Less Distinguished Chapters of the Common Law Analysis and Critically Evaluate the Concept of Recklessness - Essay Example

The law relating to the mens rea of recklessness has been criticised as a patchwork of norms, riddled with inconsistency1. The piecemeal judicial approach to recklessness has perpetuated confusion with recklessness effectively have two different legal meanings applied to different offences2. The House of Lords decision in R v G 3 has been heralded by some as closing “one of the less distinguished chapters of the common law” with regard to the definition of recklessness and the focus of this analysis is to critically evaluate the impact of the decision. If we firstly the development of law in this area, recklessness covers criminal liability for taking “unjustified” risks4. However, the law relating to liability on grounds of recklessness distinguished between subjective and objective recklessness and has varied according to the type of offence5. Subjective recklessness was established in R v Cunningham6, where the defendant was charged with the offence of administering a noxious thing as to endanger life. It was determined that the word “maliciously” meant either an actual intention to do that particular type of harm that was in fact done, or recklessness in the sense that the defendant when acting realised there was some risk of harm occurring, but undertook the dangerous act notwithstanding. The second was subjective recklessness, which required the defendant to have foreseen the risk himself. However, in the case of R v Parker7 it was held that where the accused “closed his mind to the obvious8” he could still be reckless. Additionally, the test for objective recklessness was set out in the case of R v Caldwell9, where it was determined that a defendant could still be criminally liable even if he had not appreciated the risk but “an ordinary prudent individual” would have realised the risk. The issue was ultimately up to the jury to determine upon the facts of the case. Moreover, objective recklessness requires a risk that must be obvious to the reasonable man and need not be obvious to the defendant himself. However, the Caldwell decision created controversy for being narrow and Halpin argued that it effectively lead to categorisation of recklessness into five categories: namely: 1) Cunningham recklessness maintained for assaults; 2) narrow Caldwell recklessness for criminal damage offences; 3) Modifiable Caldwell recklessness for reckless driving offences; 4) adapted Caldwell recklessness for rape; 5) Recklessness for gross negligence manslaughter10. Moreover, Halpin asserts that “apart from the sheer inconsistency across offence over time, there was evident unfairness in the recognition given to the need to ameliorate the strict version of Caldwell recklessness”11. The inconsistency in practice is further evidenced by the discrepancies, leading to uncertainty as to when and what type of recklessness was applicable to any particular case. For example in the case of Eliot v C12 a fourteen year old with learning difficulties was convicted. There was doubt placed over this conviction as it was viewed as harsh because the risk may not have been obvious to a person of her age with same learning difficulties. Critics’ dissatisfaction with the narrow Caldwell decision was further perpetuated by the decision in the case of R v Coles13whilst ostensibly demonstrating a shift in approach by reference to the unmeritorious and meritorious defendant distinction, this appeared to be limited to medical negligence liability decisions such as R v Adomako14 and Halpin further asserts that “one practical upshot thus far is that when it comes to endangering life the courts judge the conduct of the qualified adults (doctors) more leniently than the actions of incapable young persons15”. Moreover, the judiciary appeared to completely ignore the dicta in Adomako, which expressly rejected the narrow Caldwell definition of recklessness. Indeed, in the Caldwell case itself, Lord Diplock had asserted that the objective recklessness test should apply to all determinations of recklessness as the Cunningham subjective test had served its purpose. However, this decision was criticised due to the inconsistency of direction as to who the risk had to be obvious to and whether the reasonable person test was always applicable16. For example, in the case of W (a minor) v Dolbey17the defendants had been shooting a rifle gun without considering that it was loaded and therefore this could result in two different convictions under the Caldwell and Cunningham recklessness test. The Caldwell definition of recklessness was directly addressed in the