Advice to Home Office Minister: The Principles Of Recklessness (Essay Sample)

Advice to Home Office Minister
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Institution of Affiliation:
Professor:
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To: THE HOME OFFICE MINISTER
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Date:
Question presented
To advise the Home Office Minister on the laws of Recklessness, elaborating its MENS REA and its development through case law.
Issues identified in question
I.What is the legal position of Recklessness?
II.How does Recklessness apply to Criminal Offences?
III.What are the current problems with the definition of recklessness?
IV.Is the current law of Recklessness satisfactory?
Introduction
Despite the fact that the principles of recklessness have been subjected to fierce discourse over the years following dissenting court rulings, common law and statutes have played a significant role in framing its principles accordingly. Following to Keating (2014), criminal liability should only be imposed on an individual once the mens rea or actus reus is well established.
This enables the prosecution to argue beyond any reasonable doubt to achieve the standard of proof to handle the burden of proof. Moreover, in so far as a straight-forward definition of recklessness has never been established, the Criminal Damage Act 1971 provided a seemingly broad overview of the concept.
Summary of the Report
This definition was widely used in many cases, and some of them are landmark common law sources in the legal sphere to date. This information report is aimed at furnishing the Home office Minister with appropriate legal knowledge regarding the conceptual basis of the principles of Recklessness. The information profoundly unveils its legal basis and evaluates the discourse revolving the principles as well as any traces of ambiguity therein.
The Development of the Principles of Recklessness
The principles of Recklessness have developed over the years through legislation and case law. The Criminal Damage Act 1971 defines that that the criminal liability of Recklessness can be imposed on an individual if he does an act that obviously creates a risk that property will be destroyed and secondly, he does the act without thinking of the possibility of a risk or is aware but goes ahead with the commission of the act anyway.
The mens rea for recklessness, therefore, encapsulates intention and subjective and objective tests. The intention is to the highest degree of culpability owing to the pre-meditated intent of crime commission. Recklessness involves an unjustifiable risk. Negligence used to encompass driving offences, anchored on an objective standard but has been largely overridden by recklessness. Crimes not requiring mens rea are strict liability offences.
Historically, the courts incorporated the subjective test in defining and recklessness in matters rulings. This underpins that the accused will have criminal liability imposed on him or her in circumstances of being aware of the prohibited consequences of the commission but still goes ahead nonetheless.
The subjective tests relied on the state of mind to prove the criminal liability of recklessness. In R v Cunningham [1957] 2 QB 396, the appellant was convicted of causing bodily harm to the mother-in-law by interfering by the gas meter, leading to escape of poisonous gas. As coined in this case, for recklessness to be justified, one has to have a clear intention of the commission or recklessness while aware of the possible consequences in the aftermath.
On the other hand, the case of Metropolitan Police Commissioner v Caldwell [1982] AC 341 introduced the objective test of recklessness. The case involved an employee who started a fire after self-induced intoxication of alcohol with the aim of killing the employer. Although the fire was detected and extinguished early enough, the House of Lords convicted the appellant thereby formulating Caldwell recklessness.
The principles state that liability can be imposed following the commission of an offence that caused obvious risk and secondly if the appellant did not give a thought to the possibility or did think but went on regardless. The objective test focused on the consequence than the state of mind.
Overtime, the Caldwell test spurred controversy and in 2003, the House of Lords overruled the subjective test of recklessness in the case of R v G. Lord Diplock argued that the objective test is vague in itself, reiterating that the subjective test was appropriate. He also added an exception of self-induced intoxication.
Problems with the Definition of Recklessness
Since the definition and concept of the principle of recklessness were settled at the subjective test over the years, many court decisions have been anchored on this very basis. In R v G [2003] UKHL 50, [2004] 1 AC 1034,underage kids lit a fire by disposing of newspapers that caused a fire leading to damages of about 1million euros.
Their convictions were quashed. Additionally, the House of Lords overruled the previous decision in Metropolitan Police Commissioner v Caldwell [1982] AC 341 with the aim of reforming the previous definition of the subjective test.
In the ruling, the House of Lords provided that the definition of recklessness as per the subjective test was two-pronged. First, the appellant must recklessly commit the act aforethought, with knowledge of the potential risk of the commission and secondly, aware that the result of the risk in the circumstances did not suffice the commission as it would be unreasonable.
However, the definition of recklessness as set out by the House of Lords is overwhelmingly problematic by its very sense. To begin with, the stipulated definition...