Recklessness is the state of mind where
people knows that in there is a risk in commission of a certain act, regardless
of that risk people may go on and do that act anyway. The reason for carrying
out such an act is, may be the risk involved is a minimal one or may be it
involves significant risk of harming person and/or property but the person does
not care about it or does not give due weight to that probability of risk. Only
the second kind of recklessness is culpable or in other words only the conscious
running of an unjustified risk is considered reckless in criminal law.
Recklessness, in law, can be determined
both subjectively and objectively. But the problem with objective recklessness
is that it can become over inclusive and cause injustice. In defining the
objective recklessness Lord Diplock in R
v Caldwell
"[To] decide whether someone has been 'reckless' as to
whether harmful consequences of a particular kind will result from his act, as
distinguished from his actually intending such harmful consequences to follow,
does call for some consideration of how the mind of the ordinary prudent
individual would have reacted to a similar situation."
It follows from this statement that while
inferring objective recklessness, personal attributes of the wrong doer is not
considered. In fact his actions are judged on the basis of the actions of a
reasonable man. This reasonable man is not tainted by the human weaknesses but
an individual having all the positive attributes of humanity. Thus when the
wrong doer is a minor of 14 years age, with learning difficulties, her age and
learning difficulties are not considered to infer her state of mind, and was
held that a reasonable person would not have done what she did in her exact
same circumstances (Elliott v C (1983) 77 Cr. App. R. 103).
Thus in finding the reckless state of mind
all a person needs to ask is first, whether the wrong doer has done something
which was obvious to create significant risk of damage to person or property.
Second, that the wrong doer did so without giving any thought to the
possibility of there being any such risk, or, having recognised that there was
some risk involved, had nonetheless gone on to take the risk (Lord Diplock in R v Caldwell).
Due to this unfairness of the objective
test, House of Lord approved, in the case of R
v G and another, the subjective test that was adopted in R v
Stephenson [1979]. Lane LJ, in Stephenson, explained the subjective
test as, "A man is reckless when he carries out the deliberate act appreciating
that there is a risk that damage to property [or
person] may result from his act." Here 'appreciating
that there is a risk' is important and unless the wrong doer is incapable of
appreciating that risk he would not be reckless, thus Lane LJ continues,
"If he had the necessary knowledge or foresight and his bad temper merely
caused him to disregard it or put it to the back of his mind not caring whether
the risk materialised, or if it merely deprived him of the self-control
necessary to prevent him from taking the risk of which he was aware, then his
bad temper will not avail him."
In R v G, Lord Bingham, in his dicta said, "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 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."
First part of this test focuses on the
'significant risk to person or property' and the second part focuses on the
'foreseeability of that risk', it is to be noted that the subjective test of
the recklessness imposes a double test.
1) Whether the
defendant foresaw the possibility of the consequence occurring; and
2) Whether it was
unjustifiable or unreasonable to take the risk.
Summary
It can be summarised in the following way;
recklessness is the state of mind where people does something, inspite of
an obvious risk to some person or property. This state of mind can be
identified either subjectively or objectively. But objective recklessness can
sometime cause injustice as it does not take into account the personal attribute
of the actor, as in the case of Elliot. A
subjective recklessness can, on the other hand, overcome this problem. But
a subjective recklessness test will not avail the person a defence of
provocation or loss of self control, as stated by Lane LJ in Stephenson.
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