Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
10 Cards in this Set
- Front
- Back
|
Originally two types of recklessness:
Cunningham recklessness Caldwell recklessness |
Caldwell recklessness has now been abolished.
|
|
|
Reckless as to a circumstance element = when D is aware of the risk that it exists or will exist.
|
Reckless as to a result element = when D is aware of a risk that will occur.
|
|
|
Conflict between subjective and objective definition of recklessness.
|
Subjective = D is reckless if he/she foresees the risk and goes on to run it
Objective = D is reckless if he/she runs a risk that a reasonable person would have foreseen (i.e. even if they did not foresee it). |
|
|
Cunningham:
D removed a gas meter in order to steal money. Damaged a pipe whereby gas began to escape, putting many people's lives at risk. Did he foresee that risk? D claimed not. In early courts they convicted him but the HoL quashed that conviction because he didn't see the risk at that time, therefore no liability. |
Cunningham recklessness:
2 elements: (1) D was aware that there was a risk that his/her conduct would cause a particular result. (2) The risk was an unreasonable one for D to take. |
|
|
Caldwell:
D set fire to a hotel whilst he was very drunk, as revenge against the hotel owner. He pleaded guilty to criminal damage but said he wasn't reckless as to the endangerment of life. Did D foresee the risk? Unfortunately Lord Diplock redefined recklessness. Said that D will be reckless if he either foresaw risk or if the risk was so obvious that a reasonable man would foresee. Has been overruled since, though it ruled for 20 years. No longer good law. |
Caldwell recklessness (now abolished):
Ds were Caldwell reckless if: (1) they were aware of a risk, OR (2) there was an obvious and serious risk AND they failed to consider whether or not there was a risk. |
|
|
Caldwell recklessness was heavily criticised
|
Elliot v C:
14 year old girl with learning difficulties set fire to a shed. She was held to be Caldwell reckless and was therefore convicted of criminal damage. Unfair verdict. |
|
|
Caldwell recklessness got abolished
|
R v G and R:
2 boys aged 11 and 12 went camping and set fire to some newspapers under a bin. They were convicted under Caldwell recklessness. Went to HoL where Caldwell recklessness was abolished. AG's Reference (No 3 of 2003): Confirmed that Caldwell recklessness had been abolished, not just for criminal damage but all crimes. |
|
|
Criticisms of R v G and R:
- Failure of the HoL to consider an alternative to either Cunningham or Caldwell recklessness - Too easy for a D to claim that they did not consider a risk to others so be entitled to an acquittal. - Idea of risk being 'in the back of D's mind (Parker) |
R v Parker:
Is there a requirement that D consciously takes a risk? P was fined £10 plus 75p compensation to the Post Office after causing criminal damage to a telephone kiosk in anger. "Deliberate closing of the mind." CoA stretched recklessness to its limits. Having a risk in back of mind not the same as consciously taking a risk but court held this amounted to Cunningham recklessness. |
|
|
Antony Duff's 'practical indifference' concept
|
Antony Duff proposes a different test for recklessness:
Did the agent's conduct (including any risk-taking, failure to notice an obvious risk created by her actions, and any unreasonable belief on which she acted) display a seriously culpable practical indifference to the interests which her action in fact threatened? |
|
|
Criticisms of Cunningham recklessness:
- Too narrow? Is it right that a D who cares so little about others that he does not consider whether his actions might harm be acquitted? - Does is presuppose that we can draw a clear line between our conscious and sub conscious awareness? |
Reid:
Hinted at a possibly better way to establish recklessness. Why did D fail to foresee an obvious risk? If he/she has a good reason he is not reckless, but if he doesn't then he is. |
