Principles - mens rea - recklessness - general points applicable to all recklessness

General Points Applicable to All Recklessness Defendant may not intend the consequences, but takes an unjustified risk of causing the consequences. Risk must be unreasonable, therefore not a surgeon, pilot, tightrope act, reasonable force to make an arrest (e.g. PC forcing suspects car off the road), reasonable self-defence. Obvious test is the social value -v- gravity of harm caused e.g. Russian Roulette -vshooting sheep-worrying dog. Before Caldwell/Lawrence and in R v Cunningham [1957] cases Cunningham Recklessness requires inadvertent risk taking, mere negligence, or unreasonable failure to consider obvious risk. Therefore there is an overlap between recklessness and gross negligence. Recklessness = conscious taking of an unjustifiable risk Negligence = inadvertent taking of an unjustifiable risk Now gross negligence will normally amount to Caldwell/Lawrence type recklessness. Consequences desired = Intention. Consequence foreseen as virtually certain = intention may be inferred - Cunningham Recklessness. Consequence foreseen as probable = typically recklessness (subjective) Cunningham Recklessness. Consequence foreseen as possible = typically recklessness (subjective) Cunningham Recklessness. Consequence not foreseen but ought to have been = objective recklessness Caldwell/Lawrence Recklessness. Consequences even a reasonable man would not foresee = strict liability

Principles - mens rea - recklessness - the "Caldwell Lacuna"

he words malice wilful and reckless have much the same meaning They are found in two groups of statutory and common law offences. Unfortunately what is reckless varies. The test is, was the recklessness subjective or objective.

Cunningham - Subjective Recklessness R v Cunningham [1957] CA In R v Cunningham [1957] the term subjective recklessness first appeared Sometimes called Cunningham Recklessness. Offences: offences that can be committed Cunningham Recklessly, include non-fatal offences against the person; rape; Theft Act offences, some Common Law offences. The Test: Did D consciously take an unjustified risk? Caldwell/Lawrence - Objective Recklessness In MPC v Caldwell (1982) and R v Lawrence [1982] (decided on the very same day) the term objective recklessness first appeared. Sometimes called Caldwell/Lawrence Recklessness Offences: offences that can be committed with Caldwell/Lawrence Recklessness are now very limited following R v G and another [2003] HL The Test: Was there an obvious risk which D consciously took or unconsciously took? This means:[Two limbs] First limb: D does any act which creates a serious [serious = not negligible] risk, that must be obvious [to a reasonable prudent man] [objectively viewed] and Second limb: a): has recognised some such risk and nevertheless taken it [advertant recklessness]. or b) he must either not even address his mind to the possibility of there being some such risk and the risk was obvious [inadvertent recklessness] . Note: Caldwell/Lawrence broadened Cunningham So, all Cunningham Recklessness is also Caldwell/Lawrence Reckless, but not the other way round.

The "Caldwell Lacuna" note this has very limited application following R v G and another) [2003] HL What if D decides there is NO risk? Once the obvious and serious risk is proved the only way out for the defendant is to prove he considered the matter and decided there was no risk, or negligible risk. This is known as the Caldwell Lacuna, first acknowledged in R v Reid (1989). Relevant cases R v Cunningham [1957] CA Applicable to Theft Act offences; offences against the person; common law offences;

rape

R v Cunningham [1957] [gas meter, neighbour became ill] R v Savage and Parmenter [1992] [threw beer, and inadvertently glass over rival for boyfriend. It is enough that she should have foreseen that some physical harm, albeit of a minor character, might result. Guilty] R v Pigg (1982) [rape 15 and 17 yr. olds, indifferent, and gave no thought, if he had there would have been obvious risk (of wrong penetration) not aware of possibility but persisted regardless. Not Guilty on other grounds - majority verdicts] R v Adomako (1994) anaesthetist, tube fell out during eye operation, manslaughter = gross negligence, not recklessness] R v Spratt (1990) [pellets miss target hit 7 yr. old] R v Satnam and Kewal (1984) [joint rape 13 yr. old girl Betty, both indifferent to her feelings, couldnt care less attitude. Not guilty] Relevant cases Caldwell /Lawrence For all practical purposes limited to some regulatory offences [e.g. Data Protection] following R v G and another [2003] HL] Previously relevant cases are here May still have some relevance to gross negligence manslaughter: R v Adomako (1994) [can be used to explain gross negligence in manslaughter which has replaced Recklessness] and some regulatory offences; Data Protection Registrar v Amnesty International [1995] [includes regulatory offences under Caldwell Recklessness;] Relevant cases

The Caldwell Lacuna

Cases which failed to establish the lacuna* R v Lamb [1967] [two bullets in chamber, thought no risk.= not guilty] R v Crossman [1986] [unsafe lorry load safe as houses changed his plea, should have maintained lacuna plea = guilty] R v Reid (1992) [undertakes, hits protruding hut, considers risk but mistake as to specific fact = careless driving. Taking a risk to avoid an emergency is not reckless]