Definition of criminal recklessness
In the criminal law, recklessness (also called unchariness) is one of the four possible classes of mental state constituting mens rea (the Latin for "guilty mind"). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus, i.e., a person cannot be guilty of the offence for their actions alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time. Recklessness may constitute an offense against property or involve significant danger to another person.
Definition of terms
Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
- subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
- objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements, although R v Gemmell and Richards deprecated this in the UK; or
- hybrid, i.e. the test is both subjective and objective.
The most culpable mens rea elements will have both foresight and desire on a subjective basis. Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because they gamble with the safety of others, and the fact they might acted to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness. Hence, the alternative phrase "willful blindness" acknowledges the link representing either that the accused deliberately engineered a situation in which they were ignorant of material facts, or that the failure to foresee represented such a danger to others that it must be treated as though it was reckless.
Black's Law Dictionary defines recklessness in American law as "Conduct whereby the actor does not desire harmful consequence but...foresees the possibility and consciously takes the risk," or alternatively as "a state of mind in which a person does not care about the consequences of his or her actions." Black's Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American courts, a wrongdoer who recklessly causes harm can be held to the same liability as a person who intentionally does so.
The modern definition of recklessness has developed from R v. Cunningham  2 QB 396 in which the definition of 'maliciously' for the purposes of the Offences against the Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law:
In any statutory definition of a crime, malice must be taken ... as requiring either:
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
The current test in England and Wales is therefore one of subjective recklessness.
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