Foundation of Criminal Law - Essay Example

31 (issued in 1970), that defined recklessness as: " A person is reckless if, (a) knowing that there is a risk that an " event may result from his conduct or that a circumstances may " exist, he takes that risk, and (b) it is unreasonable for him to take " it, having regard to the degree and nature of the risk which he knows " to be present." With this definition, Lord Edmund-Davies explains that recklessness entails having a foresight of the outcome or its consequences, along with the “objective judgment of the reasonableness of the risk taken.

3” Thus, Metcalfe and Ashworth differentiate Lord Edmund-Davies’ discussion with that of Lord Diplock’s speech saying that it lacked the supporting statutory interpretation.4 Metcalfe and Ashworth also pointed out the considerations made by the House of Lords in the R v G case. Lord Bingham stated that the Caldwell decision misconstrued the statute, particularly Section 1(1) of the 1971 Act5 and went against the rule requiring that there be a “subjective mens rea” in case of serious crime conviction, leading to unfair results that might be “neither moral nor just.

”6 Lord Steyn on the other hand, focused on the injustice of using Caldwell decision to children, citing the UN Convention on the Rights of the Child.7 The commentary also discussed the meaning of “recklessness” as ascribed by the House of Lords in the R v G decision. Lord Bingham adopted the definition cited in the draft criminal code of 1989 wherein a person is said to act recklessly if “with respect to (i) a circumstance when he is aware of a risk that it 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, unreasonable to take the risk.

”8 Metcalfe and Ashworth explains that from this definition, it can be deduced that “any awareness of any degree of risk satisfies the definition, and that the judgment of the unreasonableness of a risk (when that issue is contested) is for the tribunal of fact.”9 With this, they foresee that this same definition may be used uniformly throughout the criminal law, except for judges who would substitute the term “reckless” with “gross negligence” necessary in a manslaughter conviction.

10 Finally, Metcalfe and Ashworth discusses the question of legal policy as regards the liability of children, taking into consideration the differing standards applicable to children and mentally disordered people, from that of adults who are of sound mind and hence, should have been aware of the need to take care. In this case, they opined that the courts still sustain “strict liability for offences that may carry prison sentences of some length” and state that the legislature has emphasized on the objective standards especially in the Sexual Offences Act 2003, in that they introduced the “test of ‘absence of reasonable belief’ in consent to replace the previous recklessness requirement.

”11 With this discussion of Metcalfe and Ashworth, it raised more questions than answers in definitely identifying the elements to be considered in criminal liabilities involving recklessness. Their discussion was not able to persuasively argue that indeed a different standard should be applied especially those concerning children, or having a subjective approach to the circumstance of a child or person at the time the act committed, rather than seeing a circumstance from an objective point of