Recklessness in criminal cases

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Recklessness in criminal cases
  • What is recklessness?
  • Cunningham recklessness
  • Recklessness and Re G
  • Will subjective recklessness allow wrongdoers to escape conviction?
  • Subjective recklessness and the state of mind of wilfulness
  • Cunningham recklessness and the malicious state of mind
  • Recklessness and self-induced intoxication

Recklessness in criminal cases

What is recklessness?

In respect of some statutory offences and common law crimes the prosecution are required to prove a mental element of recklessness on the part of the defendant.

Recklessness means unjustified risk taking on the part of the accused.

Prior to the House of Lords decision in Re G there were two types of recklessness, depending on the substantive offence charged. The first type of recklessness was subjective recklessness, that is an accused must have foreseen the risk themselves. The principal was established in the case of R v Cunningham and so this was called ‘Cunningham recklessness’.

The second type of recklessness was known as ‘Caldwell recklessness’ (from the case of R v Caldwell). This required an objective test, that is whether the risk would have been obvious to a reasonable person, irrespective of whether the accused foresaw the risk.

In its decision in Re G, the House of Lords departed from the objective test of recklessness and its earlier decision in Caldwell. It held that foresight of consequences remained an essential ingredient of recklessness in the context of the offence of criminal damage. See further below: Recklessness and Re G.

Although the decision in Re G was in the context of criminal damage, it is clear from the case law that for offences that can be committed recklessly the test will be subjective. The

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