All inadvertence to an objectively perceptible and unacceptable risk is to be condemned as reckless (Gardner, 1993)
Critically consider the basis on which criminal liability for recklessness should be assessed.
As Professor Herring writes, ‘if purpose is at the heart of intention, risk-taking is at the heart of recklessness’ (Herring, 2010). In his view, the elements of culpability which make reckless a mens rea are less teleological than the culpable elements of direct intention. Notwithstanding Professor Herring’s observation, the precise boundaries of the concept of intention are not in themselves crucial, as recklessness constitutes an alternative and sufficient mens rea and one which is undoubtedly easier to prove (Blackstone’s, 2012). For example, under the Criminal Damage Act 1971, the accused has the requisite mens rea if he acts ‘intending to destroy or damage any property or being reckless’ as to whether same would be so damaged. The shifting boundaries regarding the distinction between intention and recklessness, and even regarding the definition of recklessness itself have been the subject of much controversy.
The contemporary approach to recklessness concerns the taking of unjustified, excessive, and discernable risks. This, however, has not always been the approach of the Courts in attempting to define recklessness, and in the past 50 years or so, there have been three approaches to dealing with the legal concept of recklessness. The distinction between the approaches is subtle but critical. The classic view, and also now the contemporary view, is that a reckless act is one whereby the consequence is foreseen by the accused as a possible (but not necessarily highly probable) outcome. The alternative view posits the notion that a reckless act is one whereby the consequence of the accused’s act was not foreseen but ought to have been, viz. the accused was negligent. The difference between the former approach and the latter approach essentially represents the difference between the narrower subjective ‘Cunningham’ recklessness (as per R v Cunningham) and the wider objective ‘Caldwell’ recklessness (as in Metropolitan Police Commissioner v Caldwell). Caldwell recklessness was the favoured approach by the Courts for at least 20 years, prior to R v G affirming the supremacy of Cunningham type recklessness in 2004.
Cunningham takes the view that the accused had foreseen that the particular type of harm might be done and yet has gone on to take the risk of it occurring. In R v G, Lord Bingham modified the classic expression slightly by framing his judgment in the terms used by the Law Commission’s Draft Criminal Code (Law Com. No. 177), such that a person acts recklessly with respect to (i) a circumstance when he is aware of a risk that exists or will exist, (ii) a result when he is aware of a risk that it will occur, and it is, in the circumstances known to him. The degree of foreseen risk which would make one reckless depends therefore on the reasonableness or otherwise of the risk.
As Kimel (2004) writes, at one end of the scale, a surgeon operating on a critically ill patient may knowingly run a very high risk of his patient’s death, but if the patient is even more likely to die if the operation is not attempted then it would be a reasonable risk to run and no one would describe the operation as reckless – the justification for conducting the operation is strong. If, on the other hand, one offers another a chocolate from a box of 50, of which the offeror knows just one is poisoned, the offeror is clearly acting recklessly – although the risk is low, there is no justification for running the risk. The action is therefore reckless.
Professor Williams (1981), referring to R v Lamb, rejects calls for criminal law to be used to punish fools, favouring the approach of Cunningham. As Stark (2015) explains, Williams’ rejection of the Caldwell approach has two distinct advantages. Firstly, supposing the next Government in Parliament adopted a rigorous legislative agenda aimed at increasing convictions, it could widen the scope of liability for many offences – if every offence had a flimsy fault element such as the hypothesized negligence element in Caldwell, convictions would be secured in circumstances where the law no longer reflected anything like the notions of the jury concerning wrongdoing and culpability. Secondly, Caldwell undermines the capacity of English law to achieve rational and coherent results – on this view we could end up with ‘Majewski recklessness’ for the voluntarily intoxicated (Majewski v DPP), or Caldwell reckless for the unthinking. As Crosby (2008) also highlights, a further problem with Caldwell is the possibility for the law to become tainted by politics and social value judgments which could lead to uncertainty as different panels consider similar facts. Smith, Williams, and Griew (all 1981) identified a lacuna with the jury directions in R v Caldwell and R v Lawrence, where the Defendant had appreciated the risk of a particular consequence and continued regardless. However, Syrota (1999) argues in favour of a partially objective test of recklessness, particular in those cases in which the accused in drunk, or agitated, or unfit through drugs. Such an approach would have dramatically limited the scope of the objective test but would allow for distinction for intoxication along the lines of R v Majewski.
Duff (2011) highlights a further quirk within the case law – the culpability arising from moral indifference. In R v Lawrence, Hailsham LJ supported Diplock LJ’s view that recklessness applied to persons or conduct evincing a state of mind just short of deliberate intention, and going beyond mere inadvertence. Duff thus hypothesizes that the difference between mere inadvertence and culpable inadvertence amounting to recklessness is provided by Eveleigh LJ in R v Murphy and Lane LJ in R v Stone & Dobson, viz. indifference. It is not the attitude of indifference alone that leads to a finding of culpability, but rather how that indifference is manifested by the acts or omissions of the accused (Cromie, 2001). As Duff writes, some failures of attention or realization may manifest not mere stupidity or thoughtlessness, but the same indifference or disregard which characterizes the conscious risk taker as reckless. Birch (1998) submits that indifference can include a defendant who gives no thought to risk but had the capacity to do so. He thus advocates a wider concept of recklessness which considers that in cases of advertence, caring is relevant but as an alternative to foresight, evidence of reprehensible attitude of indifference should be an adequate alternative, citing R v Parker and R v Kimber as examples of judicial acceptance of such an approach. In R v Parker the Court of Appeal opined that if D did not foresee risk he was deliberately closing his mind to the obvious, and later, in R v Stephenson, that the appreciation of risk must have entered D’s mind ‘even though he may have suppressed it or driven it out’.
Although the law relating to carelessness was drastically simplified by the House of Lords’ decision in R v G (2004), it is clear from the above that the boundaries of recklessness remain controversial and in some cases fluid. The decision in R v G is open to palpable exploitation by particular cunning or selfish defendants who may in certain circumstances be able to satisfy a jury that s/he is so self-centered that the consequences of his / her act where not apparent. In such circumstances, it is suggested that there is scope to expand the mens rea of recklessness to include callous indifference.