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Revision : Criminal
[MENS REA: RECKLESSNESS]
Not the same as being reckless in the 'ordinary' sense of the word: balancing the social utility or value of the activity against the probability and gravity of the harm that may occur
Classic definition: R v Cunningham:
Convicted of unlawfully and maliciously causing D to take a noxious thing vs. OAP 1861
At first instance, judge said 'maliciously' meant wickedly, but on appeal Lord Byrne gave a different definition of malice: 1) Actual intention to do the particular kind of harm that in fact was done; or, 2) Recklessness as to whether such harm should occur or not (has foreseen the risk but goes on to take it anyway)
Foresight of a consequence - must actually know of the existence of risk and deliberately take it: must prove the particular state of mind of the D at the time of committing the offence (Subjective Test)
Definition of recklessness in Clause 18 of the Law Commissioners Draft Criminal Code (1989): A person acts recklessly with respect to (a) a circumstance when he is aware of a risk that it exists or will exist; (b) a result when he is aware that a risk will occur; and it is, in the circumstances known to him, unreasonable to take that risk What recklessness test to apply?
Apply Cunningham, unless the statute defines recklessness differently, in which case the statutory definition must be used
In criminal damage: R v G and Another is the test to apply (restatement of Cunningham) o
For a period there was also an objective type of recklessness (Caldwell recklessness) but restricted to Criminal Damage and has now been modified by the HL in R v G and Another
- reaffirming Cunningham recklessness:Now for criminal damage you must prove: (i)
At the time of committing the AR, the accused was subjectively aware of the risk and
In the circumstances known to him, it was objectively unreasonable for the accused to take that risk
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