“It is now arguable that the ruling in
recklessness
is virtually indistinguishable from negligence”
The decision in Commissioner of the Police for the Metropolis V
Caldwell 1 is widely accepted as having serious implications
on how the criminal law understands recklessness. Critics argue though whether
the objective test created leaves negligence and objective recklessness as
interchangeable principles.
Whilst many crimes require an intent by the
accused, for him to be found guilty, some crimes will also allow recklessness
in its place. The directions given to the jury in defining recklessness have
changed over time, with the wording often vital to the application of the law.
In everyday language recklessness means the taking of an unjustified
risk. However, the test for recklessness established in
accused has either not given any thought to the risk involved or has
recognised that there is some risk involved but gone ahead with it anyway.
Negligence is where the defendant has fallen below the standards expected of a
reasonable person.
On the face of it, it would appear that the second limb is very close
to negligence. However, there are certain qualifications to the
In R V Lawrence 3, Lord Diplock
indicated that for a finding of recklessness, something more than simple
negligence is needed. He insisted that
there should be a requirement for an “obvious and serious risk” 4
established. This need for the risk to be ‘obvious and serious’ (reckless)
gives it distinction from a risk being merely ‘obvious’ (negligence). This was
endorsed by Lord Goff in R V Reid 5 for reckless driving when he stated that
for liability there must be a “serious risk of harm.” 6
He also added “the harm must be
more substantial than the kind of damage associated
with an error of judgment. The risk of serious harm as opposed to a serious
risk of harm is another element of objective recklessness which is not a
requirement for ordinary negligence.
The need for a risk of serious harm for objective recklessness was
encapsulated in
In Reid 5, Lord Ackner saw it
appropriate to draw an analogy of a swimmer about to dive to illustrate the
‘moral turpitude’ required for recklessness. If a swimmer dives from a high
diving board over a busy swimming pool, having overlooked the risk of collision
with someone underneath, then he is morally guilty and is acting recklessly.
However, if he dives from the side of the pool, again having overlooked the
risk of collision, he is negligent but not reckless. There is not the same
‘serious risk of harm’.
The issue of capacity concerns the characteristics of the
accused. Whilst the law of negligence
follows what a reasonable person with the defendants
characteristics would have done in the particular circumstances, the
An unsuccessful attempt to moderate the rule was made in R V R 10,
a case where marital rape was first recognised as a crime. The counsel for the
accused unsuccessfully argued that in deciding what is ‘obvious’ to the
reasonable person, that person should be taken as having the permanent
characteristics of the accused. Though unsuccessful in these persuasions, the
House of Lords allowed
moderation to the rule in Reid by allowing capacity to be
relevant only where there is a sudden loss of it, such as with a heart attack
whilst driving. In these situations, objective recklessness and negligence are
a little closer together.
Whilst the tests developed in
The
Whilst a test of negligence would find those relying on the Caldwell
lacuna guilty, it must not be thought that the loophole is saving lots of
defendants with Solicitors persuading clients to claim they examined a risk and
believed there was none. In fact “It is interesting to note that despite
judicial acceptance of the “lacuna”, there has been no case to date in which a
defendant has actually escaped liability on the basis of having ruled out the
risk.” 12 It must be appreciated that the practicalities of
the matter leave proving that what would be obvious to the reasonable man having
been considered and dismissed as without risk being very hard to prove to an
often sceptical jury.
Whilst
objective recklessness had considerable influence in the
1980’s but its importance has since diminished. Even the decision in
It is also uncertain whether
The future of objective recklessness looks bleak with possible reforms
on the horizon leaving any relationship between objective recklessness and
negligence irrelevant. The Law Commissions Criminal Liability (Mental Element)
Bill defines recklessness in subjective terms, reverting back to the test
originally in Cunningham 2.
Proposals for reforming the standard imposed by the reasonable man
could however benefit the
in Elliot 8 and Coles 9. It would
also leave
If Objective recklessness is to survive, it is likely that it will
remain limited to criminal damage as judges shy away from using it elsewhere.
There is however a long standing relationship between gross negligence
manslaughter and the principles found in
In examining the relationship between objective recklessness and
negligence, it would be appropriate to distinguish between two types of
negligence. Gross negligence requires less care than ordinary negligence. For
example driving without due care and attention (ordinary negligence) is covered
by section 3 of the Road Traffic Act 1988. On the other hand, gross negligence
would be when the driver “falls far below what would be expected of a
competent and careful driver” (emphasis added) 16.
Going back to an earlier example, the diver who dives from the high board over
a busy pool without considering anyone beneath him would be grossly negligent
whilst the diver who dives off the side of the pool with the same lack of
regard would be committing ordinary negligence.
In conclusion, whilst ordinary negligence and
One major difference between objective recklessness and negligence is
in the scope. It is yet to be examined by a court whether omissions can be
covered by objective recklessness as only positive acts are specifically
mentioned in the test.
The future of objective recklessness is still cloudy. If we are to
equate it with gross negligence, leaving it as a test may encourage people to
think more about risks before taking them whilst being insensitive to the
rights of others is not necessarily blameworthy-for example in the case of
motor accidents caused by negligence, slow reactions or awkwardness could be to
blame.
Whilst
1.COMMISSIONER OF THE POLICE FOR THE METROPOLIS V
2.R V
CUNNINGHAM (1957) 2 QB 396
3. R V
4. ibid
5. R V REID (1992) 95 CR APP R 393
6. ibid
7. ibid
8. ELLIOT V C (A MINOR) (1983) 2 ALL ER 1005
9. R V COLES (1995) 1 CR APP R 157
10. R V R (1992) 1 AC 599
11. CHIEF CONSTABLE OF
12.
13. R V ADOMAKO (1994) 2 ALL ER 79
14. R V SPRATT (1990) 91 CR APP R 362
15. SATNAM AND KEWAL SINGH (1983) 78 CR APP R 149
16. ROAD TRAFFIC ACT 1988 S2A
BIBLIOGRAPHY-
CRIMINAL LAW: CATHERINE ELLIOT AND FRANCES QUINN 3RD
EDITION
CRIMINAL LAW REVISION WORKBOOK: CONSULTANT EDITOR LORD TEMPLEMAN
CRIMINAL LAW THEORY AND DOCTRINE: AP SIMENSTER AND GR SULLIVAN
CRIMINAL LAW: PETER SEAGO, 3RD EDITION
CRIMINAL LAW TEXT AND MATERIALS: CMV CLARKSON AND HM KEATING
ENGLISH LAW: DENIS KEENAN, 12TH EDITION
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