This week I submitted some work on the relative merits of objective and subjective approaches to determining recklessness.You may or may not understand it and you may or may not like it, but this is what it is.

Recklessness is the taking of an unjustified risk. A person may be reckless as to consequence or circumstance. It is distinct from negligence and intention and has had uncertain history in judicial interpretation. The focus of the paper is to evaluate the relative merits of actual foresight (subjective) and foreseeability (objective) approaches to determining recklessness.

Recklessness is the taking of an unjustified criminal risk and is regarded as the lesser category of mental attitude than that of the highest category of culpability (intention).^[1]

The law on recklessness, as it stands, is found in the majority rational of the House of Lords decision delivered by Lord Bingham of Cornhill in R v G and another [2003]. In R v G the objective test was overruled and the subjective test set in R v Cunningham [1957] was followed.

In the case of Cunningham, the defendant stole money from a gas meter and in doing so, he tore the meter from the wall and left the gas pipes exposed. Coal gas then seeped into the basement of the house next door and affected a woman living there. At trial, the defendant was charged and convicted of "unlawfully and maliciously administering a noxious thing so as to endanger life" under s23 Offences Against the Person Act (1861). On appeal, his conviction was quashed and it was held that:

“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) 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)”.

Under this ‘subjective’ approach, the definition of recklessness, both as to consequences and circumstances, imposes a double test: (1) whether the defendant foresaw the possibility of the consequences occurring; and (2) whether it was unjustifiable or unreasonable to take the risk (Clarkson and Keating, 2007).

Owing to Cunningham, the test for recklessness became widely accepted as a subjective test requiring foresight in fairness to the defendant (e.g. R. v Stephenson [1979]; and R. v Parker (Daryl) [1977]).

The subjective test was also the standard in earlier cases (see R. v Pembliton [1874] which is the very first case to use the term ‘reckless’) and this predisposition towards a subjective approach can be encapsulated in Ashworth’s central idea of individual autonomy and choice as the basis for desert and punishment. From these premises is born the dominant subjective approach to criminal law, and the ‘general’, ‘positive fault requirements’ of intention, foresight, knowledge and belief (Ashworth, 1991). Criminal responsibility should be based upon a concept of guilt, which means on actual mental states, hence the term ‘subjective’. (Ashworth, 1991, p 132).

In favouring a subjectivist approach, Lord Bingham in R v G states that it is neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. There are, of course, inherent problems in seeking a fault element. Lord Diplock’s objectivist enquiry (now rather archaic) on this issue in R. v Caldwell [1981] states:

“the only person who knows what the accused's mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed.”

In Caldwell the defendant had been employed by a hotel, but was subsequently dismissed by the owner and as a consequence of this, the defendant had a grievance against him. One night, Caldwell got very drunk and set fire to the hotel, where guests were living at the time, but luckily the fire was discovered in time and so no serious harm was done to any people, or to the hotel. Caldwell denied the charge of causing criminal damage with intent to endanger life or being reckless as to whether life would be endangered (under s1(2) Criminal Damage Act [1971] ) on account of the fact that he was so drunk at the time, that the thought there might be people in the hotel had never crossed his mind. Despite this, the jury found him guilty and he was sentenced to three years imprisonment.

On appeal to the House of Lords, Lord Diplock applied a wider test for recklessness and held that a person would be reckless under the Criminal Damage Act (1971), if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged, and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless gone on to take it.

In R v Lawrence [1982], which was decided on the same day as Caldwell, it was decided that the objective test was the one to be used for the charge of reckless driving contrary to s.1 Road Traffic Act (1972). So was the approach in R. v Pigg [1982] and a few other attempted rape cases.

In Elliott v C (a minor) [1983], the defendant, a 14-year-old girl of low intelligence had run away from home and was staying in a shed. Feeling cold, she poured some white spirit on the floor and set light to it to make a fire, with the result being that the shed was destroyed. Bound by the precedent, regarding the objective test, set in Caldwell, the court upheld the defendant's conviction for aggravated criminal damage, despite the minor not having anything like the characteristics of a ‘reasonable man’.

