Objective Recklessness In Criminal Law

Recklessness, indeed is a term used to condemn the actions of a person who is the cause of an undesirable circumstance. It features as one of four possible mental states that may constitute the mens rea of a crime. To be reckless, a person is involved with ‘’the taking of an unreasonable risk of which the risk taker is aware.’’ However, it is important to note that the risk ‘’does not have to be foreseen as highly likely to occur.’’ Recklessness, a term that is commonly featured within the criminal law system, is said to be problematic as there is no set definition. Such confusion surrounding the idea of what amounts to being reckless has indeed prompted the Law Commission into releasing papers to remedy the issue. ‘Unchariness’, ‘dolus

Stark points out that objective recklessness ‘’does not require such advertence to risk’’ unlike subjective recklessness wherein it was required that ‘’the accused foresaw an unjustified risk’’ and with that, objective recklessness was subject to criticism as it was seemingly concerned with a state of mind. This, allowed many defendants to evade liability as it is very precarious to expect a prosecution to be able to prove that a person foresaw a risk of harm occurring. Furthermore, ‘Caldwell recklessness’ paved way for unfair decisions being made in the courts such as in Elliot v C where young girl with learning difficulties was convicted of arson. The decisions caused an outcry as it led to the ‘’punishment of a defendant who fails to appreciate the risk she was incapable of foreseeing’’ . This unfair decision was reaffirmed in the later case of R v Coles where no allowances for age or a non-intellectual mind were made. However, the case of R v Hardie is contradictory to the precedent set by Elliot and Coles as the mental state of the defendant was indeed considered when delivering the

Following this, the law can be clearly seen as reverting to what was set out in Cunningham. The decision to do so, was a welcome one by many. As Kimel suggests in stating, ‘’few, so it seems, will shed a tear; possibly, not too many will even notice’’ the consigned change to the meaning of recklessness in the history books. However, R v G did not evade critique with some being left disappointed in ‘’the failure of the House of Lords in considering an alternative to Caldwell or Cunningham recklessness’’ R v G, ultimately set out to clarify the law, with many agreeing that this aim was satisfied, although despite of this some may still argue that the law on recklessness is not clear as the House of Lords seemingly restricted recklessness to criminal