Objective recklessness

Does objective recklessness still have a role to play? - Justin Santiago


Although strict objectivity is no longer demanded in recklessness, there is still a need for an objective element to crimes involving recklessness. This is to enable parties to avoid escaping liability based on their foreseeability alone. Thers is therefore a middle of the road approach taken by judges to enable some level of objectivity in certain crimes such as those involving causing injury to persons.

Mens rea is concerned with the state of mind of one who has been criminally accused. There are two states of mind which are intention and recklessness of which recklessness is less culpable than intention. A person who does not intend to cause a harmful result may take an unjustifiable risk of causing it and this is would constitute recklessness.

Crimes which involve recklessness are found in Section 47 of the Offences Against the Person Act 1861 – assault occasioning actual bodily harm and the mens rea required is intention or recklessness as to the common assault or battery.

Recklessness has always been a contentious point and the courts have fluctuated between a subjective and an objective approach in determining the standard of recklessness. The subjective approach or Cunningham recklessness (after the case of R v Cunningham) requires proof of a taking of an unjustifiable risk and proof that the defendant was aware of the existence of the unreasonable risk. It is a subjective form of risk focusing on the defendant’s own perception of risk.

This was the accepted definition of risk until the controversial decision in R v Caldwell where it was stated that cases involving criminal damage requires proof of an obvious risk and the defendant has not given any thought to the possibility of there being any such risk or has recognised that brisk but nevertheless has gone on to do it. The key word here is obvious which means a reasonable person would have seen the risk even if the defendant did not. This was known as the objective test or Caldwell recklessness.

This direction contained a lacuna wherein D would not be reckless if he had considered the matter and decided that there was no risk. Caldwell also failed to allow for conviction on the basis of D having no state of mind as to the risk of the proscribed harm. This had the potential of working harshly in cases of young people and those whose capacity to see risk was diminished for reasons which involved no fault on their part.

This was the case in Elliot v C (a minor) where a 14 year old schoolgirl with a learning disability was charged with criminal damage for taking the risk of lighting up a fire for warmth which caused damage, a risk which a reasonable person would have foreseen. The harshness of the Caldwell test which is purely objective was evident in this case. In the words of Sir John Smith, “the decision sets back the law concerning the mental element in criminal damage in theory to before 1861.”

Until R v G and Another, objective and subjective recklessness operated side by side with Caldwell recklessness applying to criminal damage and Cunningham recklessness applying to all other offences involving and element of recklessness.

In R v G and Another two boys added 11 and 12 threw some lit newspapers under a bin which caused 1 million pounds worth of damage. The House of Lords overturning the decisions of the Court of Appeal and the trial judge reviewed the history of the term recklessness and unanimously overruled Caldwell but it did not strictly follow Cunningham. The reformulation of the subjective test was based on the Draft Criminal Code which translated into a test which asked whether the defendant was aware of the risk of the damage/destruction of property and in the circumstances whether it was unreasonable for him or her to take that risk. This added an element of objectivity into the Cunningham test for criminal damage.

Other reformulations of the Cunningham test have been evident in cases involving injury to the person that involved some element of objectivity.

The mens rea for a S. 47 offence follows R v Savage confirming R v Roberts is the same as that required for assault and for battery i.e. intention or recklessness as to the causing of the apprehension of the use of immediate and unlawful force or intention or recklessness as to the application of unlawful force. There is no requirement of intention or foresight in respect of the injury caused by the assault or battery. The application of the principle of half mens rea makes it easier to establish liability under S.47. A defendant who has the actus reus and mens rea for common law assault or battery would also be liable for the more serious offence under S.47 even if the harm is greater than he planned or foresaw.

The mens rea for a S.20 offence follows DPP v Parmenter confirming R v Mowatt that the standard of recklessness is subjective based upon what the defendant actually foresaw. Foresight of consequences was required but not foresight of their magnitude. The test of recklessness required for a section 20 offence is foresight of a risk of some harm albeit not harm of the severity that actually occurred. This catches defendants who foresee that their actions will cause some harm but who do not expect it to be so serious that it amounts to grievous bodily harm.

Further suggestions have been put forth to stike a compromise between the subjectivism of Cunningham and the objectivism of Caldwell. These include endowing the reasonable man with the personal physical characteristics of the particular accused (Simistar and Sullivan in Criminal Theory and Doctrine, pg 152) which was supported in the case of R v G.

There is also the argument that there is a place for objective tests in situations where a person may reasonably fail to foresees a consequence that follows from his act (blameless inadvertence) or offences of strict liability which do not require intention, recklessness or even negligence as to one or more elements in the actus reus. This means the defendant can be convicted even if he was unaware of the risk but ought to have been aware of it. In such cases Caldwell recklessness may have some application.