Advantages And Disadvantages Of Reasonable Person

The term “reasonable person”, which was also known as the “reasonable man” in the past, is a prevalent and important term in criminal law legislatures in countries that have adopted the common law system. This is due to the fact that the law of murder and defences of duress, provocation, and self-defence rely on this standard. In common law countries, the use of the reasonable person standard is grounded upon the faith in a human being’s reason as the foundation of the law. However, it is believed that the usage of a hypothetical person may not be convenient in criminal law as it lacks accuracy and fair means to evaluate complex behaviour like the human behaviour. In this essay, I will identify the disadvantages of the reasonable person standard

Judges call upon the reasonable person to assess the conduct of the defendants in a court case. If a court is faced with cases that have the core, namely actus reus and mens rea, of criminal behaviour present - as it is the case with intentional acts of murder, assault, rape or theft - the reasonable person standard is not a requirement because the criminal conduct constituted prima facie wrongdoing. By definition, prima facie means that something is “sufficient to establish a fact unless disproved” (Cornell Law School, n.d.). But how must a person act to avoid judgement that they have wronged another person? The law in the United Kingdom’s criminal law system states that one must act like a reasonable person would, namely as an ordinary citizen who acts according to community behavior and rules (Mullender, 2003). In the example of establishing recklessness, courts in England and Wales make use of the so-called Cunningham test, a subjective test where the judges look at a case from the defendant’s perspective instead of the Caldwell test which was the objective equivalent (Carr & Johnson, 2013). Critics argue that the reasonable person is a very superficial standard rather than a structured analysis of the circumstances (Nourse, 2008). The central feature of the reasonable person is whether they meet social expectations and how one should evaluate certain situations and respond to

Furthermore, another issue arises when an offender is compared to the reasonable person as a standardised role model and it becomes apparent that one may demand too much from this particular human being. However, if the judgement gets altered in order to fit the actual defendant and his characteristics, the hypothetical reasonable person will disappear due to the degree of individualisation and the standard becomes obsolete (Nourse, 2008). Often, courts will equal reasonable with normal which can cause complications (Moran, 2010). Moran (2010) uses the example of the decision of the Australian High Court in McHale v Watson where she argues that judges have a higher tolerance for wrongdoing in children, and especially boys, because they identify carelessness as “boys will be boys” (Moran, 2010). In this case, a 12 year old boy injured a girl on the playground by throwing a sharp object toward her head. Henceforth, definitions of negligence and recklessness should not include the reasonable person as it might be read