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Principles - mens rea - recklessness - general points applicable to all recklessness

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General Points Applicable to All Recklessness

Defendant may not ‘intend’ the consequences, but takes an unjustified risk of causing the consequences.

Risk must be unreasonable, therefore not a

  • surgeon,

  • pilot,

  • tightrope act,

  • reasonable force to make an arrest (e.g. PC forcing suspect’s car off the road),

  • reasonable self-defence.

 

Obvious test is the social value -v- gravity of harm caused e.g. Russian Roulette -v- shooting sheep-worrying dog.

Before Caldwell/Lawrence and in R v  Cunningham [1957] cases

‘Cunningham Recklessness’ requires inadvertent risk taking, mere negligence, or unreasonable failure to consider obvious risk.

 

Therefore there is an overlap between recklessness and gross negligence.

  • Recklessness = conscious taking of an unjustifiable risk

  • Negligence = inadvertent taking of an unjustifiable risk

Now gross negligence will normally amount to Caldwell/Lawrence type recklessness.

  • Consequences desired = Intention.

  • Consequence foreseen as virtually certain = intention may be inferred - ‘Cunningham Recklessness’.

  • Consequence foreseen as probable = typically recklessness (subjective) - ‘Cunningham Recklessness’.

  • Consequence foreseen as possible = typically recklessness (subjective) - ‘Cunningham Recklessness’.

  • Consequence not foreseen but ought to have been = objective recklessness - ‘Caldwell/Lawrence Recklessness’.

  • Consequences even a reasonable man would not foresee = strict liability.

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