Recklessness

The current law on recklessness is far from satisfactory. Do you agree with this statement?
This essay agrees with the above statement that the current law on recklessness is far from satisfactory. In order to continue it is necessary to define recklessness and the current law on it. Recklessness is a problematic area of the criminal law, since there is no strict definition of what constitutes it. Statutes make provision for the presence of recklessness, but have yet to define it strictly, thus it falls on the hands of the judges to interpret what is meant by recklessness. It is therefore most easily delineated via case law. According to Jacqueline Martin (2010) ‘recklessness is where the defendant knows there is a risk of the consequence happening but that takes the risk’. Recklessness appears in offences ranging in gravity from manslaughter at the top end of the scale to criminal damage and a range of statutory offences at the bottom, offences involving reckless are called offences of basic intent. Judges have had to rely on “explanations in important case reports” in order to decide what amounts to recklessness.
The development of the law in this area will be looked out with the aid of case law such as R v Cunningham [1957] R v Caldwell [1982] and R v G [2003]. In order to identify and understand the concept of recklessness, intention needs to be discussed. The 19th century criminal legislation required that defendants had to have acted `maliciously’ and `unlawfully’ when committing an offence. The accused will act unlawfully if D fails to present a lawful reason for D’s act, D would be considered acting maliciously once D satisfies the level of Mens Rea required for the Actus Reus. The word `malicious’ introduces the requirement of Mens Rea. The statutory definition of `malice’ is, requiring an actual intention to do a particular kind of harm that in fact was done, or reckless as to whether such harm should occur or not. The accused has foreseen that particular harm might be done, and has gone on to take the risk. The word `maliciously’ means in relation to the law of England and Wales `an intent or recklessness’. Intention differs from recklessness; intention commands a severe penalty within the criminal justice system, morally intent is considered objectionable, adjacent to recklessness.
Between 1982 and 2003 recklessness was defined in two different ways: subjectively (Cunningham recklessness) and objectively (Caldwell recklessness) but each applied to different offences. Recklessness now has one meaning as it subjectively assessed. Cunningham recklessness has multiple tests. The main test states that if D foresees the risk of harm there is no need for D to foresee the risk was ‘highly probable’. This is illustrated in the case of R v Cunningham [1957]. For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk, he must realise that there is a risk involved. However, if he continues to carry on with his conduct, he is then reckless. This test is good because you must show that you, yourself has foreseen the risk. But on the other hand, this concept was ‘stretched in the case of R v Parker
(1977). Also the bad thing about this test is that D has to have seen that the risk was ‘highly probable’.
Caldwell recklessness however no longer exists but it applied to some important offences between 1982 and 2003 concerned the unconscious creation of a serious and obvious risk of harm. One could be objectively reckless even though completely unaware of any risk created. This caused injustice and gave rise to a great deal of criticism. The Bad thing about this test is that it states that the risk has to be obvious. But obvious to whom there is no measure and needs clarification. This is illustrated in the case of Elliott v C (2003) reconfirmed in R v G (2003)
In conclusion there are possible reforms that need to be taken into account for the current definition of recklessness: