Recklesness Notes

• 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)

  • 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:

1. At the time of committing the AR, the accused was subjectively aware of the risk and

2. In the circumstances known to him, it was objectively unreasonable for the accused to take that risk

The following principles apply to all forms of Mens Rea:

1. Negligence

• Doesn’t feature much in criminal law, as it focusses on the civil law concept of the reasonable man rather than the D’s own state of mind

• But it is the basis of liability in a number of statutory offences: e.g. careless driving

• In manslaughter the negligence must be gross (R v Bateman)

2. Transferred Malice: If D intends to kill X, but misses and kills Y

• Allows MR to be transferred and joined with the AR which caused the prohibited harm: transfer from the intended to the actual harm

  • R v Latimer: L aimed a blow at C with a belt – the belt recoiled and hit V, wounding her severely: intention to injure C was transferred to V

  • R v Mitchell: Principle applied to manslaughter

  • Gnango: D engaged in public gun fight with X and killed an innocent passer-by

• However: The D must have the MR for the crime charged – cannot mix and match the MR of different crimes

  • R v Pembilton: threw a stone with intention of hitting a crowd of people, but caused criminal damage instead: intention was for a different crime so didn’t have the MR for criminal damage

3. Coincidence of AR and MR

• Flexible interpretations to circumvent rule that D must have MR at the precise moment he commits AR:

1. The continuing act theory

   • Fagan v...

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