RECKLESSNESS IN CRIMINAL LAW

In criminal law, the term Recklessness refers to a mental state of a criminal during an act of crime was committed. In a criminal case, the court needs to find out whether the offender was aware of possible danger or recognized the risk of his action1. To be counted as a criminal activity, an action needs to have a motive, knowledge and intention by the person. Recklessness may compose as an offense against another human being with an intention to harm physically or an offense against property. In a case of recklessness, both actus reus and mens rea are required to be established.


ACTUS REUS AND MEANS REA


Actus Reus is a Latin word that means “guilty act” and it requires direct physical movement during a crime. This can be accomplished through physical action or threat of physical action. Also being failure to act in a situation, when the law requires action, is an act of Actus Reus. According to Dubber (2002) the three elements of Actus Reus are: circumstances, consequences and conduct and only these three elements construct the definition of crime perfectly other than any distinctive description.


Mens Rea is another Latin phrase that means, as said by Elizabeth (2003) “guilty mind”. The guilty mind is having an intention to commit an act which is recognized as a wrongful event by the person. In criminal law, motive is separated from intention2. When the defendant can rightly anticipated the dangerous outcome of his act but chose to do it anyway, it is recklessness. The terms actus reus (physical element) and mens rea (fault element) as mentioned by Fisse (1990) was adopted to reinstate the anonymity of the Latin terms with accurate and plain phrasing.


DEFINITION


Recklessness is considered as one of the four classifications of mens rea. From the finding of Best & Barnes (2d Ed. 2007) recklessness is something in between intention and criminal negligence. There are three tests to make an assessment in the court room to see whether the defendant had foresight the consequences of his acts but eventually went for it. The tests are:


  • Subjective: in this case, the court needs to be satisfied that the accused was predetermined to commit the act of crime and/or had harmful intentions during the act of actus reus


  • Objective: the court imputes that the elements of mens reacan be imputed on the accused with the decisions that a reasonable person with common sense and some general knowledge would have had the same mental elements in same situation


  • Hybrid: if the test is both subjective and objective


The subjective test is considered as the most efficient way to find a recklessness behavior. The most definitive fact to decide a recklessness act is when the court is confident that the accused was well aware of the harmful consequences of his acts but decided to commit it anyway by exposing the victim of the act in a situation that may put risk or cause suffering but did not actually desired to hurt the victim. Recklessness is considered as a social risk as the accused takes chances with the safety of others.


If the offender failed to foresee the negative consequences of his acts, it is gross criminal negligence, thus recklessness. Incorporated with this later one, the recklessness is also expressed with the phrase willful blindness, which describes that both cases when the accused were aware of the harmful outcomes of his actions but decided to do it anyway and when the accused failed to foresee the danger of his actions are treated as recklessness.


CRIMINAL LAW V CIVIL LAW


The criminal law vs civil law clearly differentiates the difference between negligence and intentions (i.e. recklessness). In general, as described by Dörmann, Doswald-Beck & Kolb (2003) and by Kaiser (2005), the act of negligence is not considered as an act of crime and the accused does not face punishment unless the nature of a particular crime carries out punishment. The normative or moral meaning of mens rea in criminal law vs civil law, maintains that the phrase is similar to a guilty mindset, for instance, a reason for holding the defendant accountable for their behaviour. As stated in the traditional civil liability definition, negligence is predicated on the action of "a reasonable person under the circumstances." The crucial issue is that neglect is founded on the error of ignorance not recklessness in criminal law vs civil law.


R V G AND ANOTHER [2003] UKHL 50


The case of R V G and another [2003] UKHL 50 is one of the most controversy cases in the history of English criminal law regarding recklessness. This case abolished the “objective” test of mens rea which was established for similar cases under R v Caldwell.


R V G and Another [2003] UKHL 50 Facts: Without permission from their parents, two boys of age 11 and 12 were camping and they set up fire with some newspaper on the back yard of a shop. The papers were still burning when they left the spot and eventually, the fire was spread to the rubbish bins which were standing by the wall of the store. At one point, the fire went through the roof of the shop and inside the store, damaging about £1 million. Ratio: in the House of Lords, Lord Diplock argued to consider of the defense of infancy that justify the concept mischievous discretion. According to this concept, children at age of eight or over are supposed to understand the difference between the acts of right and wrong. According to Lord Diplock, it is unfair to consider that the children of 11 or 12 years old will have the same standard as the adults with reasonable thinking.


