The Concept of Recklessness - Report Example

On a general perspective, recklessness is a term that refers to the ability of an individual to take risks that are notjustified1. There is a dilemma on the applicability of this concept of recklessness in criminal law. That is whether to apply an objective or subjective test, in determining if recklessness exists. R vs. Cunningham is one of the cases that determine the type of test to use, in analyzing this concept of recklessness2. In this case, the court was able to rule that a subjective test should be used for purposes of analyzing whether recklessness exists or not.3. This concept of recklessness may comprise of an offense against an individual or a property. There are arguments on the actual definition of recklessness. Recklessness involves a situation where a person is able to pursue a course of action, while at the same time, disregards the fact that the action gave rise to unjustifiable and substantial risk. Under criminal law, recklessness is an example of a mens rea element that can be used for purposes of establishing a liability. This concept is less culpable than intention, and more culpable than criminal negligence. The tests of conducting any mens rea must comprise of an assessment that tries to identify whether an accused person had foresight while committing the action that was prohibited, and had the desire and intention of causing those actions to occur. A case that better explains this concept of recklessness is the 1982 case of MPC vs. Caldwell4. Under this case, the House of Lords was able to define and identify what constitutes this concept of recklessness. The court was able to identify two important factors, that play a role in determining whether an individual is reckless or not. The first test, is the identification on whether a person acts in a manner that is able to create a risk, that it is obvious, will lead to the destruction and damage of the property under consideration. An example includes when an individual plants a bomb in a house or a building. This action in itself has the capability of creating a risk, mainly because it can explode, and hence create damage to the building and people within the building5. Furthermore, the second test of recklessness is when the individual hasn’t realized that such kind of a risk occurs, or realized that such kind of a risk was there and he or she went ahead, with the action. An example includes when an individual is over speeding, knowing very well that it may cause an accident, but nevertheless, that he or she over speeds, hence causing an accident. This is an example of recklessness, which passes the tests which has been established under the 1982 case of MPC vs. Caldwell6. In this case, the issue was whether intoxication could constitute or bring about a certain degree of recklessness, and the defendant was charged, in accordance to the 1971 Criminal Damage Act, section 1 (2)7. However, this concept of intoxication, in regard to recklessness was challenged in the case of DPP vs. Majewski8. Under this case, the court was able to rule that the crime of assault is a general crime, with a basic intent. Therefore, if an individual is able to take alcohol deliberately, and he or she becomes unable to control themselves, they cannot claim that they did not know what they were doing. Furthermore, the court ruled that an action of taking alcohol and drugs is a sufficient requirement to prove the mens rea requirement of a crime, such as the crime of assault. Therefore, this type of action is sufficiently reckless; hence it can satisfy the element of mens rea. By looking at this case, we can denote that the judges applied the two test rule, established in MPC vs. Caldwell, in determining whether an offence passes the mens rea rule or not. For instance, engaging in an assault is a reckless behavior in which an individual commits a crime that he or she is aware, could create some elements of risk to the targeted person. This satisfies the second test, established under mens rea, which denotes that a crime that an individual commits when he or she knows that it would create a risk, then the action in itself is reckless and it passes the test established in the Caldwell case. The test of mens rea is normally based on the assessment of whether the person accused had a foresight on the consequences of their actions, and whether the person had a desire to cause these consequences. Based on these facts, one of the major tests of mens rea is that of obviousness. This implies that it would be obvious, to an individual that the defendant failed to foresee the event happening, and hence failing to prevent the occurrence of such an event. This decision contained in Caldwell was preceded by a decision in the case of R vs. Lawrence, whereby an individual was prosecuted with an offence, because of reckless driving. In this case, the defendant was accused of causing death, because of reckless driving. This was against section 1 of the 1972 Rod Traffic Act. In this case, the court ruled that recklessness presupposes that an individual with a good mental capacity would engage in an activity that has the possibility of causing harm, in which section 1 of the Road Act was aimed at preventing9. Furthermore, it involves a situation whereby the person acting in the said manner knew of the consequences of the action, and he nevertheless went ahead and engaged in such an action. If these conditions are met, then an individual has engaged in a reckless behaviour, thus passing the test of mens rea. In Elliot vs. C, another argument on the test of mens rea exists10. In this case, C a minor was hungry and tired, and unfortunately she burnt down a garden. The minor did not foresee the emergence of fire that led to the burning down of the garden11. In coming up with a ruling, the court was able to apply the Caldwell test, by denoting that an individual is reckless, if he or she fails to consider the consequences of their actions, which may result to the damage of the property, even if the risk under consideration would not be obvious to the defendant, by reason of inexperience and age12. The major focus of this test was on nature of the conduct of a defendant, as opposed to their mental state, and this was able to draw a lot of criticism from legal scholars, and experts. In the 1992 case of R vs. Reid, the court was able to identify the state of an individual’s mind, when considering whether the action of an individual is able to pass the test of mens rea13. There are three major tests of mens rea, and these are, subjective tests, objective tests, and the hybrid tests. These are the tests that were developed in the case of R vs. another, which was able to overrule the decision of the court in Caldwell. Under subjective tests, the judges denoted that it is the duty of a court to establish what a person was thinking when committing the crime14. The objective tests on the other involves the execution of the test, based on analyzing whether a person with the same knowledge and mind of an accused would act in a similar manner, in regard to the actions of the accused person. Through this test, the court was establishing the obvious test, and this is by analyzing the obviousness of the actions or the results of an action. The hybrid test is a combination of the objective and the subjective tests. In conclusion these new laws are sufficient in the testing of the existence of mens rea. For instance, in R v another, the court was able to examine the intention of parliament in enacting section number 1, of the 1971 act. The court was able to explain that the decision in the Caldwell case was a misrepresentation of the term, and this is because the intention of parliament was to make it clear, that recklessness meant, maliciousness. Based on this fact, it was necessary to throw out the law, and hence establish another precedent and laws that could establish the tests of mens rea. The second test established, was on examining the mental mind of an individual, in examining whether an individual is culpable or not. This situation is right, basically because in any criminal jurisdiction, it is necessary to examine the mental capability of an individual, as this would determine whether the person can be tried for the offence or not. Furthermore, the decision in the case of Caldwell was unfair, basically because it did not consider the age or the mental capability of a child. This was depicted in the case of Elliot vs. C, which involved a minor. Based on these facts, the new laws are satisfactory. 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