Caldwell/Lawrence is the first case to alter the law on recklessness by applying an objectivist test. Lord Diplock in his judgement held that recklessness should be given its ordinary dictionary meaning and that it is not a practicable distinction for the jury to have to distinguish between the defendant who is aware of a risk and one who is not.

In the objective model, the risk of the defendant’s actions is seen through the eyes of a ‘reasonable man’, rather than through the eyes of the defendant, as is the case with subjective recklessness. This new approach is thus distinct and post Caldwell/Lawrence competes with the subjective approach within the law on recklessness. The test is wider within the notion of the moral fault (see Ashworth’s discussion on the narrow conception of moral fault in advertent recklessness) as it embraces the hypothesis that people ought to come up to a general standard of behaviour, in fairness to the rest of society.

Seeing everyone in the society through the eyes of a prudent and reasonable man is however a departure from the orthodox positive fault requirement. Adopting an objectivist test to recklessness blurs the vital link between responsibility and criminal liability which is one of the hallmarks of a free society.^[2] In a liberal society where political freedom is valued people must be free from criminal liability and punishment unless they “voluntarily” break the law^[3] in the sense of doing something that they can properly acknowledge as wrongdoing.^[4]

Responsibility defined by the capacity and character theory, knowledge, reason, and control (which include the capacity to make choices)^[5] are the necessary attributes of capacity theory and the precise elements traded-off in an objectivist approach. In Elliott, for example, a minor was convicted for aggravated criminal damage, despite her incapacity. This outcome in the case of Elliot was described as an injustice as a direct result of the objective test.^[6]

Caldwell/Lawrence test was thus seen radical. The case of Caldwell sparked controversy and evoked scholarly outrage (see Williams, 1981; Smith, 1987) for its role in redefining recklessness.

A few years into the case of Lawrence, reckless driving was reclassified as dangerous driving in the Road Traffic Act 1988 and the authority in Lawrence was abandoned. The law in R. Pigg [1982] was abandoned in later cases favouring a subjective approach to recklessness as per Sexual Offences (Amendment) Act (1976). This was confirmed in the later case of R v Satnam [1983]. Objective mental test for serious sexual offences under the Sexual Offences Act 2003 (where the concept of recklessness is subsumed within a general test of ‘reasonable belief’ as to consent)^[7] is retained and in force.

Law Commission in the Draft Criminal Law Bill 1993^[8] has endorsed this ‘subjective’ approach. The Draft Offences Against the Person Bill 1998, cl. 14(2) of which, in favour of the subjective approach, states:

“A person acts recklessly with respect to a result if he is aware of a risk that it will occur and it is unreasonable to take that risk having regard to the circumstances as he knows or believes them to be.”

More recently, Lord Bingham in R v G overruled the objective test on footing that it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. He said that 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.

The requirement of the Cunningham test, that it be unjustifiable to take the risk was unaffected. This, according to Ashworth, is an objective element: courts have rarely discussed it, but it exerts a significant background influence. It does not depend on the defendant’s view of the matter. For example, in Dodman^[9] it was stated that it was irrelevant that the defendant did not know his conduct was wrongful and some writers argue that the concept of recklessness is an inherently political one^[10]. This is true inasmuch as a value judgment is involved, a point that can always be made when employing a value-ridden concept such as ‘reasonableness’^[11]. The advantage, however, of employing such a concept and leaving the second limb of the Cunningham test to members of the jury is that they can reflect the ever-shifting notions of social utility.

Recklessness is the taking of an unjustified criminal risk and is distinct from negligence and intention. It is the lesser category of mental status to that of intention. Early tests for recklessness were based on foresight, the subjective approach. One of the greatest merits of the subjective test is that it is based upon a concept of guilt on actual mental states. This was overturned to an objective test in the case of Caldwell. The objective model is based on foreseeability and requires the risk of the defendant’s actions be seen through the eyes of a ‘reasonable man’. Notably the test lacked any incapacity exemptions causing injustice. The authority in Caldwell/Lawrence began fading and as a direct result of R v G, is no longer valid. Law as it stands now is found in Cunningham. The test for recklessness is a subjective test in favour of the defendants.

In a liberal society where political freedom is valued people must be free from criminal liability and punishment unless they break the law by doing something that they can properly acknowledge as wrongdoing.