Reckless As The Risk example essay topic

Subject: Criminal Law Q 1. Caldwell [1982] AC 341 was, in its time, regarded as one of the most important of criminal law cases. Can it now be consigned to history? The case of Caldwell is considered to be one of the most important landmarks as it illustrates a turning point in how criminal recklessness is judged and sentenced This was because a new classification was created which did not restrict recklessness to subjective recklessness. This essay will discuss why Caldwell was important and whether in our modern day with the addition of newer cases this 1982 case should be consigned to history. Up to the decision of Caldwell, the prevailing approach of the courts was to limit recklessness, where it was referred to as an offence, but only in its subjective state.

This limit was set by the Law Commission in 1978, when it proposed that the test for recklessness was in subjective terms and was supported by The Criminal Law Revision Committee in 1980, whose Fourteenth report: Offences against the Person adopted the same meaning. In Cunningham, the court of Criminal Appeal approved the test, expounded by Professor Kenny in 1902. This states, .".. in any statutory definition of a crime, "malice" must be taken not in the old vague sense of "wickedness" in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (for example the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it) ". It is important to note that the brackets make it explicit that the quote is being used in its subjective sense. The subjective state of recklessness is only present in the conscious mind when someone undertakes an unjustifiable risk. So a subjectively reckless person would be someone who could foresee and identify the risk (s) that may follow as a consequence of his action and he nevertheless proceeds with his action.

If such a scenario as above can be found, intrinsic aspects such as being in a bad mood or uncaring towards the consequence, whether created as a product from the risk, materialise or not are made irrelevant and the charge of subjective recklessness will hold. It also follows that a person who consciously undertakes a risky exercise and is fully aware of the risks, but hopes the consequences will not be realised, is also considered to be subjectively reckless as the risk needed to create recklessness is simply any foreseeable possible risk that could occur. If in such a case, the foreseeable risk is virtual certainty, then the accused would be presumed to have intended the consequence to occur and there would be an overlap of concern between intention and subjective recklessness. However if one foresees the risk, in relation to a particular consequence not of itself sufficient to constitute subjective recklessness to that consequence, as with Caldwell, the risk would have to be unjustified. For example, in Reid, Law Lords, Keith, A ckner and Goff stated that undertaking a justified risk to avert an emergency would not be regarded as reckless. Such a case would have to be judged under generalisation and judged objectively.

It is noteworthy to point out that even in a subjective recklessness state, the concept of objectivity is present. As with this sort of case and normal procedure, the idea that objectivity is present in something subjective, which creates many questions, such as, how beneficial to the victim or society is it necessary that the accused achieve the "reckless goal"? The answer is that if the risk were so slight that an ordinary person, having considered the matter, would have taken it, the accused would not be reckless. An example of this is a surgeon fighting for a patient's life and having to undergo a rather dangerous operation with the potential of a lethal consequence. To clarify, a person acts with subjective recklessness if, when he carries out that act, he actually realises that the circumstance may exist, even providing it was unjustifiable for him to take the risk. The concept of recklessness in its subjective state has a much narrower scope than in its other sense.

In such offences when liability displaces recklessness then the term is constrained its subjective sense. However in Caldwell in 1981, a case concerning's 1 of the Criminal Damages Act of 1971, this subjective school of thought received a major upheaval. This was due to the unusual mens rea of the case, which under these circumstances are directed only in terms of intention and recklessness. Lord Diplock and speech lords, Keith and Roskill came to the conclusion that "recklessness" under the Criminal Damage act of 1971 should not be understood and used only in the sense laid out in "Cunningham". Lord Diplock stated that the word, "reckless" as stated in S 1 of the Criminal Damage Act, was an ordinary English word. It had not undergone a transformation and become a strict legal term with a restricted meaning in relation to the ordinary sense of the word.

This had a great impact as it would seem there was a risk of previous harmful consequences being ignored from one's acts which would have been acknowledged as existing. There also would have been a failing to recognise any such risks in circumstances where, if any thought had been given to the matter, it would have been obvious to identify the faults. To illustrate this point, Lord Diplock states that, .".. conscious risk taking and failing to give thought to whether there was a risk were equally culpable. This is questionable as a person who deliberately runs a risk would be regarded by most people as more blameworthy than a person who does not realise the risk". In response to this Lord Diplock gave the following model to direct a jury: "A person... is "reckless" as to whether or not any property would be destroyed or damaged if (1) he does an act which creates an obvious risk that property would be destroyed or damaged and (2) 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 has none the less gone on to do it".

Lord Diplock did indeed make this statement with the intention for it to be aimed at the offences of criminal damage, but it is clear that he also meant it in a more general way, to cover all the scenarios when the adverb, "recklessly" is used. This kind of recklessness termed as "Caldwell recklessness" by the House of Lords, can be expressed as: (1) "A person is Caldwell reckless as to a particular risk, which attends his conduct. If that risk which attends his conduct is obvious or either he has not given any thought to the possibility of there being any such risk or (2) he has recognised that there is some risk involved and has nevertheless persisted in his conduct". The second part of this model refers to subjective recklessness, as the model above has a hidden meaning. This is because the reference to "some risk" suggests the accused need not recognise the risk in question for it to be an obvious one. So one could conclude it is sufficient to qualify it as a remote one.

For example, in Reid, a case concerning a reckless driver, who caused a death, Lord Goff declared that the risk has to be an obvious one and is therefore not relevant to the second part of Lord Diplock's speech. Lord Goff, in response to this states, "I suggest that Lord Diplock's application of this requirement was due to a desire of brevity " (footnote: ). This statement was accepted to be the correct way of casting a judgement and is also supported by Lord Diplock's statement in Caldwell, which stated that: " [recklessness] includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was". Therefore, if we relate the above speech to Lord Diplock's general direction above, this statement is sufficient to satisfy the latter part of his model. The first part of the model is pure objective formulation and has been the subject of criticism. This is because the mens rea, being the lack of acknowledgement of a risk, can hardly be fair.

