Recklessness and Criminal Liability
Uploaded by potter on Nov 14, 2001
Explain the role of recklessness in determining criminal liability.
In everyday language, recklessness means taking an unjust risk. However its definition in law is different to its ordinary English meaning and careful direction as to its meaning in law has to be given to the jury.
There are two types of recklessness, which exist, subjective recklessness, also known as Cunningham recklessness, and objective recklessness, which is also know as Caldwell recklessness. (Caldwell recklessness only applies to criminal damage).
For a defendant to be guilty under Cunningham recklessness he must have consciously undertaken an unjust risk. He must realize that there is a risk involved but if he continues to carry on with his conduct, then he is reckless. A case to illustrate this is R v Cunningham – Cunningham pulled a gas meter of a wall in a house intending to steal money. He broke the main gas pipe, releasing gas into the rest of the house which was inhaled by the old lady that lived there. The C/A quashed the conviction due to a miss-direction by the trial judge as to the word ‘malicious’ under S.23 O.P.A 1861-maliciously administering a poison “we wish to make clear that the test is subjective that the knowledge of appreciation that the risk of some danger must have entered the defendants mind even though he may have suppressed or driven it out”. This case defined this type of recklessness therefore called Cunningham recklessness.
Caldwell recklessness is different, firstly it only applies in cases of criminal damage. The case of MPC v Caldwell created new and much wider tests for recklessness. Caldwell was an ex-employee of a hotel and nursed a grudge against its owner. He started a fire at the hotel, which caused some damage and was charged with arson. This offence is defined in the Criminal Damage Act 1971 as requiring either intention or recklessness. On the facts there was no intention and, on the issue of recklessness, Lord Diplock stated that the definition of recklessness in Cunningham was to narrow for the Criminal Damage Act 1971. For that act, he said, recklessness should not only include the Cunningham meaning, but also go further. He said that a person is reckless as to whether any property would be destroyed or damaged if:
1. He does an act which in fact creates an obvious risk that property would be destroyed or damaged and
2. When he act he has either...