1800Attornies.Com

By Makhsudul Islam

What is recklessness?

Recklessness is the taking of an unjustified risk; a person could be reckless as to a consequence occurring or to the actual circumstance. However, 'not all risk-taking is unreasonable; circumstances may exist which justify taking a risk. Whether taking a risk is justifiable depends on balancing of the social utility or value of the activity involved against the probability and gravity of harm which may be caused.' Some risks may need to be taken for the greater good of society for example the social utility of public transport travelling at excessive speeds is much greater than the risks that they carry in terms of an accident occurring, in order to justify in the context of recklessness, it needs to be shown that the risk taken outweighs that of the social utility that the risk carries.

The courts originally gave recklessness a subjective meaning whereby under this subjective approach, the definition of recklessness both as to consequence and circumstances imposes a double test:

1)      Whether the defendant foresaw the possibility of the consequence occurring

2)      Whether it was unjustifiable or unreasonable to take that risk

''an accused would be found to be reckless only where he had recognised the possibility of the prohibited consequence occurring (or the prohibited circumstance existing) and he carried on regardless.'. Nevertheless, 'controversy was introduced into this area in the early 1980's, when the House of Lords purported to broaden the meaning of recklessness so as to include those who failed to give thought to an obvious risk that the consequence would occur.' The courts however took a different stance in the case of Caldwell when they broadened the horizon that to include inadvertent recklessness so those who failed to give thought to an obvious risk thereby transforming the test to an objective one and measuring it against the prudent person. However, this has since been overruled.

The subjective approach

Under the subjective approach an accused would be found guilty where they had recognised the possibility of a prohibited consequence but they carried on nonetheless. The case that justifies this approach is the case of Cunningham where the appellant stole a gas meter and its contents in so fracturing a pipe, gas escaped as a result the respondent inhaled gas. It was held in this case that the word 'maliciously' in a statutory crime postulated foresight of consequence and that for an offence under s.23 it was necessary for the accused person either to intend to do the particular types of harm in fact done, or foreseeing that such harm might be done, for him to recklessly take the risk. The case makes it plainly clear the subjective approach used by the courts, that in order for a person to be convicted of being reckless it is paramount that the defendant intended to do the prohibited act or foresaw that such harm might take place but carried on regardless, but upon committing a burglary would such a thought run through the mind of the criminal, it is somewhat absurd that a criminal in the process of committing a crime will look to the consequence of his actions since this is irrelevant and the only goal that principle has in mind is to steal the gas meter and the money that it contains, this was broadened later by Lord Diplock.

Similarly, in the case of Stephenson the appellant was charged with arson contrary to s.1(1) and (3) of the Criminal Damage Act 1971, however he was a schizophrenic with the result that he may not have foreseen the relative consequences occurring as a normal sane person. The jury took the view that the offence was established on proof and that the damage caused would have been foreseeable to any reasonable person he was convicted, on appeal, it was held that conviction would occur if he closed his mind to an obvious risk. The appellant's schizophrenia prevented the idea of danger entering his mind at all hence conviction was quashed.

Geoffrey Lane L.J. went on to state: ''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'' Lane L.J. makes it lucid that in order to prove someone as being guilty it needs to be proven that 'knowledge or appreciation of some risk must have entered the defendant's mind,' but in the case of Stephenson the courts have applied a rather harsh approach since a schizophrenic would not have apprehended the danger or the concurrent risk, hence it has to be said the decision by the House of Lords was a correct one since it takes into account personal inadequacies of the individual in question hence allowing autonomy.

Ashworth's three elements of the subjective test viz.:

1)      It requires the defendant's actual awareness of the risk

2)      A person may be held to have been reckless if he or she was aware of any degree of risk

3)      The risk which defendant believes to be present must be an unjustified or unreasonable one

The proposal of Ashworth is deemed and accepted by many and affirms the element of individual fairness in the advertent definition. Conversely, it puts forward many questions as to how to judge an individual person on their own merits or demerits. How do the courts decide whether a person was actually aware of the risk where in effect he is actually lying to the court. It leaves open a loophole whereby the defendant's could claim in effect they were unaware of the risk and did not believe the action they were to commit would be an unreasonable one. But nonetheless it does as said before promote individual autonomy and fairness, referring to the earlier case of Stephenson an objective test as opposed to the subjective approach would have convicted him of arson making his state of mind irrelevant and comparing him to a prudent person in a healthy state of mind.