It could be thought of as the opposite, the state of an absent mind. However in operation the effect of this test is simple, if there was an "obvious" risk, and the accused committed a breach of the law, the accused can be convicted despite the absence of any thought such as any realisation that may exist on his part. It is later pointed out that a person would not have to be reckless, only to the point where the risk of harmful consequences were so slight that to a reasonable man after consideration of the risk would not be deterred from this task. The point is that to be Caldwell reckless, the risk must be of a great degree. To say this is not easy to understand in accordance with Lord Diplock's statement. The statement being "mens rea " is the state of mind of the accused, .".. it cannot be the state of mind of some non existent, hypothetical person".

It is interesting to note that the decision could easily be the subject of severe criticism, in which the interpretation of "reckless" in the Criminal Damage Act 1971 is at complete odds to the clearly defined views of the Law commission, who drafted the Act. It should be understood and employed in its subjective sense only. It is relevant to note that Lord Diplock did not comply with the Law Commission's views in his speech in Caldwell. This is because Caldwell recklessness has not yet met with unqualified judicial approval, but the concept was embraced by the House of lords in Reid. These comments from Lord Diplock were directed towards statutory offences in whose definition of the word "reckless" appears. Any doubts about whether he intended his comments to have a wider application appear to have been resolved in his remark concerning "Lawrence".

He stated that, "the conclusion of the majority in Caldwell was that the adjective, "reckless" when used in a criminal statute, i.e. the Criminal Damage Act 1971, meant Caldwell recklessness and that the same must be true of the adverbial derivative "recklessly". Lord Roskill in Seymour supports this statement, where he states that "reckless" should now be given the same meaning (Caldwell recklessness) in relation to all offences in which "recklessness" suffices unless Parliament has otherwise ordained. However, this statement was o biter dictum and is therefore not binding and does not completely effectively illustrate the condition. In cases where the accused has thought of his actions, Caldwell recklessness can be construed as harmful, where a person has thought about the task and has mistakenly concluded, the risk didn't exist.

For example, a person exceeding the speed limit on a motorway at three o clock in the morning, under the assumption that as it is so late no one will be there. Such a person has not actually given any thought to the risk or possibility of a risk existing and has carried on exercising his "risky" business. It is important to note that if the accused is aware of some risk involved, but persisted in his business, he is also Caldwell reckless. This is the scenario, where the "lacuna" or gap is present in the test for Caldwell recklessness, which is implicit in Lord Diplock's speech in Caldwell, as it is referred to his remarks in Lawrence. In this case, Lord Diplock held that "where a particular risk is obvious, the jury is entitled to infer that the accused was either aware of the risk or had never thought about whether it existed, but will displace the interference".

One can clearly understand from the latter part of this statement that if the accused wishes the jury or magistrates to consider the possibility of his case falling within he boundaries of the "Lacuna", he must present evidence that such a possibility could exist. Such cases involving the Lacuna have been recognised, for example in Reid and Coles. It is of interest to point out that a Lacuna has not yet been successfully implemented to secure an acquittal. If the accused did not give any thought to a possibility of a risk, it is generally irrelevant. For example, in Bell, a schizophrenic, who believed he was driven by god to ram other vehicles and property in a van. It was subsequently held that the accused had not given any thought towards possibility of a risk being present as god sent him.

His reason for committing the crime was made irrelevant because it merely gave the reason why the accused had given no thought to the risk. Only in the following circumstances can there be reasons for not giving thought to a risk, such as "If the explanation gives rise to the defence of automatism or other involuntary conduct " and if the failure to give thought was due to the accused being involuntarily intoxicated. A person is involuntarily intoxicated, for example, if he is intoxicated through taking a prescribed drug in a way which does not comply with medical instructions or through taking a non dangerous drug, like valium provided in either case that the accused was not reckless in becoming so intoxicated. This exception is surprising. Why should the explanation of intoxication through a non - dangerous drug be treated differently from other explanations for thinking (such as mental handicap or youth) which are irrelevant?

No answer has been given by the judges. It would seem that recklessness bears a wider meaning (i.e. Caldwell) in relation to offences of criminal damage and property than in cases of personal injury. The Law Lords have not explained why greater protection is given towards property than to persons Another result is that Caldwell recklessness as a concept has not yet had the expected effect, making it increasingly unlikely that it will be extended to other statutory offences specifying recklessness as mens rea. In conclusion, it may be said that recklessness is a general term, but it is essential in each case to establish the mens rea.

While Caldwell is a general guide, subsequent differing views in specific cases and examples, as given above, have manifested psychological and semantic contexts. With the proliferation of statutory offences, Caldwell recklessness appears not to suffice since the legislation attempts specificity. Nevertheless, the difference that Caldwell has made to the way in which cases are to be judged makes it indispensable in modern day law. If, "Caldwell recklessness" was consigned to history, the newer cases on recklessness could only be judged upon as subjective. The difference between the two distinctions is great. They are as valid as basic rules and it should, therefore, not be consigned to history.

Bibliography

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Textbook on Criminal Law, Blackstone Press, p 358-359. web Criminal Law Lecture Notes 123. J. Smith and B. Hogan. (1990).
Criminal Law, Cases and Materials, Butterworths, P 374-375... M. Zander. (1999).
Cases and Materials on the English Legal System', Butterworths, 8th edition, p 108 and p 110. R. Card. Criminal Law. (2001).