Homicide: Recklessness

Recklessness in Criminal Law:

• Definition: Recklessness involves taking an unjustified risk. It is a higher degree of negligence and is concerned with whether the defendant's actions involved an unacceptable level of risk.

Types of Recklessness:

1. Subjective Recklessness: Currently used in law.

2. Objective Recklessness: Abolished following the unpopular decision in Elliott and R v G.

Cunningham Recklessness:

• Test: Based on the defendant's state of mind. It requires that the defendant:

1. Foresees that a risk could cause a particular result, and

2. The risk is unreasonable.

• Limitation: The test is considered too narrow. It places the burden on the prosecution to prove that the defendant actually foresaw the risk of harm. Critics argue that it allows too many defendants to avoid liability by claiming they did not foresee the risk.

Caldwell Recklessness:

• Test:

1. The defendant was aware of the risk, or

2. The risk was obvious and serious, and the defendant failed to consider whether there was a risk.

• Limitation: This test is seen as too wide. It criminalizes those who genuinely did not foresee a risk, thus blurring the line between negligence and recklessness.

Notable Cases:

1. Elliott v C [1983]:

◦ Facts: A 14-year-old with learning difficulties accidentally burned down a garden shed. The defendant did not foresee any risk due to their inability to perceive it.

◦ Judgment: Despite the defendant's inability to foresee the risk, the court held that they were reckless because they took an obvious and serious risk of damage.

◦ Impact: The decision was highly unpopular as it did not account for the defendant’s capacity to foresee risk.

2. R v G [2003]:

◦ Facts: Two boys accidentally set fire to a supermarket. They did not intend to damage property nor were they reckless about the damage.

◦ Judgment: The House of Lords overruled the Caldwell test, emphasising that subjective recklessness should be applied.

◦ Lord Bingham’s Judgment: It is unjust to blame someone for a risk of injury if they genuinely did not perceive the risk.

3. R v Parker [1977]:

◦ Facts: The defendant smashed a telephone in a public phone box in anger, not considering the potential for damage.

◦ Judgment: The court held that wilfully ignoring the potential risk does not protect one from conviction. Recklessness can be found even if the defendant did not consider the risk.

Academic Perspectives:

1. Antony Duff:

◦ Concept of Practical Indifference: Recklessness involves practical indifference, sitting between Caldwell and Cunningham. It reflects an individual's disregard for the consequences of their actions.

◦ Example: A bridegroom forgetting a wedding shows practical indifference to an important event, illustrating the carelessness of the action.

2. Alexander and Kessler Ferzan:

◦ Culpability: A defendant is culpable if they exhibit insufficient concern for the welfare of others. This perspective is more subjective and focuses on the defendant’s lack of concern rather than their actual foresight of risk.

Current Standard:

• The law now applies subjective recklessness exclusively, following the overruling of Caldwell in R v G. This requires that the defendant must have actually foreseen the risk of harm for them to be found reckless.