Elements of Mens Rea – Part 2

- Recklessness – the concept of risk-taking – similar to OI in the sense that was the
consequence foreseeable but std of recklessness is lower than VCQ.
o R v Reid (HL)
 HL: If a driver takes evasive actions in an emergency, his action may involce
the taking of a risk which is regarded as justified in special circumstances so
he cannot be described as driving recklessly.
 D despite being aware of risk but still take it, does not mean that person is
acting recklessly. – Distinction depends on CIRCUMSTANCES.
o Cunningham (CA) – WAS the authority on recklessness. (Have to discuss in essay)
 Case involves gas meter. Accused broke gas meter to steal money inside it
but the gas leaked into a neighboring house and an old lady was killed.
 Def of recklessness - A person is reckless when
 There is a risk of a harmful consequences which is not negligible
 HE recognized that there was such a risk but nevertheless he goes on
to do it. – This is subjective bcs the accused is the one who has to
recognize that there is a risk
 Unreasonable for him to take the risk. *** - Objective test.
o Caldwell (HL)
 Accused set fire to hotel out of grudge.
 NEW definition – A person is reckless when
 There’s a risk of a harmful consequence which is not negligible
 Having recognized that there was such risk, he nevertheless goes on
to do it
 It was unreasonable for him to take the risk*** (Recognised
Cunningham def)
 OR he fails to give any thought to the possibility of there being any
such risk (when a reasonable person would have) and goes on to do
it. – Even if accused x recognized the risk, he would still be
responsible if a responsible person would have recognize the risk. –
Objective test. (ADDITION)
o R v G & R – 2003 – reversed Caldwell decision
 Boys (11 and 12) were camping/hanging out at little supermarkets, they set
some papers on fire inside a bin. Causes fire and burn down building as it
spread.
 Held boys did not intend to burn down building and they did not subjectively
recognize there was a risk BUT bound by Caldwell (HL) so judge’s direction
to jury.
 Find that they must be aware of the risk and even if did not, must still
be guilty if it was obvious to a reasonable bystander (AN ADULT)
that there was a risk.
 Went to appeal until HL where the HL finally acquitted them and changed the
definition.
 Adopted Criminal Code Bill clause 18(c) – CURRENT DEFINITION OF
RECKLESSNESS
 A person acts ‘recklessly’ with respect to a result when he is aware of
the risk that it will occur – There must have been a risk that was not
negligible and accused MUST have been aware of the risk and based
 on circumstances known to him, it was unreasonable for him to take
the risk.
o Why did HL change the meaning of the word ‘recklessly’?
 Recognize the D having a culpable state of mind. (Goes back to the purpose
of criminal law where a guilty act alone cannot amount to a crime, needs to
be accompanied w guilty mind HENCE the Df HAS to recognize the risk
themselves).
 Unfairness in Caldwell especially when applied to young people and the
mentally disabled.
 Contrary to the Law Comission’s recc on reform of criminal damage which
formed basis for Parliament enacting Criminal Damage Act 1971; the
interpretations in Caldwell was therefore a misinterpretation and contrary to
Parliament’s intentions.
 “Maliciously” – LC recognized that ‘maliciously’ to have a
subjective element, the LC recc P to apply this to the statute, there
was never intention for ‘maliciously’ to be interpreted objectively.
(Recc was merely to make the definition of ‘maliciously’ clear and
subjective element was supposed to be included).
o Problems
 Accused is angry, arrogant or inconsiderate person?
 Accused deliberately close mind to the risk? – The very fact that you close
the mind to the risk establish that you recognize there is a risk in the first
place.
 Bare assertion that “I did not see the risk?” – The jury would not blindly
believe the bare assertion though, would still have to judge based on facts.
o Amount of risk present for a person to be considered reckless – Risk must not be
negligible.
- Negligence – an act which falls below the standard expected of a reasonable ordinary prudent
person.
Malaysian Law
- Rash (Not the same as negligence but appears together) – No recklessness
o Not defined in PC.
o Tara Singh v PP
 S.338 - Causing grievous hurt to any person by doing act so rashly and
negligently…
 Held – Rashly and negligently are distinguishable and one is exclusive of the
other, act cannot be rash as well as negligent.
o Nidamarti’ Case
 Culpable acting is acting with the consciousness that the mischievous and
illegal consequences may follow but with the hope that they will not..
o Idu Beg
 Criminal rashness is hazarding a dangerous or wanton act with the knowledge
that it is so, and it may cause injury but w/o intention to cause injury…
o Rash similar to recklessness, only difference is the unreasonableness element BUT
that should have been implied in rashness already.
- Reform – Rash
o YMC – Basically suggests that the definition of rash be the same as the definition of
recklessness in UK.
 A person behaves rashly if
  He is aware that the prohibited harm may result for his or her acts or
omissions.
 Having regard to the circ known to him or her it is unjustifiable to
take the risk.
- Negligence
o Tara Singh v PP
 Differentiate criminal and civil negligence.
 Criminal negligence has a higher standard – must be negligence where
compensation alone is not enough and the accused must be punished.
 In UK has ‘Gross negligence’ – The person’s negligence is so bad that he
needs to be punished for it.
o YMC
 A person is negligent in his conduct if
 Falls ell short of the standard of care of a reasonable person…
 Is so far below such standards that it merits punishment.
 Basically follows Tara Singh.