Chapter 6: Recklessness

Question 1

What is the definition of Recklessness?

Answer 1

A person may be deemed to be reckless if they foresee a risk and unreasonably runs the risk of injuring another to a very high degree of probability

(not virtual certainty, not intention)

Question 2

What are the 2 POV’s of recklessness

Answer 2

• Subjective (Cunningham) - closing of the mind
• Objective (Cardwell) - reasonable man test

Question 3

What is Cunningham’s view? (subjective)

Answer 3

The defendant knowingly/aware/foresees the risk and takes an unjustified risk (if the person himself was aware)

Question 4

R v Cunningham [1957] 2 QB 396

Answer 4

Facts

1. D was convicted of maliciously administering a noxious thing as to endanger life contrary to S.23 OAPA 1861

Held

1. COA held liable
2. That defendant is reckless if ‘accused foresees the particular harm that might be done and yet has gone on to take the risk of it’

Question 5

What is the difference between ‘closing of the mind’ and ‘mind closed’.

What would be the verdict for each?

Answer 5

Closing of the mind - guilty

• When one had knowledge or appreaciation of risk of some damage entered into their mind
• But was due to the circumstances of the situation where the D suppressed or driven it out

Mind closed - not guilty

• Something that prevents the thought/risk of harm to enter the D’s mind at all

Question 6

What are the cases for closing of the mind and mind closed?

Answer 6

Closing of the mind

• R v Parker [1977] 1 WLR 600

Mind closed

• R v Stephenson [1979]

Question 7

R v Parker [1977] 1 WLR 600

Answer 7

Facts

1. Appellant had tried (and failed) to place a telephone call in a phone booth
2. This infuriated him and in rage, he slammed the handset onto the telephone, causing damage to the latter
3. He had argued that he had not, at all, contemplated the risk of damage to the telephone

Held

1. ‘closing one’s eyes is not a sufficient defence’
2. Liable as he should have known, but decided to ‘close her mind’

Note/takeaway

1. Prof William Wilson opined that the above decision is, in fact, quite consistent with a subjectivist approach. The words ‘closed his mind to the risk’ imply that the defendant knew of the risk concerned without bothering to attend to it
   * On grounds that the thought had entered his mind, although at some point it had been suppressed by anger
   * But still, the thought (of risk) occurred nonetheless

closing of the mind

Question 8

How does R v Stephenson [1979] 1 QB 695 distinguish closing of the mind and mind being closed

Answer 8

Facts

1. D was schizophrenic, crept into a hollow large stack and lit a fire to keep warm

Held (Geoffrey Lane LJ)

1. Not reckless
2. ‘A man is reckless when he carries out the deliberate act, appreciating that there is a risk that damage to property may result from his act… The risk must be one which it is in all the circumstances unreasonable for him to take… We wish to make it clear that the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind even though he may have suppressed it or driven it out… The schizophrenia was on the evidence something which might have prevented the idea of danger entering the appellant’s mind at all. If that was the trust of the matter, then the appellant was entitled to be acquitted.’

mind closed

Question 9

What is Caldwell’s view? (objective)

Answer 9

The defendant unreasonably takes an obvious risk of harm

• No need to prove that the accused foresaw the risk. Just need to know whether the risk was there (if a reasonable man would foresee)
• Employs the ‘reasonable man test’

Question 10

What are the 2 circumstances/cases that are employed by Caldwell (objective test)?

Answer 10

1) Accused foresees the risk, and takes precautions that turn out to be inadequate

• Chief Constable of Avon and Somerset Constabulary v Shimmen [1986])

2) Accused foresaw the risk, and then decides wrongly that there is no risk after all

• R v Reid [1992]

Question 11

What are the 2 elements given by Lord Diplock?

Answer 11

1. ‘He does an act which in fact creates an obvious risk that property will 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 nonetheless gone to do it.’

Question 12

R v Caldwell [1982] AC 341

Answer 12

Facts

1. Defendant got drunk and set fire to a hotel, where there were guests. But the fire was distinguished before any serious damage was done. Defendant was indicted on 2 counts of arson
2. He pleaded guilty to the first count of intentionally or recklessly damaging property belonging to another contrary to Section(1) of the Criminal Damage Act 1971
3. But pleaded not guilty to the second count of damaging property with the intent to endanger life or being reckless whether life would be endangered contrary to Section 1(2) of the Criminal Damage Act 1971

Held

1. HOL held that this was a basic intent crime, and that drunkenness is not a defence

Takeaway

• HOL proposed a test of recklessness which did not require proof of awareness. No conscious advertence to particular risks
• There is no requirement for it to be established that the accused was aware that his conduct provoked the risk of that result so long as the risk was obvious (should have been foreseen)

Question 13

What are the problems with Caldwell (objective test)?

Answer 13

1. Pose problems for unknowledgeable, inexperienced and for those whose inadvertence results from mental or other incapacity (seen in R v G and another [2003])
2. Defendant should have the characteristics (i.e. capacity and a fair opportunity to be considered in assessing liability)
3. Test either way is not entirely objective, as there is exceptions with people that are unable to run the reasonable risk

Question 14

Is Caldwell still used today?

Answer 14

No, It has got overruled by Cunningham in the HOL, that now they went back to the subjective test in Cunningham

Question 15

What is the case that overruled Cunningham?

Answer 15

R v G & Another [2003] is the subjective test used today

Question 16

What are the 3 elements in R v G & another [2003]

Subjective test

Answer 16

A person acts recklessly with respect to:

1. A circumstance when he is aware of a risk that it exists or will exist;
2. A result when he is aware of a risk that it will occur; and
3. It is, in the circumstances known to him, unreasonable to take the risk