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Should the subjective definition of recklessness in criminal law be maintained?
The subjective definition of recklessness is where the defendant takes an unjustified risk and was actually aware of the consequence, has been seen here to be the best approach when understanding reckless behavior. Although within criminal law, the term recklessness has a second definition which is known to be objective recklessness. The objective definition argues that a person is reckless when the defendants take an unjustified risk and was actually aware or should have been aware. This essay establishes that the subjective definition of recklessness takes into account the individuals characteristics, the mental state of a defendant but also help to understand certain cases like rape. It has also been established here that elements of the objective definition is an extension from the subjective definition of recklessness, which therefore allows the subjective side holds greater weight and in terms of looking at if the reasonable man may have be incapable of foreseeing a consequence. Thus, it has been argued here that the subjective definition of recklessness in criminal law must be maintained.
The establishment of the Subjective definition of recklessness was through the case of Cunningham. In R v Cunningham D broke a gas meter to steal money contained within the metre, leading to a gas leak which caused D’s mother in law to become seriously ill. The subjective definition was developed here as D had been reckless as he had realized there was a risk of gas escaping and endangering someone, and went ahead with his action anyway. Therefore, demonstrating the subjective definition that a defendant to be guilty under Cunningham recklessness they must have consciously undertaken an unjust risk and must realize that there is a risk involved. The objective definition developed through R v Caldwell, argued that the defendant is still reckless even is the risk had not been realized. Lord Diplock stated in Caldwell, that “When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which Q he would have been aware had he been sober, such unawareness is immaterial.”2 Therefore unlike the Cunningham “Caldwell criminalizes people unjustly, and offends against the principle of individual justice”. The above also displays that the definition of objective recklessness is an extension from the subjective approach of recklessness as the term ought to be aware has been added on. Thus the addition of the reasonable man test causes injustice as it criminalises those who genuinely did not foresee a risk or consequence of an act. This shows that the subjective definition of recklessness needs to be maintained in law.
Moreover, the subjective definition of recklessness allows the defendants individual characteristics to be taken in to account of an act. Thus, if the defendant’s capacity to foresee a risk is less than of a reasonable man, a subjective approach would be considered to be appropriate. As demonstrated in the case of R v Stephenson. Where D had caused criminal damage but had suffered from schizophrenia, which might have prevented the idea of danger entering D’s mind. However, if the under the objective definition D had not given any thought to the risk of his act, which would make him liable. This was also held in Elliot v C under the objective definition due to the court having to follow the ratio decidendi from the Caldwell case. This is significant due to the decision was endorsed to be unfair as the defendant was liable for having a mental condition that failed to give her the capacity to foresee the risk. This shows that the objective definition of recklessness excludes itself from men’s rea, as the approach does not take into account the defendant’s state of mind. Also the fact that one can be liable even if they were incapable of realizing the risk. Hence, demonstrating that the subjective definition is beneficial in terms of defendants having psychological defect or incapable of fore sighting a risk. Presenting that the subjective definition of Recklessness should be maintained in criminal law as the objective definition excludes “age, lack of maturity or limited intellect” of a defendant.
Likewise, the case R v G demonstrates the argument above of the subjective definition takes into account the defendants age, maturity and psychological defects. R v G rejected the objective definition of recklessness and reinforced the subjective definition due to the Caldwell test being a model that lacked consistency and accuracy in terms of looking at the mens rea of defendants. R v G delivered an accurate definition for the subjective views of Recklessness. Additionally, under the draft criminal code, a requirement of awareness of the risk and the actual damage cause was needed. Therefore, the reformed definition under R v G of subjective recklessness created a more accurate and broad scope of the meaning of recklessness. Thus, the subjective definition of recklessness may be incorporated when looking at recklessness, showing that the subjective definition of recklessness should be maintained in the law.
Subsequently, cases like R V Khan shows that the objective definition of Recklessness cannot apply directly due to the fact that the test looks at criminal damage caused by a reckless act. It has been seen that the “Cunningham standard applied to rape”. In this case the defendant had been accused of rape, as Khan had recklessly thought that the women had given consent to sexual intercourse. Here the subjective test has to apply as under Cunningham Khan’s knowledge of the risk of sexual activity but the fact that no direct consent of sexual activity can lead to a consequence of rape. Furthermore, this has also been highlighted in R v Satnam and Kewal, where the subjective definition was best suited “if the accuse could not care less whether his victim wanted to have sex or not but pressed on regardless”. This therefore shows that under certain cases the subjective definition of recklessness allows the scope of the law to be understood and adapted to help to define the guilty mind of the defendant.
In addition, the subjective definition allows the distinction between the person who had foreseen the risk but still caused the act and a person who recognizes the risk but believes that it can be eliminated. Although, the objective definition causes a loophole in the law as it does not recognise a person who believes that a risk can be eliminated, which may cause acquittal in cases. Chief Constable of Avon and Somerset v Shimmen (1987) demonstrates the loophole, as D believed he had eliminated the risk but was found to be reckless, as the elimination of the risk was mistaken. “A defendant who recognizes a risk but thinks that it no longer exists because he has taken steps to eliminate it. The Court took the view that the former would not be reckless” Displaying, that the Subjective definition may be narrow, although the definition has a simple and explicit application in terms of providing the meaning of recklessness. This validates the argument that the subjective definition of recklessness should be maintained in criminal law.
However, the subjective definition of recklessness has limitations on the fact that the failure to consider the welfare of the state on the premises that an act without consideration would weaken the possibility of criminal liability. Therefore, a defendant may still be liable for his actions as for example by committing acts without regard for others, but by not considering about the effect of the act can lead to the defendant not be found criminally recklessness. Consequently, the subjective definition affects the confidence in the criminal justice system due to the fact that if the jury recognize that the defendant did not foresee the risk then they are allowed to acquit the defendant, even where the defendant should have foreseen it and had the ability of reasonable man of that foresight.
In conclusion, the subjective definition of recklessness should be maintained in law. This is due to the fact that the objective definition of recklessness is an extension to the subjective definition as the requirement under Cunningham is the one must have consciously undertaken an unjust risk and must realize that there is a risk involved, which is also developed under the Caldwell test for the objective definition. Additionally, R v Stephenson outlined that the objective definition of recklessness excludes itself from men’s rea, as the approach does not take into account the defendant’s state of mind. Furthermore, the objective definition does not take into account of the defendant may not be culpable of an act due to one’s age, maturity and psychological defects, whereas the subjective definition does take the above argument into account. This was presented in R v G, showing the benefits of subjective recklessness, taking into consideration the age of the defendants and their incapability to foresee a risk. As well as, cases in terms of rape carry forward a difficulty in apply the objective definition of Recklessness due to the confusion within consenting to sexual activity. Correspondingly, the objective definition causes a loophole in the law unlike the subjective definition as it does not recognize a person who believes that a risk can be eliminated, which may cause acquittal in cases. Therefore, it has been argued here that the scope of the subjective definition of recklessness is sufficient to be maintaining in law.

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