Monday, 12 September 2011

Recklessness

Recklessness

There are two types of Recklessness

1)   Subjective Recklessness: Cunningham (1957)
The defendant was charged under s23 of the Offences Against the Person Act 1861 for ‘maliciously administering a noxious thing.’ His initial conviction was quashed because Cunningham had not foreseen the risk of someone inhaling gas. The definition of recklessness was laid down in:

a)    Did the defendant foresee the possibility of the consequences occurring.
b)    Was the degree of risk unjustifiable.

OR the ‘conscious taking of an unjustifiable risk.’

2)   Objective Recklessness
This is often referred to as Caldwell Recklessness. This is where

‘The defendant creates an obvious risk and either he gives no thought to it or having given thought to it, he nevertheless goes onto take it.’
Caldwell (1981) Caldwell Recklessness was criticised for its harshness as it does not attempt to consider the state of the mind of the defendant. Elliot v C (1983) This case involved a subnormal girl who committed arson by setting fire to a neighbours shed. Her mental abnormality was not considered as she was compared to a reasonable person.

Caldwell continued to exist for cases involving Criminal Damage and Arson but it was finally declared to be obsolete in the case of G and R  (2003) two boys caused £1 million worth of damage by setting fire to a wheelie bin. They thought the fire would go out and did not think that it would spread. They were only 11 and 12. The case appealed to The House of Lords and Caldwell was declared unlawful due to its inflexibility.

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