Do Risk takers present problems for the courts?

Clara D.

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Do "Risk takers" present problems for the courts?

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The Latin phrase Mens rea 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 proportion of mens rea required varies from one crime to another 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 went ahead with his actions? The answers to this question in theory define which type of mens rea is required in a particular crime. However, it is not always easy to determine which mens rea fits the crime. Therefore, it appears that "risk takers" present problems to the courts, in the way that they raise controversial debates about the precise definition of their mens rea

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Definition of mens rea
Two types of recklessness used by the courts
The case R. v. Cunningham
The case R v. Caldwell

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[...] He was charged with intentionally or recklessly damaging property belonging to another, being reckless as to whether the life of another would be endangered thereby. Caldwell recklessness is different from Cunningham recklessness because it includes defendants who were not aware of an obvious risk. Caldwell recklessness punishes defendants for failing to notice a risk which would have been obvious to a reasonable person. “Risk takers” who claim to the Courts did not think” or did foresee a risk and take it but I intended no harm” can therefore be classified as reckless and their mens rea can in theory be qualified as Cunningham recklessness or Caldwell recklessness. [...]

[...] According to Jonathan Herring[14], Court stated that Lord Diplock in Caldwell had made clear that the test was whether the risk would have been obvious to a reasonable person in the same circumstances, not whether the risk would have been obvious to a reasonable person of the defendant's age or mental abilities”. By convicting these defendants on the basis on failing to see a risk they were not able to appreciate, judges are said to against fundamentals principles of justice”. Therefore, the case R. v. G and another overruled Caldwell recklessness and highlighted the fact that it was no longer relevant not only in criminal damages, but also for all crimes which had used Caldwell recklessness. [...]

[...] In The case R. v. Woollin[10], the appellant killed his three-month-old son after throwing him on a hard surface in a fit of temper. The judge directed the jury that if they were satisfied that the appellant had realized that there was a “substantial risk” that the child would suffer from serious harm, they could convict him of murder. However, the House of Lords held that the expression “substantial risk” was a misdirection blurring the distinction between intention and recklessness. [...]

[...] In that way, it appears that “risk takers” present problems to the Courts. Moreover, there have been criticisms based on the case R. v. G and another ([2003] UKHL 50) addressed to the objective test in Caldwell recklessness. In R. v. G and another, two boys aged 11 and 13 went camping without their parent's permission and set on fire some newspapers under a wheelie-bin. The fire spread to them and immediately burned down a nearby supermarket and adjoining buildings. [...]

[...] 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. [...]

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