Recklessness is a problematic area of the law as there is no strict definition of what constitutes it. Therefore, judges have to interpret what is meant by recklessness through case law. The Criminal Damage Act 1971 had replaced the Malicious Damage Act 1861, where mens rea had been defined as ‘maliciously’.1 It replaced the term ‘maliciousness’ with ‘recklessness’ but recklessness was not defined in the new Act. Recklessness in the legal sense is concerned with conscious taking of an unjustified risk of harm.2 Between 1982 and 2003, recklessness was described both subjectively (Cunningham3 recklessness) and objectively (Caldwell4 recklessness), but each applied to different offences. However, the House of Lords in RvG5 put the subjective-objective controversy to end.
The Cunningham recklessness attempts to look into the defendant’s mind and asks whether he realised that there was a risk but carried on regardless6. Foresight is an essential element of subjective recklessness. Following Cunningham, the courts decided that a defendant who deliberately closes his mind to risk could be considered subjectively reckless.7 Caldwell created a new and wider test. It proposes that recklessness is a departure from the standard of conduct of the prudent person8. The decision was followed in subsequent case decisions.9 Caldwell posed problems for the unknowledgeable and those whose inadvertence results from incapacities, as it is harsh to punish them10. Although the defendant completely unaware any risk created, he can be objectively reckless. This caused injustice and gave rise to a great deal of criticism. Perhaps for the injustice caused by Caldwell, Caldwell only limited to offences such as criminal damage and dangerous driving. In other areas of criminal law, recklessness continued to apply pre-Caldwell meaning.11 The final blow to Caldwell recklessness was dealt in RvG. The House of Lords overturned Caldwell. The Lords relied on ‘compelling legal considerations’, namely legislative intent and fairness and did not refer to similar precedents. In RvG, a subjective test was applied. Lord Bingham gave the leading judgment and the other judges consented with Lord Bingham’s decision and reasoning for coming to that decision.
Of the four reasons provided by Lord Bingham to overrule Caldwell, actus non facit reum nisi mens sit rea, constituted the first ground.12 Lord Bingham stated that it is a salutary principle of the law that it had to be proven that the defendant had the necessary mens rea to commit the crime. No one should be convicted of a serious crime without culpability. Lord Bingham’s understanding of this principle is built upon the strict subjectivist view of mens rea in associating culpability. According to his view, mens rea is limited to a subjective condition found in a cognitive state.13 Besides, inadvertent wrongdoer has to be distinguished from the advertent wrongdoer in terms of liability.14 Professor Kenny stated that a more harsh punishment is needed to deter a person from taking a conduct that he knows carries a risk than is needed for a less threatening inadvertent wrongdoer.15 There is also a moral distinction between the individual who knowingly takes a risk and the individual who fails to consider a risk. Brady stated that it is justified to punish the former more severely.16 ‘Knowing disregard’ of a known and unacceptable risk or a deliberate closing of the mind to such risk are culpable. Lord Bingham approved that a man cannot close his mind to risk unless he first realises that there is a risk, in which case he is subjectively reckless as had already been decided in Parker17.
The second argument used by Lord Bingham was that the Caldwell test was unfair and he added that RvG was an obvious example. Lord Bingham cited that both the judge and the jury felt uneasy about convicting the boys.18 Besides, in Elliot19, it offended the jury’s sense of fairness. Besides, Caldwell had largely overlapped with