case of R v G18, which has been hailed as a delivering a fatal blow to Caldwell in so far as the Criminal Damage Act 1971 is concerned. In R v G it was argued that Caldwell recklessness should be abolished and Lord Bingham asserted that “Caldwell recklessness infringed important principle that a person was only guilty of a serious crime if they had a guilty mind19” Lord Bingham determined that Parliament’s intention in the Criminal Damage Act was that the term reckless should be given a subjective test and that the House of Lords had fallen into an “understandable but demonstrable error20”. However, Lord Bingham felt that on this occasion it would be right to overrule the past precedent. Lord Bingham further commented that the controversial concept of recklessness was susceptible of creating unfair results on grounds that by imposing liability for risks that the defendant could not apprehend this himself. Lord Steyn supported Lord Bingham’s extrapolations with further reference to the fact that it was not reasonable for children in particular to be penalised on the strength of what someone else would apprehend as an unjustifiable risk21. Lord Steyn made further reference to the United Nations Convention on the Rights of The Child in further supporting the argument that the jury under Caldwell had to consider whether it was obvious to a reasonable person and not if it was obvious to the defendant, which was risked unfair prejudice to the defendant. As such, Lord Steyn asserted that “it is one thing to punish a defendant for failing to foresee a risk that he should have foreseen, but to do so is only fair in cases where a defendant could have foreseen the risk22”. Therefore, R v G asserted subjective recklessness as the appropriate test. However, whilst R v G was a welcome move in formally acknowledging the negative ramifications of the narrow Caldwell test, it remains uncertain as to what survived R v G23. Prima facie the decision appears to stick a nail in the Caldwell coffin as far as the Criminal Damage Act is concerned however some commentators argue that Caldwell recklessness has survived for all but criminal damage24. This appears to be supported by the decision in R v Mark and another25which on appeal considered whether the decision in R v G had altered the position regarding mens rea for gross negligent manslaughter in Adomako. It was asserted that subjective foresight of the defendant was not necessary in gross negligent manslaughter and that the decision in R v G was limited to recklessness in context of the statutory provisions of the Criminal Damage Act 1971. As such, this judicial rationale appears to negate the significance of R v G and leave the law in the same pre-2004 position of ad hoc categorisation of recklessness according to the nature of the offence. Therefore, whilst the House of Lords decision in R v G to a degree “produced a historic moment in the development of criminal law26” questions remain as to the extent of the change of direction in practice. Moreover, Halpin posits that “there are two aspects of the leading speeches of Bingham and Steyn which indicate serious failings with regard to this wider aspiration27”. Firstly, Halpin argues that Bingham’s strict subjectivist approach could relegate the offences requiring subjective mens rea to strict liability offences or alternatively acquittal on a strict interpretation28. Secondly, they only overruled Caldwell recklessness to the case of Caldwell itself, therefore leaving it open to applicability and effectively untouched insofar as offences outside the realm of criminal damage as evidenced by the decision in R v Mark (and another)29 and as such, the law on recklessness remains remain a grey legal area. BIBLIOGRAPHY Blackstone’s Criminal Practice Bulletin (2008). Oxford University Press. Michael Allen., (2007) .Textbook on Criminal Law. 9th Edition Oxford University Press. Andrew Halpin (2004) Definition in the Criminal Law. Hart Publishing Jonathan Herring (2006). Text Cases and Materials. 2nd Edition Oxford University Press. A, Reed., B, Fitzpatrick., and Peter Seago (2006). Criminal Law. 3rd Revised Edition Sweet & Maxwell. Smith and Hogan (2005). Criminal Law. 11th Edition Oxford University Press. Adrian Keane., (2005). The Modern Law of Evidence. 6th Edition Oxford University Press. Michael Molan., (2003) Modern Criminal Law. Routledge Cavendish. Michael Molan (2001). Sourcebook on Criminal Law. Cavendish Publishing. D. Ormerod (2008). Smith and Hogan Criminal Law. 12th Edition Oxford University Press. Wilson (2003). Criminal Law: Doctrine and Theory. 2nd Edition Longman. Legislation available at www.opsi.gov.uk Other websites: www.lawcom.gov.uk Read More