Subject: "Risk takers" present problems for the courts. Critically discuss this statement with reference to the courts' management of defendants who claim "I did not think", "I did foresee a risk and took it but I intended no harm", "Awareness of a risk of harm could not have crossed my mind" and "It never occurred to me".
According to Jonathan Herring , "Mens rea" is a Latin phrase which means "guilty mind" and is used to describe the element of a criminal offence that relates to the defendant's mental state". It refers to what the defendant was thinking while acting, and is essential to a criminal conviction. "Mens rea" is the culpable state of mind which needs to be with the "actus reus" in order to constitute a criminal offence. The mens rea required varies from crime to crime and there are four different types of mens rea defined: intention, recklessness, negligence and knowledge.
"Risk takers" are normally only concerned with two types of mens rea: recklessness and negligence. They both refer to the way the accused appreciated the risk he/she took in doing his actions: did he/she foresee the risk and still go ahead with his actions? Was the risk he/she took unreasonable? Did the accused fail to consider a risk which would have been obvious to a reasonable person? Did the accused behave the in same way as a reasonable person would have?
[...] The test for recklessness is subjective: the defendant must have realized the risk, it is not an objective test based on the standards of a reasonable man. In R. v. Cunningham[3], D stole a gas meter from the cellar of a house and in doing so broke a gas pipe. Gas entered a bedroom with the result that when she was asleep inhaled a considerable quantity of the gas, endangering her life. D was charged under s.23 of the Offences against the Person Act 1861 with “maliciously administrating a noxious thing so as to endanger her life”. In R. v. [...]
[...] As said above, “Risk takers” may be convicted with two different mens rea, according to the circumstances of their actions: recklessness and negligence. According to Jonathan Herring[2], “risk-taking is at the heart of recklessness”. Recklessness is the taking of an unjustified and unreasonable risk and occurs when the defendant does not desire the consequence, but foresees the possibility and consciously takes the risk. There are two types of recklessness used by the courts to define the defendant's state of mind at the time of his/her actions: Cunningham recklessness and Caldwell recklessness, both referring to eponym cases. [...]
[...] The word maliciously did not require any wickedness but did require either intention to do the particular harm that was done or recklessness as to whether such harm should occur or not. The case R. v. Cunningham defines a type of recklessness based on a subjective test. A much wider and largely objective definition of recklessness was introduced in Caldwell. According to Jonathan Herring[5] , “defendants are Caldwell recklessness if: They are aware of a risk and nevertheless went ahead with their actions OR ii) There was risk which would have been obvious to an ordinary prudent sober person and that they failed to appreciate In R v. Caldwell[6], D. [...]
[...] As a result, the patient died. The anaesthetist was convicted of gross negligence manslaughter, and appealed. But the Court of appeal, Criminal division dismissed the appellant's appeal against conviction because it was proved that the breach of duty of care of the anesthetist caused the death of the patient and that, in all circumstances, the breach was so grossly negligent as to characterized as criminal. Lord Mackay of Clashfern LC said about the case that should only convict a doctor of causing a death by negligence if you think he did something which no reasonable skilled doctor should have done”. [...]
[...] Criminal law: recklessness and negligence Subject: “Risk takers” present problems for the courts. Critically discuss this statement with reference to the courts' management of defendants who claim did not think”, did foresee a risk and take it but I intended no “Awareness of a risk of harm could not have crossed my mind” and never occurred to According to Jonathan Herring[1], “Mens rea is a Latin phrase which means guilty mind and is used to describe the element of a criminal offence that relates to the defendant's mental state”. [...]
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