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Recklessness Redefined
Published online by Cambridge University Press: 16 January 2009
Extract
The decisions of the House of Lords in Caldwell and Stephen Lawrence can be read in widely differing ways. Taken at their face they are a slap-happy repudiation of the concept of recklessness that has been carefully developed in the last few years, going back to the notion that recklessness includes inadvertent negligence and working a profoundly regrettable change in the criminal law. If, on the other hand, each decision is interpreted in the light of its facts, with a sentence from one of the less conspicuous parts of Caldwell transferred to one that is thrust more prominently upon our attention, and if, as the result of this, the expressed ratio decidendi in each case is materially rewritten, they can be seen as imposing acceptable restrictions upon the requirement of a mental element in crime.
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References
1 [1981] 2 W.L.R. 509.
2 [1981] 2 W.L.R. 524.
3 At p. 514D.
4 At p. 515C.
5 At p. 516B.
6 At p. 533A.
7 At p. 535D.
8 At p. 529H.
9 [1980] 3 W.L.R. 960.
10 At p. 515F.
11 [1980] 3 W.L.R. at pp. 968H, 969C.
12 See Brady in 43 M.L.R. 388–390.
13 For the argument contra, that emotional attitudes ought to be relevant to a judgment of recklessness, see R. A. Duff in [1980] Crim.L.R. 282. In support of the view that inattention can be as culpable as subjective recklessness he gives the following example (p. 290): “ In checking an advertisement by my firm, I may be so intent on improving its style that I am blind to the possibility that it might be false or misleading.” If the person in question is responsible within the firm only for checking the style, he is not at fault in not considering the substance. If he is responsible for the substance but believes that the statement is true because he believes that it has been checked by someone else, he is not reckless. If he knows that he is responsible and has no idea as to the truth of the statement, he is subjectively reckless.
As another example, on p. 291 Mr. Duff gives: “ If I intend to injure someone seriously, I may not realise that this might kill them… because it ‘ just doesn't occur to me'—I am blind to that aspect of my action.” Obviously this must be accounted reckless if any ordinary person would realise the danger of causing death (even realisation of slight danger of death would be sufficient). Take for instance a terrorist “ knee-capping,” where the victim is left without medical attention. In my opinion anyone would realise that such an operation created some danger to life, and if I were a juror I would refuse to credit the terrorist's protestations that he did not realise it. If the victim were given medical attention the terrorist might be believed on the issue of recklessness, and in that case he could be made liable for the death only if the law provided for strict liability in such circumstances.
14 [1957] 2 Q.B. 396.
15 [1981] 2 W.L.R. at p. 513G.
16 Cmnd. 7844.
17 At p. 513G.
18 At p. 514A.
19 At p. 514C.
20 An element of foresight is involved in intention, but intention is provided for separately in s. 8.
21 Sever v. Duffy [1977] Crim.L.R. 484.
22 [1981] 2 W.L.R. at p. 530B.
23 At p. 534A.
24 [1957] 2 Q.B. 396.
25 By an oversight Lord Diplock said that it turned on the Malicious Damage Act.
26 Caldwell [1981] 2 W.L.R. at p. 513E.
27 At p. 514C.
28 Law Com. No. 28.
29 [1981] 2 W.L.R. at p. 515E.
30 At p. 357.
31 [1973] A.C. 854.
32 [1981] 2 W.L.R. 530D.
33 See Cunningham, n. 24 above; Flack v. Hunt (1980) 70 Cr.App.R. 51.
34 N, 11 above.
35 [1976] Q.B. 421.
36 It is possible that, on a charge under the Offences against the Person Act 1861, s. 20, the issue of recklessness for the element of“ malice ” is subjective while for the element of assault implied in the verb“inflict” it is objective!
37 [1975] A.C. 55.
38 [1961] A.C. 290.
39 Caldwell [1981] 2 W.L.R. at p. 516 C.
40 See [1981] 3 W. L. R. at p. 516D.
41 [1961] Crim.L.R. 114, 547.
41a It has been objected to me that at p. 513C Lord Diplock was discussing pre-Caldwell recklessness as conceived by Kenny and the Court of Appeal in Cunningham; he did not mean his remark to apply to Caldwell recklessness. My reply would be that Lord Diplock was contrasting the ordinary, popular, dictionary meaning of recklessness with the “ restricted meaning” attached to it by Kenny and the Court of Appeal. The quoted remark represented his interpretation of popular recklessness, which he intended to canonise as the new statutory recklessness.
42 [1979] Q.B. 695.
43 Cmnd. 6244, paras. 10.29, 18.42.
44 [1981] 2 W.L.R. at p. 534G.
45 At p. 535E.
46 I am indebted to Mr. J. R. Spencer for calling this point to my attention
47 At p. 534G.
48 At p. 535G.
49 I was at first at a loss to explain the word “ serious,” and am grateful to Mr. P. R. Glazebrook for providing me with what now seems to be the clear answer, as well as for reading my paper in draft and making his usual perspicacious comments.
50 At p. 535H.
51 [1967] 2 Q.B. 981.
52 [1981] 2 W.L.R. at p. 513G.
52a Apart from the point that “obvious risk ” in (1) (the negative test) can reasonably be read as objective, while “ such risk ” in (2) (the positive test) may be read as conditionally subjective.
53 I am grateful to Mr. J. R. Spencer for points 2 and 3.
54 At p. 516D.
55 (1889) 14 App.Cas. 337.
56 Or, at least, being sufficiently indifferent to the risk to be prepared to run it in order to secure some personal end.
57 Above n. 11.
58 [1967] 2 Q.B. 981.
59 Cmnd. 7844.
60 Law Com. No. 89.
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