Smith and Hogan’s Criminal Law

"The Cunningham, subjective approach to recklessness … was the accepted definition until a controversial, and, it is now accepted, erroneous turn by the House of Lords in the 1980s … [T]he House of Lords has recently restored orthodoxy by affirming that the definition of recklessness is as stated in Cunningham … ." (Ormerod, D Smith and Hogan's Criminal Law, 2005, p104) Explain and evaluate developments in the concept of recklessness in English criminal law in the light of this statement.

This essay will deal with how the complicated subject of recklessness has developed throughout the past century. It will consider how and why recklessness was first used, and will then go on to discuss how it went through different eras of subjective and objective recklessness, and will then conclude with the current law, and some of the difficulties that it still faces. The term reckless was first created to deal with the term malicious.

One of the first cases to use the term reckless was R v Pembliton,1 in which the defendant was charged with unlawfully and maliciously committing damage to personal property. On appeal, the defendant's conviction was quashed, with Lord Coleridge finding that if the jury had come to a conclusion that the defendant was reckless of the consequences of his actions then they could have found the defendant guilty.

As a result the court in Pembliton interpreted maliciously as requiring proof of intention. In the case of R v Cunningham2, the defendant was convicted of unlawfully and maliciously administering a noxious thing so as to endanger life, under s23 Offences against the Person Act [1861]. However, his conviction on appeal was quashed, as the judge had misdirected the jury by telling them that the word malicious simply meant wicked, instead of giving it its legal meaning.

It was decided that in any statutory definition of a crime, malice must be taken not in its old sense of wickedness3, but should be that it requires an actual intention to do the particular kind of harm, or recklessness as to whether such harm should occur or not. In Cunningham, the court made a subjective test to decide whether the defendant had been reckless or not. This led to the defendant only being able to be convicted if he knew of the risk, but he went on to take it.

'In cases requiring malice, it is not sufficient that if the defendant had stopped to think, it would have been obvious to him that there was a risk. He must actually know of the existence of the risk, and deliberately take it. '4 In the case of R v Stephenson5 the defendant was convicted under section 1 and 3 Criminal Damage act 1971. However his conviction was quashed on appeal because the judge had stated that the defendant could be found guilty if he closed his mind to the obvious fact of risk from his act, a test which the court felt was more objective as it was looking through the eyes of a reasonable man.

Cunningham recklessness was accepted as being applied in offences of Damaging Property under the Malicious Damage Act 1861. The Law Commission in their report on Criminal Damage6 made proposals for the reform of law, but they considered in Cunningham that the mental element was suitable. There were only proposing for it to be made simpler, and with more clarity, and that this could be done by using intentionally or recklessly, instead of maliciously.

However, the commission failed to propose any definition on recklessness. 'The Court of Appeal, prior to 1981, held that 'reckless' in the 1971 act bore the Cunningham meaning, but in that year the House of Lords decided in Caldwell and Lawrence7, that where the statute uses reckless, a different test should apply. '8 Cunningham recklessness was the accepted definition of recklessness, until a decision by the House of Lords in the 1980's to move in the direction of objective recklessness is some offences.

After the decision in Cunningham, came the case of Caldwell. The defendant was found guilty of causing criminal damage with intent to endanger life or being reckless as to whether life would be endangered under s1 (2) Criminal Damage Act [1971]. When the case reached the House of Lords, Lord Diplock changed the law on recklessness by stating that the form of recklessness used in the case of R v Cunningham was only intended to help understand the meaning of the word maliciously which was used in the old statutes9.

He argued that the old meaning in Cunningham was not relevant to the 1971 act. Lord Diplock believed that there should be a wider test for recklessness and decided that a person would be reckless under the Criminal Damage Act [1971], if he does an act which creates an obvious risk that property will be destroyed or damaged, and when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless went on to take it.

This new test that was proposed by Lord Diplock established a new type of recklessness which is called objective recklessness. Under objective recklessness, the risk of the defendant's actions are seen through the eyes of a reasonable man', rather than through the eyes of the defendant, as is the case with subjective recklessness. Caldwell only established an objective test for recklessness for Criminal Damage cases, but Lord Diplock intended to judge all recklessness according to this test.

He said that subjective recklessness had served the purpose for which it was intended and that it was not helpful to sort recklessness into subjective and objective, it should be completely replaced with objective recklessness. However, this received a wide number of criticisms from Professors John Smith and Glanville Williams, as well as a number of judges.