In order to answer this question all the different types of mens rea must be considered. Negligence will be discussed and also the law on intention, which has changed many times over the last century, interchanging between objective and subjective assessments of the intention of the defendant. There are two legal definitions of recklessness that in Cunningham1 and that in Caldwell2. Also to consider is, dishonesty which represents a different form of mens rea and consider that particular problems arise when looking at strict liability because no mens rea needs to be established to secure a prosecution.
Mens rea can be literally translated to mean 'guilty mind,' and it, "Refers to the mental element necessary for the particular mind… 3" There are two opposing views on the way in which mens rea of the accused has been established: the subjective approach and the objective approach. The two often come into conflict in court when deciding the accused mental state and there has been much criticism surrounding the way the courts have dealt with this problem. One commentator said that:
"Subjectivism became the orthodox academic theory of mens rea earlier this century4. " It has also been said that: 315 "Subjective tests heighten the protection of individual autonomy, but they typically make no concession to the principle of welfare… of fellow citizens5. " Thus commentators are undecided about the proposal stated in the above question. The original description of negligence (given in a civil court) was in the case of Blyth v Birmingham Waterworks Ltd. 6 where Alderson B.
said: "Negligence is the omission to do something which a reasonable man… would do, or doing something which a prudent and reasonable person would not do. 7" The test in this case refers to what the "prudent and reasonable man would not do," showing that originally the courts favoured an objective approach when considering mens rea. In criminal law the test isn't much different to that applied in this case, "though in a criminal case the standard of proof is higher. 8"
The courts followed this in the case of McCrone v Riding9; in this case the courts decided that the standard of driving should be an objective one, not one based on the experience of the driver10. In his judgement Lord Hewart C. J said: "That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway11. " This disrupts the proposal given in the question that the courts are favouring the subjective approach to mens rea. Commentators agree with the overall position stated above,
313 "There is no need to prove that D adverted to the consequences at all, so long as the court is satisfied that a reasonable person would have done so12. " However in the case of Hudson13, "The Court of Appeal held that the trial judge was wrong to direct the jury that the test was wholly objective and that the accused must prove that a reasonable man would not have believed that she was a defective. The jury should have been asked to consider whether it was reasonable for Hudson not to have realised that she was a defective. 14"
This is a slightly different test to the one used in McCrone v Riding because it considers Hudson as a "reasonable man," and not just the "reasonable man test. " Although the courts may have discovered a half-way ground between objective and subjective recklessness in the case of Hudson it seems that the courts are not shunning objective assessments of mens rea in negligence cases. Moving on to recklessness as a form of mens rea, the original definition for recklessness was that in R v Cunningham, which concerns section 23 of the Offences against the Person Act (1861).
In this case recklessness is purely subjective regarding the person's state of mind, Byrne J. in his judgement directed the jury to this definition of recklessness: "(1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not15. " This would mean that the accused must have realised that he was going to cause harm and not just that the risk would have been obvious to anybody else in that situation.