CRIMINAL LAW
MENS REA – RECKLESSNESS
Basic Reading:
Herring, Chapter 3 and a chapter on recklessness from another textbook.
Caldwell [1982] AC 341
R v G and another [2004] 1 AC 1034
Further Reading:
C. Crosby, ‘Recklessness- the continuing search for a definition’, (2008) 72 Journal of Criminal
Law 313
S. Field and M. Lynn, ‘Capacity, Recklessness and the House of Lords’ [1993] Crim L.R. 127.
S. Gardner, ‘Recklessness Refined’, (1993) 109 L.Q.R. 21.
H. Keating, ‘Reckless Children’ [2007] Crim LR 546.
D. Kimel, ‘Inadvertent recklessness in criminal law’ (2004) 120 L.Q.R. 548.
A. Norrie, ‘The Limits of Justice: Finding Fault in the Criminal Law’ (1996) 59 Modern Law Review
540.
To Consider
Consider the following scenarios and decide (1) Whether you believe the individual was reckless and (2)
Whether the individual deserves to be subjected to the criminal law. In considering the scenarios remember
there are alternatives to the criminal law.
Angela is a teenager with severe learning difficulties. She runs away from home. At night time she finds a barn
full of hay to sleep in. During the night she is cold so lights a fire in the barn to keep warm. Unfortunately the fire
spreads and the barn is destroyed.
Brian who works in a call centre has a very short temper. One day, after a particularly difficult customer call, he
takes his stress ball and throws it across the room in a fit of rage. The stress ball knocks over an expensive lamp
causing it to smash. Brian tells his employers that he didn’t think about what he was doing because he was in
such a rage. He offers to pay to replace the lamp. His boss, however, believes that such behaviour must be
made an example of and so calls the police.
Carol has been taking kickboxing lessons. She decides to show Mary her mother-in-law her skills. She asks Mary
to stand a certain distance away from her. Carol then tells Mary that she will kick her leg in the air stopping just
short of Mary’s face. Unfortunately, Carol misjudges the kick and hits Mary in the face knocking her unconscious.
Mary who never liked Carol decides that the law must be involved.
1
, Note: Between 1982 and 2003 two distinct forms of recklessness were recognised (1)
Cunningham (subjective) recklessness and (2) Caldwell (Objective) recklessness). Now post
the House of Lords decision in R v G [2003] UKHL 50; recklessness has only one meaning
and it is subjectively assessed. However we will need to understand the law prior to R v G
in order to properly assess both that decision and the state of the law
Meaning of Recklessness
Recklessness is concerned with the taking of an unjustifiable risk.
However not all risk taking is unjustifiable - See The Law Commission, Working Paper on the
Mental Element in Crime – Working Paper No. 31. at p53:
the operation of public transport, for example, is inevitably accompanied by risks of accident
beyond the control of the operator, yet it is socially necessary that these risks be taken.
Dangerous surgical operations must be carried out in the interests of the life and health of the
patient, yet the taking of these risks are socially justifiable.
Normally in deciding whether a risk is justifiable or not the Courts will look at the social
utility of the act, what the chances are of harm occurring and how serious is the harm that
could occur.
This was the standard test of recklessness as set out in R v Cunningham [1957] 2 QB 396;
[1957] 2 All ER 412 (CA). Recklessness meant that:
The accused has foreseen that the particular kind of harm might be done, and
yet has gone on to take the risk of it.
Cunningham recklessness therefore has 2 elements:
1. The D must be aware of the risk
2. It must have been unjustifiable to take that risk
R v Parker [1977] 2 All ER 37 (CA) Lord Justice Geoffrey Lane:
…it seems to this court that if he did not know, as he said he did not, that there was some risk
of damage, he was, in effect, deliberately closing his mind to the obvious – the obvious being
that damage in these circumstances was inevitable. ….. 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 resulting from the act but nevertheless continuing in the performance of that ac
2
MENS REA – RECKLESSNESS
Basic Reading:
Herring, Chapter 3 and a chapter on recklessness from another textbook.