Lord Bingham required modifying this idea. His test to consider the case as an act of recklessness and under the section 1 of the Criminal Damage Act 1971, the test became:


  1. The circumstance when the accused is aware of the possible risk that may exist or will exist; and

  2. The result when the defendant is aware of the risk that will take place and in the circumstances known to him, irrational to take the risk.

His arguments brought the case under subjective test standard to justify the facts that whether the defendants should be judged on the basis of their experience, age and understanding the consequences of their acts; eliminating the hypothetical idea of a reasonable person with better understanding of the situation and its consequences. The defendants were held to be guilty of arson.


PRINCIPLE OF RECKLESSNESS IN CRIMINAL LAW


For defining a criminal act, it is required to confirm mens rea, which has many levels and it must be established that the accused is guilty. However, in most cases, the prosecution needs to prove a higher level of fault (beyond a reasonable doubt. Whereas in civil law the burden of proof is much lower. The claimant must only prove on a balance of probabilities what he is saying is correct to prove negligence. The principles of mens rea in criminal law can change between offences.

  • Offences against the Person Act 1861 (the main difference between s18 and s20 is required);

  • Direct intentions (direct intention makes the desired consequence irrelevant);

  • Oblique intention (the the defendant actually intent to do something different than the actual consequences but to get the result, the convicted person foresee the consequences); and

  • Subjective recklessness (this is a lower threshold of mens rea that takes an unjustifiable risk and it requires to prove the actual state of mind of the defendant which is very difficult to establish).

ANALYSIS


In case of Offences against the Person Act 1861, mens rea must be illustrated from motive. However, it can be a sign of the actual intention of the accused. Motive also has close relation with some specific crimes i.e. assault due to racial motives.

To prove the recklessness, subjective evidence is strongly required to show that the accused has foreseen the results of his actions but did not actually desire the particular ending. If the accused does not stop the given behavior or fail to act so, he takes risk of causing serious damage or loss to another human being or property of others. For that, there is always some degree of intention include within the act of recklessness.


Where the accused is aware that he is taking a risk but this is a choice he makes at that point of time. This is considered as actual intention to danger and the greater the probability of the outcome, the greater degree of recklessness placed and so, deserves punishment.


As mentioned in the Crown Bench Book: Directing the Jury, 2010, the requirement is that a jury must have a high degree of conviction before declaring guilty, which is defined as “beyond a reasonable doubt” in the United States and “sure” in the United Kingdom.


AMERICAN LAW


The Black's Law Dictionary (2005) describes recklessness according to the American law as “Conduct whereby the actor does not desire harmful consequence but…foresees the possibility and consciously takes the risk,” or on other words “a state of mind in which a person does not care about the consequences of his or her actions”. Similar to the English courts, the American courts require subjective test to justify the accused to be charged as guilty.


BRITISH LAW


In England, William Prosser (1971) had written that the origin of the term recklessness lies with the distinctions that were made between “degrees of care” in bailment cases around the eighteenth century. The current definition of recklessness was developed since the case of R v. Cunningham [1957]2 QB 396. In this case, the term "maliciously" was defined for the principles of the Offences against the Person Act 1861 and objective test was required extensively rather than subjective test. Malice is a definitive element in any statutory classification of a criminal act that must have:


  • An actual intention to do harm and the act is committed anyway; or

  • Recklessness considering the accused foreseen the dangerous outcome of his actions but did it anyway.

Because of that, in England and Wales the current test is subjective recklessness.


CONCLUSION


For over 30 years, the term recklessness has been an issue of contradiction in numerous cases. There have been many significant cases that required both subjective and objective tests of mens rea to make the judgment. Cases like R v Caldwell [1982] AC 34, R v Lawrence [1982] AC 5104, R v Reid (1992) 3 AER 673, R v Merrick [1996] 1 Cr App R 130, CA and many other similar cases have played major roles to establish the term recklessness and its association with mens rea.


The decision in the case of R v Caldwell creates a lot of controversies. However, for many years, the Caldwell decision was considered as a basis of similar cases.

According to Ormerod (2009), the decision of R v Caldwell was overruled in the case R v G and another [2003] UKHL 50 by the House of Lords which put an end to the long running contradiction. Since this case, the subjective test of mens rea was introduced instead of objective test which was majoring in similar cases for a long time unless the lawsuits actually involve criminal damages.


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