Recklessness—The Continuing Search for a Definition
| Date | 01 August 2008 |
| Published date | 01 August 2008 |
| DOI | 10.1350/jcla.2008.72.4.313 |
| Subject Matter | Article |
Recklessness–the Continuing
Search for a Definition
Cath Crosby*
Abstract This article examines the different approaches to determining
recklessness in the criminal law and the advantages and disadvantages of
each will be explored in relation to issues of moral culpability. Whilst a
subjective definition of recklessness might seem attractive it fails to catch
all those who are morally blameworthy. In contrast, a purely objective
interpretation can lead to injustice in circumstances where the defendant
lacked the capacity to foresee the risk of harm. It will be argued that
recklessness based upon conscious advertence produces too narrow a
definition and culpable inadvertence should be encompassed by examin-
ing why no thought was given to the risk.
Keywords Mens rea; Recklessness; Culpability; Subjective and ob-
jective; Advertence to risk
This article focuses on the different approaches to recklessness resulting
from a judicial and legislative search for a legal definition and analyses
the advantages and disadvantages of each. In particular, Caldwell/
Lawrence recklessness will be scrutinised as it is submitted that the law on
recklessness is still not settled following R vG and R.1A more objective
form of recklessness that considers the capacity of the defendant will
be advocated, but not a revival of the Caldwell/Lawrence ‘Model
Direction’.
There are three2main approaches which have been employed to deal
with the concept of recklessness within the criminal law, although
others have been recognised.3These will be examined in turn, after a
brief historical background has been outlined.
In Victorian times the Criminal Law Commissioners considered the
doctrine of implied malice, now the concept of recklessness, as it applied
to murder.4Norrie notes that the Commissioners reinterpreted the
* Senior Lecturer, University of Teesside; e-mail: C.Crosby@tees.ac.uk.
1 [2003] UKHL 50, [2004] 4 All ER 765.
2 Advertent and subjective recklessness in Rv Cunningham [1957] 2 QB 396;
objective recklessness including inadvertence in Commissioner of Police for the
Metropolis v Caldwell [1982] AC 341; and the subjective test in the draft Criminal
Code (Law Commission, A Criminal Code for England and Wales, Law Com. No. 177
(1989), vol. 1, cl.18).
3 ‘Indifference’ recklessness, i.e. displaying an indifference as to whether there is a
risk or not, see R v Sheppard [1981] AC 394, R vKimber (1983) 77 Cr App R 225,
R vBreckenridge (1984) 79 Cr App R 294 and R v Satnam and Kewal (1983) Cr App
R 149, cited by Andrew Ashworth, ‘Criminal Liability in a Medical Context: the
Treatment of Good Intentions’ in A. P. Simester and A. T. H. Smith (eds), Harm
and Culpability (Oxford: Clarendon Press, 1996) 175. Norrie considers a fifth
interpretation, i.e. recklessness as committing a crime of ‘basic intent’ whilst
intoxicated (DPP v Majewski [1976] 2 All ER 142): A. W. Norrie, Law and the
Beautiful Soul (Glasshouse Press: London, 2005) 112. There could yet be another
definition added by the Law Commission’s draft Criminal Law Bill for offences
against the person: Law Com. No. 218 (1993).
4 A. W. Norrie, Crime, Reason and History, 2nd edn (Butterworths: London, 2001) 76.
313The Journal of Criminal Law (2008) 72 JCL 313–334
doi:1350/jcla.2008.72.4.513
words used by the 18th century lawyer, Sir Michael Foster, which would
have extended liability beyond foresight, restricting the concept to a
‘question of subjective advertence’ which ‘was a means of depositivis-
ing, de-moralising and thereby rendering certain the law of recklessness
with regard to homicide’.5For the sake of certainty and consistency in
decisions a more objective approach, with its inherent flaw of allowing
a jury to influence decisions by bringing to bear their own values and
opinions on what the law should be into their deliberations, was
rejected.
Cunningham recklessness
Prior to 2004, it is well known that there were two main opposing
interpretations of the term ‘reckless’, within the criminal law. The first
of these approaches came from R v Cunningham,6which maintained the
approach of the Commissioners referred to above. In Cunningham, Byrne
J had cited with approval the definition apparently7proposed by Pro-
fessor Kenny in Outlines of Criminal Law: ‘the accused has foreseen that
the particular kind of harm might be done, and yet has gone on to take
the risk of it’.8When the term ‘malicious’ was replaced by the word
‘reckless’ in statutes, starting with the Criminal Damage Act 1971,
subsequent cases followed this subjective line and Cunningham reckless-
ness was later extended and clarified in the cases of R vParker,9R v
Briggs, 10 and R v Stephenson,11 to mean that foresight of ‘some’ damage
was all that was required and that ‘knowledge or appreciation of a risk
. . . must have entered the defendant’s mind even though he may have
suppressed it or driven it out’.12
The unfortunate consequence of applying this subjective definition to
recklessness is that failing to think about a risk would not ground
criminal culpability. This establishes what Norrie terms a morally un-
substantive account of criminal responsibility,13 as a defendant could still
be morally culpable for his actions, for example by behaving with a
callous disregard for others, but by failing to consider the effect of his
actions he could not be deemed criminally reckless. The dilemma which
arises as a result of Cunningham is whether it is appropriate to adopt a
narrow liability based solely upon whether, as a question of fact, the
accused foresaw the risk of harm. Admittedly, this approach14 clearly
establishes the morally censurable behaviour of D in that he exercised a
5 Above n. 4 at 77.
6 [1957] 2 All ER 412.
7 See J. Horder, ‘Two Histories and Four Hidden Principles of Mens Rea’ [1997] 113
LQR 95 at 114, who submits that the ‘definition’ was in fact J. W. C. Turner’s
misleading paraphrasing of Kenny’s more precise definition in Outlines of Criminal
Law (1902) 147–8.
8 [1957] 2 All ER 412.
9 [1977] 2 All ER 37.
10 [1977] 1 All ER 475.
11 [1979] QB 695 at 704.
12 Ibid. per Lord Lane.
13 A. W. Norrie, Law and the Beautiful Soul (Glasshouse Press: London, 2005) 84.
14 Now adopted in the leading case of R vG and R [2003] UKHL 50, [2004] 4 All ER
765 discussed below.
The Journal of Criminal Law
314
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