Recklessness Could Still Be a State of Mind
| Author | Barry Mitchell |
| Published date | 01 August 1988 |
| Date | 01 August 1988 |
| DOI | http://doi.org/10.1177/002201838805200309 |
| Subject Matter | Article |
RECKLESSNESS
COULD
STILL
BE
A
STATE
OF
MIND
Barry Mitchell*
In an article published recently in the Criminal Law Review,
D. J. Birch argued that, in relation to the meaning of recklessness,
the concept of foresight should include references to attitude as
well as to awareness.' She also warned that it would be unwise to
assume automatically that the person who thinks about the possible
harm that might ensue from a course of action and then takes that
course of action without being aware of the risk he is in fact taking,
falls outside either limb of the definitions of recklessness as
expounded by Lord Diplock in Caldwell? The object of this article
is to persuade the reader that in any notion of recklessness, the
court should have regard to relevant characteristics of the accused.
Awareness and Attitude
The traditional, sometimes called "subjective", understanding of
recklessness is based on
D's
awareness that he is taking a risk
which he ought not to take." Birch argued that it is right to
treat reprehensible attitudes epitomised in phrases such as "the
defendant couldn't care less" or "he was different" as being
illustrations of reckless behaviour. Liability may be justified on
the ground that in the face of an obvious risk, D simply did not
trouble to think about it. He possesses all the relevant knowledge
and could easily bring it to the forefront of his mind if he chose to
do so. The alternative interpretation which Birch acknowledges is
that D, whilst not making a cold-blooded choice based on actual
*Dept. of Legal Studies, Coventry Polytechnic.
ID. J. Birch. "The Foresight Sage: The Biggest Mistake of All?" [1988]
Crim.L.R. 4-18.
2[1982] A.C. 341 &354.
JOften referred to as "Cunningham" recklessness after the case of that name;
see [1957]2 O.B. 396.
300
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