Risk Takers in Criminal Law

There are several groups of risk takers and their crimes can generally be defined through recklessness, negligence and gross negligence. It may sometimes seem that the borders between these three groups are a little unclear and this is what causes problems for the courts. They have to identify the mens rea of the defendants and then categorise them accordingly; taking the extent to which the risk was foreseen, understood or dismissed into account. The question is; how do they manage to define the crimes when there are no clear and definite guidelines?

When it comes to assessing risk, there are two elements which are important to acknowledge. Intent and knowledge portray the perception of the risk – they allow for the court to assess whether or not the defendant had knowledge of a risk and what their intent was when they carried out their crime. There are three degrees of knowledge as presented by Devlin J in Roper v Taylor's Central Garage (Exeter) Ltd [1951]1. The first is actual knowledge, the second is 'wilful blindness', and the third is constructive knowledge (what the defendant ought to know).

The most prominent question is whether or not the acts of the defendant should be assessed objectively or subjectively. The cases that portray this debate are R v Cunningham [1957]2 and R v Caldwell [1982]3. In Cunningham the defendant removed a gas meter and did not realise there might be a risk of gas spreading. But as it had previously been adjoined to the neighbour's house, the spread of gas managed to endanger the neighbour's life. There was no desire to cause any harm, and although a reasonable person may have had knowledge of the risk, the lack of intent was an element to be considered.

By creating Cunningham recklessness, the courts allowed cases to be judged by the capacity of the defendant and allowing personal characteristics to be relevant. However, in Caldwell, which was the case of a man who set a hotel on fire and claimed that his intoxication meant he did not foresee any risk, the courts decided on an objective approach where the defendant was judged against the standard of a reasonable man. This took precedence over Cunningham.

However, it was shown in subsequent cases that the courts felt that Caldwell recklessness was an unreasonable approach so they tended to lean towards Cunningham recklessness making the defendant's level of appreciation of the risk relevant. Both these cases were cases of recklessness, therefore although they affect matters of negligence and gross negligence, it must be noted that they are not dominant factors. The progression of the courts change from Caldwell back to Cunningham can be seen in numerous cases.

In a case such as Elliot v C [1983]4, intelligence and age were taken into account as the girl did not perceive any risk in setting fire to a carpet in a shed – her intent was just to keep warm. The cases R v Moloney [1985]5, R v Hancock [1986]6 and R v Nedrick [1986]7 further portray the progression the courts made, where in Moloney Lord Bridge stated that: 'the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.

' This was then further established in Nedrick, where Lord Lane CJ based his judgement on Lord Bridge's statement, and created the questions of virtual certainty: '(1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? '8 In Nedrick, the facts were rather similar to those of Caldwell as a man set fire to a woman's house and it killed her child, but he claimed he had not intended anyone to get hurt and that he did not perceive it as an obvious risk.

As there was no intent, the principle of virtual certainty could not be confirmed as he had no foresight of the consequences – therefore his lack of appreciation of the risk allowed his conviction of murder to be substituted with one of manslaughter. This portrays how the courts have used the principle of virtual certainty to help determine the extent to which foresight of risk plays a role in determining the crime. Nedrick was then confirmed in the case of R v Woollin [1998]9 where the principle of virtual certainty was used to decide whether or not intent could be inferred, and thereby prove that there was appreciation of risk.

It was decided that there was no intent to seriously harm the child even though it was thrown approximately four feet across a room. Any reasonable person would have perceived the risk, but due to the subjective approach that was taken it was shown that the father had no intent to harm the child. So although there was an obvious risk, the courts decided that the lack of intent disqualified it as virtual certainty. After Woollin, the case that really portrayed that Cunningham was to take precedence over Caldwell was that of R v G and another [2003]10.

In this case it was stated that neither boy (aged eleven and twelve) appreciated the risk, thinking the fire they had started under a wheelie bin would put itself out. It was a case that clearly portrayed the unfairness of Caldwell, as the boys did not or even could not appreciate the risk. From this point it was clear that Cunningham recklessness should be applied so that characteristics such as age could be taken into account. It made sure that a fair trial would be applied.

Thereby it is clear that in cases of recklessness, appreciation of risk is viewed subjectively along with the principle of virtual certainty. It allows the courts to lessen the sentence of those who were incapable of appreciating the risk and to judge whether or not the knowledge and intent of the crime amounted to the creation or understanding of any risk. In cases such as R v Bateman [1925]11, R v Adomako [1995]12 and R v Misra and Srivastava [2004]13, a different approach applies as they are matters of gross negligence.

In these cases there was no awareness of risk, but there should have been. They are judged objectively as the defendant has to provide a fair and reasonable standard of care and competence (determined by the given trade). This was portrayed in Bateman by Lord Hewart CJ when he stated: 'If a person holds himself out as possessing special skill and knowledge, and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment.

'14 This statement imposes a duty of care to the patient and it is this standard that gross negligence is assessed by – the fact that the defendant did not perceive any risk is irrelevant as due to their expertise they should have been aware of it. Adomako followed the rule set out by Lord Hewart CJ in Bateman, that 'in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

'15 This portrays how the perception of risk is irrelevant as the consequence has to be risk of death, if not death, due to a breach of their duty of care, for the defendant to be liable of gross negligence. The defendant will be judged against the standard of a reasonable person of their expertise.