Subjective vs Objective MR/ how should the law define recklessness:

 Subjective approach to mens rea; the term subjective is used to indicate a mens rea
requirement that is looking internally to the mind of D, to satisfy this mens rea the
prosecution must prove that D PERSONALLY foresaw a risk of causing damage (what
did the individual see, what were they aware of, and what were the defendant
themselves concerned with), this mens rea if drawn from the idea of individual
autonomy. It is not enough to show the she would have done, or what a reasonable
person would have done.
 Objective approach they ask what would a reasonable person perceive, choose, see
or wanted in these particular circumstances, they don't look at individual autonomy.
This mens rea judges D by an external standard of reasonableness.
 Conflict between the two/ both have own advantages and disadvantages
 To compare merits look at subjective and objective test of recklessness;
 Caldwell objective test criticism:
o Textbook: under Caldwell recklessness D would be reckless even where she
has not made the choice - on the basis that she would have foreseen,
however concern was that before we are ready to convict D of a serious
offence, we should be sure she has chosen to commit, or at least chosen to
risk something.
o Under this D would be reckless under this definition even in cases where it is
impossible to live up to reasonable standard e.g blind
o This was overruled in R v G
o But also crit for a totally subjective test

Jonathan Herring; great debates in criminal law

 The law on recklessness now clear after R v G; D is reckless if:
1. He or she was aware that there was a risk that his or her actions could cause
a particular result; and
2. The risk was an unreasonable one for D to take
o Test essentially subjective
o Courts look at what D foresaw not reasonable person
o Issue is that if jury convinced D did not see risk = not reckless even if it was
foolish.
 Issue: is it right that D who does not foresee risk is necessarily deemed not to be
reckless?
o R v Parker; shows difficulties w/subjective approach to definition of
recklessness
-COA upheld conviction; they held D aware of fragile nature of telephone
receivers, and was aware he was slamming receiver down; court held D should
not be able to escape liability for a risk he would have known if he stopped to
think.
-This argument comes close to objective assessment; D reckless b/c ought to
have known risk.
-stretch of meaning of recklessness also shown in cases of voluntary intoxication
-will also be reckless; treated as having foreseen risk if they were sober.
 Issue: When should a D who has not seen a risk, nevertheless be found reckless?
 History of Caldwell:
 o Objective concept
o D liable if risk was an obvious one, and he failed to consider whether or not
there was a risk.
o Proved problematic in case of Elliot v C
-does not allow D to decide to take that risk; by taking objective test = too broad,
doesn't take into account of D who has disability
 Most theorist; want middle ground; allows to find recklessness some D's who fail to
see obvious risk, but not all of them.
 Victor Tadros; suggest the following conditions for recklessness:
A. The action was of a kind that might carry risks with it according to the beliefs
of the individual and either
B. Given those beliefs the agent failed to fulfil his duty of investigating the risks
or
C. The agent wilfully blinded himself to the existence of the risks.
-argues that recklessness should be defined as a failure to attach insufficient
regard to the interests of others
-major difficulty with this view; hard for jury to use in practice; as would be hard
to assess manner in which D reached the decision that there was no risk.
 Anthony Duff agues that subjectivist who insist on Cunningham recklessness
overlook the fact that an indifference to the interests of others can itself be a state
of mind
-However, Duff argues that how we acts reflects what we care about; but what if
someone was suffering an emotional crisis; but Duff days we cannot divorce a state of
mind from an action.
-Prof Duff notion of culpable indifference captures those who deserve conviction,
while ensuring those who do not are convicted. BUT THIS IS A TEST EASIER SAID THAN
DONE
-Another point is that an indifferent defendant, even if blameworthy, is not necessarily
as blameworthy as a defendant who deliberately takes risk.

 Conclusion: neither a purely subjective or purely objective test is adequate.

-Purely subjective = those who fail to see an obvious risk due to their arrogance,
drunkenness or indifference to others can escape liability.
-Purley objective = those who fail to see obvious risk through no fault of their own e.g
age or mental health can face conviction.

Recklessness: We are still some way from reaching a fair and coherent doctrine of
recklessness in English criminal law; to what extend dyu agree with statement?
 Intro: law on recklessness subject to academic scrutiny for years, used to be 2 legal
tests of recklessness, subjective (Cunningham) and objective (Caldwell). In R v G HOL
overruled caldwell, confirming subjective test should apply in respect to crim
damage
-law has setteled, but some academic content is isn't
 Subjective test cunningham: 2 elements; (1) D was ware that there was a risk that
their conduct would have caused a particular result (2) the risk was an unreasonable
one for the D to take. First element only requires D to foresee that there was a risk,
 not what a reasonable person would foresee. The second element; objective part of
test, a D will only be reckless where the risk is objectively unjustifiable.
-Test used until Caldwell recklessness; objective test; a D who inadvertently took a risk
which was obvious to the reasonable person would be deemed as reckless
 Problems of Caldwell recklessness; harsh results e.g Elliot, the fact child was of low
intelligence who did not appreciate the risk of criminal damage involved in her act
due to her age and lack of understanding; such considerations were irrelevant.
Unfair
-Blurred distinction between concept of recklessness and negligence.
 Caldwell overruled in R v G, restoring subjective test, restoring subjective test for
recklessness in relation to crim damage
 Academics argue law on recklessness still not clear, as R v G applied to criminal
damage, what about the other offences that used caldwell.

To what extent does the imposition of criminal liability without proof of fault offend
traditional notions of criminal responsibility?
 Intro: evaluation of strict liability; an offences which do not require proof of MR in
respect to at least one of the AR elements. E.g statutory offences. Fundamental
principle of crim law that liability requires both AR AND MR. Arguments of strict
liability will be explored
 Provides a degree of protection the public through promotion of care
 Ease of proof, much easier for prosecution to prove criminal liability where a state of
mind does not have to be proved.
 Arguments against; violates principle of coincidence of AR and MR,