The objective approach

The Caldwell test (objective test) further broadened the scope of recklessness by including advertent as well as inadvertent recklessness. In the case of Caldwell the defendant set fire to a hotel where he had been employed and the time he committed the crime he was drunk and did not occur to him that other people may be endangered. He pleaded guilty to s.1(1) of the Criminal Damage Act 1971 but not s.1(2). It was held that drunkenness could not be relied as a defence as the charge included a reference to being reckless as to whether life would be endangered.

Lord Diplock went onto state: ''a person'is 'reckless as to whether or not property would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when 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.'  As Ashworth states 'Lord Diplock's primary justification for thus expanding the definition of recklessness was that it may be no less blameworthy for a person to fail to foresee an obvious risk than it is to see the risk and knowingly to take it.'

The succinct point made by Ashworth is logical in its definitive meaning as failing to give thought to an obvious risk would make someone just as culpable to one that recognises but carries on regardless. But, if we refer back to the case of Stephenson, then he would have been convicted since he failed to give thought to an obvious risk, this would seem somewhat harsh since from a moral standpoint Stephenson is not in the least culpable. Lord Diplock in Caldwell stated that the subjective approach in Cunningham was flawed since it required 'the meticulous analysis by the jury of the thoughts of the accused' before they would be able to determine what exactly the defendant was thinking at or before the time he acted. He believed it was unnecessarily complicating matters to expect a jury to decide beyond reasonable doubt whether D's mind had crossed 'the narrow dividing line between awareness of the risk and not troubling to think about it.

This objective approach would measure Stephenson against the prudent person described as the man on the 'London underground' but does the man on the London underground suffer from schizophrenia, the answer to that question is no. This would seem to be the weakness of the objective approach as it requires the defendant to be a person lacking inadequacies, which would be unjust and unfair.

In Lawrence the appellant was riding his motorcycle at an excessive speed and ended up killing the pedestrian. He was convicted of causing death by reckless driving. It was held that 1) upon conviction the jury had to be satisfied that the defendant drove in such a manner as to create an obvious and serious risk to physical injury of others and 2) that in driving in that manner the defendant did so without having given thought to any such risk, or recognised the risk but carried on regardless. Lord Diplock took the opportunity to redefine recklessness he stated that recklessness should be given its ordinary dictionary meaning. He also concluded that it is not a practicable distinction for the jury to have to distinguish between the defendant who is aware of the risk and one who is not, as it leads to greater complications.

The harsh approach of the objective test is exemplified by the case of Elliot v C (A minor) where a 14 year old girl was convicted after suffering from exhaustion and in general being of low intellect lit fire to a carpet which caused a shed to catch fire. The justices concluded that because of her age, lack of understanding, lack of experience and exhaustion the thought of risk would not occur to her. Upon appeal, Glidewell J. stated 'the phrase 'creates an obvious risk' means that the risk is one which must have been obvious to a reasonably prudent man, not necessarily to the particular defendant if he or she had given thought to it'it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.' Hence, she was convicted regardless of her moral culpability paying no heed to her inadequacies as a human being and measuring her up against the model made by the courts as the prudent man, but surely that prudent man must have an inadequacy in parallel with the defendant, it seems incongruous that a 14 year old girl would be considered against a prudent intelligent adult who has maturity and a greater level of understanding. This is one of the demerits of the objective approach.

Conclusion

Objective recklessness was overruled by the case of G and another where Lord Bingham concluded that the Caldwell approach should be disapproved as the two boys who did not perceive the newspapers to catch fire and cause such extensive damage Lord Bingham stated 'but it is not clearly blameworthy to do something involving a risk of injury to another if ' one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination but neither of those failings should expose him to conviction of a serious crime or the risk of punishment.'  Hence English law moved away from the objective approach which admitted of no exceptions to young children and the mentally impaired to the subjective approach, however, is this the correct direction?

The subjective approach has two lacunas, in that the person who stops to think whether there is a risk and accordingly concludes there is no risk and the other who has the could not care less attitude, they would escape liability since they did foresee the risk but concluded that it was correct, hence if Stephenson could prove that he thought of the risk but concluded that he perceived it was correct he would escape liability. When employing the subjective approach in Cunningham and G and R to cases such as Parker it is argued that in reality a capacity-based test is already in operation. This is because it is recognised that a definition of recklessness that is too subjective can allow those who are blameworthy to avoid criminal liability.

Alternatively, a test that is too objective can lead to injustice without being capacity based. It is submitted that a synthesis of the two approaches is required. This could be achieved by openly developing a capacity-based test or by introducing a form of practical indifference test. Once the reason why no thought was given to the risk emerged, it would be relatively straightforward to assess the degree of moral blameworthiness and thus any criminal liability. Such an approach would look beyond the subjective/objective dichotomy and add another dimension, why the accused acted as he did, his motivation or emotion behind the actus reus.