Criminal Law- recklessness
R v Cunningham
d was taking money from the gas meter, and in doing so damages the gas meter and gas escapes into a near flat, D is charged with maliciously (intentionally or recklessly) administering an noxious thing.
the conviction was quashed because the judge had erred in describing the meaning of "malicious" and "wicked". the correct test for malice was whether the defendant had either actual intent to cause harm or was reckless as to the possibility of causing foreseeable harm.
R v Parker
D is in a phone booth and in a fit of anger takes the hand piece and smashes it onto the stand and damages it, liable for criminal damage, tried to argue that breaking the phone was never foreseeable to him as he was in a fit of anger
D was guilty had he had the requisite mens rea of recklessness
R v Stevenson
D is a young teen, they lay in a bail of hay one night and they got cold so light a fire to stay warm, the fire catches to the hay causing £3000 worth of damage, liable for arson. court argues they had closed their mind to the obvious risk of fire. CoA quashes as it is shown that D sufferers from schizophrenia and therefore was not obvious to him, conviction was overturned.
R v Caldwell
D had been working at a hotel and fights with his employer, gets drunk, and sets fire to the hotel, fire is discovered with no injuries and very little damages, he is charged with recklessly damaging property, and recklessly endangering life. D argued that the thought of people getting hurt never occured to him, lord diplock held drunkenness is no excuse, and gives us a new test:
Elliott v C
14 year old with limited inteligence, out all night, entered someones shed, was feeling cold so found some spirits and poured them and lit a fire, fire spread and she was charged with arson. court held due to lack of age, experience and so forth, the rsk of destroying the shed would not have been obvious to her. this was rejected.
R v G and another
2 young boys snuck out one night and camped in the yard, they set a fire and pushed some bins over and fire pread causing over £1,000,000 worth of damage. if caldwell was applied then it wouldnt matter if they didnt think of the harm they would be guilty, the HoL said they werent happy with this judgement:
AGs ref (no3 of 2003)
agreed with R v G and another and said that the general principles were laid down and this was to apply further than just criminal damage
D could not be culpabile under the criminal law of doing somethign involving a risk of injury to another or damage to property if he genuinly did not perceive a risk
R v Brady
D is at a ngihtclub and is intoxicated and climbed up a railing and jumped, landing on a person and cuasing serious damage. held that all you have to see is a risk, then if you go ahead anyways you ar ebeing reckless.
all that has to be shown is that you saw a risk, even a small one. but once you see this and go ahead anyways you are reckless
what is subjective/cunningham recklessness?
R v Cunningham
recklessness is subjectively assessed
The accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it.
Parker-A man is reckless ... when he carries out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage
Stephenson
what is caldwell/ objective recklessness?
R v Caldwell
- A person is reckless if:
- He does an act which creates an obvious risk....
- and when he does the act he either gives no thought to the possibility of there being a risk or sees the risk but takes it
to whom must the risk be obvious?
Elliot-- Argued that ‘obvious’ in Caldwell meant obvious to D – argument rejected. Said that D was reckless:
- if the risk is one which would have been obvious to a reasonably prudent person, once it has been proved that the particular D gave no thought to the possibility of there being such a risk.
objective recklessness rejected?
R v g and Another- it is a salutary principle that conviction of serious crime should depend upon proof not simply that D caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable
what is the R v G test for recklessness?
A person acts recklessly within the meaning of s 1 of the 1971 Act 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.
confirmed in AGs reference (no3 of 2003), R v Brady
what is the negligence- objective test?
- If D has behaved in a way which a reasonable person would not then he is negligent
- If D considers a risk but rules it out – D is negligent if a reasonable person would not have ruled out the risk
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