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Since the House of lords' decision in R v G (2003), the 'Caldwell' definition of recklessness can no longer be regarded as good law. Much of the following article is therefore now wrong. Anyone who is studying 'recklessness' in English criminal law should read the text of R v G
The word 'reckless' appears in the definitions of many criminal offences; there is some overlap with the term Gross negligence in civil law. Although the word is used, it is seldom defined; courts have relied on explanations in important case reports. The most important of these are the cases of R v Cunningham (1957), R v Caldwell (1982), and R v Reid (1992).
The position at the moment seems to be as follows. An act is reckless if:
- the act is 'unreasonable' and carries a 'serious risk' of harm and, either
- the accused forsees that the act may lead to harm, but does it anyway (the 'Cunningham' criterion), or
- the accused fails even to consider the likelihood of harm, where the risk was 'obvious' (the 'Caldwell' criterion), and has no 'good reason' for this oversight (the 'Reid' ammendment). At present this test applies only to arson and criminal damage offences.
An act will not be 'unreasonable' if, for example, it were carried out to avoid some other harm. For example, it is not unreasonable for a car driver to swerve to avoid a pedestrian stepping into the road, even if this causes damage to a parked car.
A 'serious risk' is one that is not negligible, and whose commission would amount to the Actus Reus of an offense.
In the Caldwell test, a risk is 'obvious' if it would be obvious to a 'reasonable' person. On the whole the test for obviousness is not adjusted to account for the age or intellectual capacity of the defendant (see: Elliot v c (1983)). This may seem harsh, but appears to remain law at present; in R v coles (1995) the House of lords had the opportunity to overrule Elliot v C but decided not to.
'Good reasons' for failing to spot an obvious risk might include a sudden distraction at the crucial moment, or a bout of acute illness.
On the grounds above, if the risk is an obvious one, then the only defence to a charge of reckless Mens Rea is that the accused considered the possibility and decided in good faith that there was no risk. This is sometimes called the Caldwell lacuna. If the accused were 'in the Caldwell lacuna' then in all likelihood he would be guilty of Negligence, but not of recklessness. In any event, it is doubtful whether any successful defence has been made on the grounds of the Caldwell lacuna. It would have to be shown that the accused decided there was zero risk, not merely a negligible risk.
Voluntary intoxication is, in general, no defence to a charge of recklessness. It can be argued that although the act itself was not reckless, the perpetrator was reckless in becoming intoxicated to a criminal level.
While the 'Caldwell' interpretation of recklessness is sufficient for some criminal offences that accept recklessness in the Mens Rea, some offences require 'advertant' recklessness of the 'Cunningham' meta. These include Offences against the person and rape, and others where the perperator must act 'maliciously'.