Recklessness in criminal cases
Recklessness in criminal cases

The following Corporate Crime guidance 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

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 himself. The principal was established in the case of R v Cunningham.

The second type of recklessness was known as Caldwell recklessness. 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.

The objective test of recklessness was abolished following the House of Lords decision in 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 Cunningham test of recklessness will therefore continue to apply.

Cunningham recklessness

The Cunningham approach to recklessness is now referred to as standard recklessness. Cunningham recklessness requires that the accused foresees the consequences of his actions as being probable or even possible and

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