Recklessly
From CrimeLine from Andrew Keogh
See also:
- Intoxication
- Recklessness in Criminal damage
- Recklessness in assault
- ATTORNEY GENERAL'S REFERENCE (No 3 of 2003 [2004] 2 Cr App R 23
- Intention in English law
Recklessness: A person should be aware that a risk exists or will exist and it should be unreasonable in the circumstances known to the person for them to take that risk. Recklessness is a subjective test in keeping with a basic principle of criminal law that there should be a culpable state of mind before any conviction for serious crime.
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Brady, R. v (19 October 2006)
Brady, R. v Rev 1 [2006] EWCA Crim 2413 (19 October 2006) The defendant spent the evening drinking with friends at a nightclub. At one stage he hoisted himself up onto some railings of a gallery which overlooked the crowded dance-floor. A prosecution witness stated that the defendant then deliberately jumped from the railing. It was common ground that the defendant landed on the victim, breaking her neck and rendering her quadriplegic. The defendant was tried on an indictment containing one count of inflicting grievous bodily harm, contrary to s 20 of the Offences against the Person Act 1861. His case was that he had lost his balance whilst sitting on the railing and had fallen accidentally. The judge left the case to the jury on the basis that the prosecution had to prove three elements, namely, that the defendant had caused the victim grievous bodily harm, that he had done so unlawfully, and that he had done so maliciously. The only issue at trial related to ‘maliciously’. The judge directed the jury as to that ingredient, and stated that there was only one issue for them to decide, namely, recklessness. In the event, the defendant was convicted and was sentenced to two years’ imprisonment. In his sentencing remarks the judge stated that he was sentencing the defendant on the basis that it was a real possibility that the jury had not convicted him on the basis that he had jumped. The defendant appealed against conviction.
He contended that the judge had erred in failing to direct the jury that the prosecution had to establish that he had foreseen an ‘obvious and significant risk’ of injury to another by his actions, or would have done had he been sober. Consideration was given, inter alia, to the adequacy of the judge’s summing up as a whole in the context of the evidence and issues in the case.
The court ruled:
- (1) It was unarguable that, as a matter of law, a judge was bound to qualify the word ‘risk’ by the words ‘obvious and significant’ and that, without such qualification, any directions as to recklessness were fundamentally flawed.
- (2) As a rule, it was very much a matter for a trial judge to decide how he wished the structure his summing up. However, he was still required to ensure that the jury were not only directed accurately on the law, but also directed in such a way that the issues and the defence case were put before them in a way that they could readily understand. Bearing in mind the fact that it was not blameworthy to do something involving a risk of injury to another where, for reasons other than self-induced intoxication, one genuinely did not perceive the risk, whether through stupidity or lack of imagination, the way that the summing up had been structured and the cumulative effect of the judge’s directions as a whole, it was doubtful that it had been made sufficiently clear to the jury that:
- (i) the test of recklessness was not an objective test and
- (ii) the question of recklessness was very different depending on which version of events they accepted. In the circumstances, there was a very real danger that the jury had convicted the defendant on a false basis, in that the jury might have found that the defendant had acted stupidly, was guilty of causing the victim to suffer grave injuries and was, therefore, guilty of inflicting grievous bodily harm. In all the circumstances, the conviction was unsafe and would be quashed.
R v Cunningham [1957] 2 QB 396
The concept of "malice" was authoritatively considered by the Court of Criminal Appeal in R v Cunningham [1957] 2 QB 396. The defendant had broken a gas meter to steal the money in it with the result that gas escaped into the next-door house. The victim became ill and her life was endangered. The defendant was charged under section 23 of the Offences Against the Person Act 1861 with "maliciously administering a noxious thing so as to endanger life". The Court of Appeal, allowing the defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof that he intended to cause the harm in question, or had been reckless as to whether such harm would be caused.
In considering the offence contrary to section 23, Byrne J, giving the judgment of the court, said at p 399:
- "... in any statutory definition of a crime 'malice' must be taken not in the old value sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm which in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured."
For the purposes of section 20 of the 1861 Act, the required mental ingredient of the offence is established if the defendant was reckless in the sense formulated in R v Cunningham [1957] 2 QB 396, as approved in R v Savage; Parmenter [1992] 1 AC 699. In short, if he knew or foresaw that the complainant might suffer bodily harm and chose to take the risk that she would, recklessness sufficient for the purposes of the mens rea for section 20 was established.
Judicial Studies Board: Specimen Directions
Recklessness in criminal damage
Recklessness in Criminal damage
Recklessness as defined by the House of Lords in R v G [2004] 1 AC 1034. Bingham LJ. stated that a person acts 'recklessly' with respect to:
- (i) a circumstance when he is aware of a risk that it exists or will exist;
- (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.
Regina v. G & Anor] UKHL 50 (16 October 2003)
Regina v. G & Anor [2003] UKHL 50 (16 October 2003)
In Regina v. G, Lord Bingham of Cornhill considered the meaning of the word "reckless" in section 1 of the 1971 Act and the manner in which it had been construed, by the majority, in Caldwell. Reference was made to Cunningham. Lord Bingham stated that "in treating this authority as irrelevant to the construction of "reckless" the majority [in Caldwell] fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued section 1 of the Act" (paragraph 29). Lord Bingham added at paragraph 32,:
- " First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443 one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."
Lord Bingham's conclusion, at paragraph 41, was:
- "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."
When expressing agreement with the reasons given by Lord Bingham for departing from Caldwell, Lord Steyn stated, at paragraph 58,:
- "That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction. Experience before Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained, if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive: [412C]. One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences. Moreover, the endorsement by Parliament of the Law Commission proposals could not seriously have been regarded as a charter for the acquittal of wrongdoers."
- Lord Steyn also referred, at paragraph 55, to "…..the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant".
Booth v Crown Prosecution (2006)
In Booth v Crown Prosecution (2006) EWHC 192 (Admin) the Divisional Court upheld the defendant pedestrian's conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. The defendant in his evidence said he had been drinking and smoking drugs. He described himself as "tipsy", but said that he knew what he was doing. He said that he had shouted at someone that he had seen on the other side of the road. He said he did not look where he was going or whether it was safe to cross. He did not judge the speed of the car, but he did say that he thought he could only make it across the road if he ran. He said he did not intend to get himself run over and he had no reason to jump on the bonnet of the car. He said he did not intend to cause any damage and he did not intentionally come into contact with the car.
Judicial Studies Board Recklessness - in Criminal Damage
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