplock also stated that a person who gives no thought to the foreseeable risk is no less morally culpable than the person who sees the risk but none the less knowingly takes it. Lord Goff took a similar view in Reid, “it is an unattractive option to acquit a defendant who did not consider the risks because he was too drunk, too temperamental, or too uncaring a person to bother thinking about them.”   

In many circumstances this objectivity seems rather unfair, surely if the defendant is genuinely unable to appreciate a risk, he cannot be held to be reckless in creating it. “The problem is clear to see: to consider a person who possesses the relevant cognitive skills blameworthy-and reckless-when she fails to give thought to a risk which would be obvious to the ordinary, prudent person, is one thing; to so consider a person who altogether lacks these skills and who would in all probability fail to appreciate the risk even if she did give thought to it, is quite another.” Evidently this could lead to injustice, as in Elliott v C [1983] 1 WLR 939 DC, even if the defendant had given any thought to the matter the obvious risk would not have been apparent to her due to her low intelligence and age. Goff LJ expressed his unhappiness at being bound to the precedent set by Caldwell. It is for this reason that Lord Diplock’s decision was to receive much criticism and finally in R v Gemmel [2003] UK HL 50, overruled altogether.

Over the course of this essay we have seen that recklessness in the legal sense is far from straightforward. In the last couple of years the law has come full circle from the objective test back to the subjective. In the context of the statement “recklessness indicates the wanton indifference of an accused to the consequences of his or her actions”, Caldwell recklessness comes closest to this meaning as it sought to punish those who, for whatever reason, had given no thought to the possibility of a risk existing. As it stands for the moment the prosecution must be able to prove that a defendant has subjective mens rea, as Lord Bingham stated in R v Gemmel, “it is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if…one does not genuinely perceive the risk.” It is important to note that deliberately closing ones mind to the possibility of a risk cannot excuse criminal culpability. An individual will be held to be recklessness if they are aware of a risk, but putting their own interests above others, choose to run that risk anyway. Lord Bingham went further in R v Gemmel to define recklessness in respect of criminal damage based on the definition in the Draft Criminal Code, cl 18(c), 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 is aware of a risk that it will occur; and it is in the circumstances known to him, unreasonable to take the risk. It is submitted that this subjective definition of recklessness ought to be applied in all statutory offences of recklessness unless Parliament has explicitly provided otherwise.” 

   

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