Caldwell [1982] AC 341
R v G and another [2004] 1 AC 1034
Further Reading:
C. Crosby, ‘Recklessness- the continuing search for a definition’, (2008) 72 Journal of Criminal
Law 313
S. Field and M. Lynn, ‘Capacity, Recklessness and the House of Lords’ [1993] Crim L.R. 127.
S. Gardner, ‘Recklessness Refined’, (1993) 109 L.Q.R. 21.
H. Keating, ‘Reckless Children’ [2007] Crim LR 546.
D. Kimel, ‘Inadvertent recklessness in criminal law’ (2004) 120 L.Q.R. 548.
A. Norrie, ‘The Limits of Justice: Finding Fault in the Criminal Law’ (1996) 59 Modern Law Review
540.
To Consider
Consider the following scenarios and decide (1) Whether you believe the individual was reckless and (2)
Whether the individual deserves to be subjected to the criminal law. In considering the scenarios remember
there are alternatives to the criminal law.
Angela is a teenager with severe learning difficulties. She runs away from home. At night time she finds a barn
full of hay to sleep in. During the night she is cold so lights a fire in the barn to keep warm. Unfortunately the fire
spreads and the barn is destroyed.
Brian who works in a call centre has a very short temper. One day, after a particularly difficult customer call, he
takes his stress ball and throws it across the room in a fit of rage. The stress ball knocks over an expensive lamp
causing it to smash. Brian tells his employers that he didn’t think about what he was doing because he was in
such a rage. He offers to pay to replace the lamp. His boss, however, believes that such behaviour must be
made an example of and so calls the police.
Carol has been taking kickboxing lessons. She decides to show Mary her mother-in-law her skills. She asks Mary
to stand a certain distance away from her. Carol then tells Mary that she will kick her leg in the air stopping just
short of Mary’s face. Unfortunately, Carol misjudges the kick and hits Mary in the face knocking her unconscious.
Mary who never liked Carol decides that the law must be involved.
1
, Note: Between 1982 and 2003 two distinct forms of recklessness were recognised (1)
Cunningham (subjective) recklessness and (2) Caldwell (Objective) recklessness). Now post
the House of Lords decision in R v G [2003] UKHL 50; recklessness has only one meaning
and it is subjectively assessed. However we will need to understand the law prior to R v G
in order to properly assess both that decision and the state of the law
Meaning of Recklessness
Recklessness is concerned with the taking of an unjustifiable risk.
However not all risk taking is unjustifiable - See The Law Commission, Working Paper on the
Mental Element in Crime – Working Paper No. 31. at p53:
the operation of public transport, for example, is inevitably accompanied by risks of accident
beyond the control of the operator, yet it is socially necessary that these risks be taken.
Dangerous surgical operations must be carried out in the interests of the life and health of the
patient, yet the taking of these risks are socially justifiable.
Normally in deciding whether a risk is justifiable or not the Courts will look at the social
utility of the act, what the chances are of harm occurring and how serious is the harm that
could occur.
This was the standard test of recklessness as set out in R v Cunningham [1957] 2 QB 396;
[1957] 2 All ER 412 (CA). Recklessness meant that:
The accused has foreseen that the particular kind of harm might be done, and
yet has gone on to take the risk of it.
Cunningham recklessness therefore has 2 elements:
1. The D must be aware of the risk
2. It must have been unjustifiable to take that risk
R v Parker [1977] 2 All ER 37 (CA) Lord Justice Geoffrey Lane:
…it seems to this court that if he did not know, as he said he did not, that there was some risk
of damage, he was, in effect, deliberately closing his mind to the obvious – the obvious being
that damage in these circumstances was inevitable. ….. 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 resulting from the act but nevertheless continuing in the performance of that ac
2
