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Recklessness (criminal)
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In the criminal law, recklessness (also called unchariness) is one of the four possible classes of mental state constituting mens rea (the Latin for "guilty mind"). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus, i.e., a person cannot be guilty for thoughts alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time (see concurrence).
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Encyclopedia
In the criminal law, recklessness (also called unchariness) is one of the four possible classes of mental state constituting mens rea (the Latin for "guilty mind"). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus, i.e., a person cannot be guilty for thoughts alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time (see concurrence). Recklessness may constitute an offense against property or involve significant danger to another person.
Definition of terms
Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
- subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
- objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements, although R v Gemmell and Richards deprecated this in the UK; or
- hybrid, i.e. the test is both subjective and objective.
The most culpable mens rea elements will have both foresight and desire on a subjective basis. Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because he or she is gambling with the safety of others and the fact that the accused might have taken some steps to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness. Hence, the alternative phrase "wilful blindness" acknowledges the link representing either that the accused deliberately engineered a situation in which he or she was ignorant of material facts, or that the failure to foresee represented such a danger to others that it must be treated as though it was reckless.
American Law
Black's Law Dictionary defines recklessness in American law as "Conduct whereby the actor does not desire harmful consequence but...foresees the possibility and consciously takes the risk," or alternatively as "a state of mind in which a person does not care about the consequences of his or her actions." Black's Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American courts, a wrongdoer who recklessly causes harm can be held to the same liability as a person who intentionally does so.
English law
The modern definition of recklessness has developed from R v. Cunningham (1957) 2 AER 412 in which the definition of 'maliciously' for the purposes of the Offences Against The Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law:
- In any statutory definition of a crime, malice must be taken ... as requiring either:
- an actual intention to do the particular kind of harm that in fact was done; or
- recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
The current test in England and Wales is one of subjective recklessness.
R v Caldwell (1982) 1 AER 961
Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer's hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life.
In English law, the offence of "arson" was abolished in the Criminal Damage Act 1971, although the use of the word was retained to express the particular "horror" with which the public views offences involving the deliberate use of fire. Caldwell was convicted under s1(2) Act 1971, which requires that the defendant shall:
intend to destroy or damage any property or be reckless as to [the same] and
intend by the destruction or damage to endanger the life of another or be reckless as to whether the life of another would be thereby endangered.
The House of Lords was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of specific intent and basic intent (see intention), the latter would encompass recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness. Although the discussion of recklessness tends to be largely obiter dicta, Lord Diplock's discussion contains what was intended as a model direction, namely that a defendant is reckless when:
he does an act which in fact 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 has nonetheless gone on to do it.
To that extent, the test is one of obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be taken to have foreseen it. But the focus of this test is the nature of the defendant's conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to act after deciding (wrongly as it would later appear) that no risk existed? In Elliot v C (a minor) (1983) 2 AER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action but the court reluctantly followed Caldwell. In the broader context, the Road Traffic Act 1991 reformed the offence of reckless driving by reverting to the old terminology of dangerous driving, i.e. apparently replacing a mens rea requirement with a fault element requiring dangerousness (see death by dangerous driving for the statutory version of a test of obviousness). In the continuing judicial debate, Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case), that an absence of something from a person's state of mind is as much part of his or her state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. Lord Keith stressed that Lord Diplock qualified the model direction as "an appropriate instruction" only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights in cases involving a minor or other person's of reduced capacity. The requirement is that "everyone is entitled to a fair and public hearing". But, to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes strict liability. However, Z and others v United Kingdom (2002) 34 EHRR characterises Article 6 as procedural rather than substantive. It is also to be noted that after much criticism, the decision in R v Caldwell (1981) was overruled by the House of Lords in the case of R v G (2003).
Caldwell-style recklness (an objective test) was phased out after the case of R v G (see below), which introduced a form of subjective recklessness to cases involving criminal damage. The majority of mens rea of recklessness is now 'tested' using the Cunningham test.
R v G and Another [2003] 1 Cr App R 21
Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers which they had found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out and said they gave no thought to the risk of its spreading. When their appeal reached the House of Lords, Lord Bingham saw the need to modify Lord Diplock's definition to take account of the defence of infancy which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong". The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts 'recklessly' with respect to:
a circumstance when he is aware of a risk that it exists or will exist;
a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."
This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding. Nevertheless, the test remains hybrid because the credibility of the accused's denial of knowledge and understanding will always be judged against an objective standard of what you would expect a person of the same general age and abilities as the accused to have known.
In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian's conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.
See also
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