Recklessness on the other hand, generally involves taking an unjustifiable risk with the awareness of that risk. 15 The uncertainty surrounding this concept arises as to the forms of recklessness; namely the subjective and objective form. Clarifications to these forms have posed numerous problems in the English criminal law system.
The original definition of recklessness was in the subjective form, this was established in Cunningham16 which states that the defendant must himself have foreseen the possibility of the risk occurring and unjustifiably taken that risk (as manifested in the case of Stephenson17). In 1989, the House of Lords in Caldwell18 introduced the objective form of recklessness. Lord Diplock held that recklessness was to be determined according to what the 'ordinary, prudent individual' would have foreseen.
This stirred up controversy among legal thinkers and the judiciary. Supporters of the objective form are of the opinion that the definition given in Caldwell is comprehensive and justified while academics such as Professor Smith disagree and argue that the subjective form 20is the only just/impartial way of analysing recklessness as it concentrates on what that particular individual did foresee; furthermore, it makes the law less complex; as in the case of G and another.
The test in Caldwell has thus been overruled by the House of Lord and reforms have been made in both the Draft Criminal code (1989)22 and the Draft criminal law Bill (1993)23 where the Law Commission defined recklessness in the subjective sense. Nevertheless, there is a huge overlap between Recklessness and Intention (oblique intention) 24 due to the fact that, the 'foreseeable consequence' plays a key role in their definition.
25 Attempts have been made by the courts and academics to distinguish between them stating that a consequence foreseen as virtually certain is intention (e. g. murder), while one foreseen as highly probable would be an evidence of recklessness(e. g. manslaughter or attempted murder). 26 Alternatively, negligence can be defined as a failure to conform to objective standards of carefulness; that is, an individual's failure to exercise care and foresight as a reasonable man would.
This definition creates disparity among scholars as to whether negligence can be properly described as an element of mens rea as it is often used to impose liability on defendants in civil litigation (Lord Atkin in Andrews v DPP case28); with the exception of 'gross' negligence manslaughter29 as exemplified in R v Misra. 30 Additionally, the doubt surrounding negligence is also due to the fact that it overlaps with recklessness in its interpretation.
However, the courts and academics have made efforts to distinguish between these elements; stating that a negligent wrongdoer is unaware of the risk of harm while a reckless wrongdoer knowingly chooses to take a risk which brings about harm. 32 In the sense that, the former addresses objective standards while the latter deals with subjective standards. 33 In spite of this, the number of crimes that are in effect crimes of negligence has grown as a result of an increasing trend to convert 'strict liability' into crimes of negligence.
Successively, further controversies have been raised as to the understanding of this element. Therefore, it is only rational to conclude from the analysis above that the English criminal law system does not give a clear cut delineation of these concepts of mens rea. This results in the uncertainty surrounding the appropriate meaning to be attributed to intention, recklessness and negligence. Hence, raising speculations as to how these elements should be interpreted, either as a matter of law (statutes) or based on the juries and judges discretion (case law).
Consequently, the codification of the criminal law has been suggested by the Law Commission and various legal intellectuals; in order to curb the problem of uncertainty by simplifying the law and providing an accurate guide for the criminal justice system to follow. 1 Modern Law Review 58 (1995) 678:- Horder J, 'Intention in the criminal law'- A rejoinder. 2 Reed A and Fitzpatrick B. Criminal law 3rd edn (Sweet & Maxwell publishing 2006) pg 59. 3 Duff RA, Intention, Agency and Criminal Liability (1990) pp 56-57. 4  K. B. 997. 5 Wilson w.
Criminal law: – Doctrine and theory. 3rd edn (Longman publishing 2008) pg 125. 6 Ibid pg 120. 7  AC 290 (HL). 8  UKHL 28. 9 Smith (n. 6) 10 A court or jury, in determining whether a person has committed an offence, – (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.