In general terms, being reckless refers to the taking of an unjustified risk. Recklessness in criminal law has given rise to more difficulty. In particular the question as to whether a subjective test should apply to recklessness or whether an objective test should apply.
In the context of criminal damage, originally the leading case in this area of R v Cunningham held that a subjective test applied to determine recklessness:
This gave rise to Cunningham recklessness which asks: did the defendant foresee the harm that in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk.
Cunningham recklessness was followed in R vBriggs [1976] 63 CAE 215. However, the subsequent case of R vParker (1976) 63 CAS 211 modified the test to include closing one's eyes to an obvious risk. These cases were reviewed by the Court of Appeal in R vStephenson where it was held a subjective test applied:
A person is reckless as to whether property is destroyed or damaged where:
(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and
(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.
Caldwell recklessness radically altered the law and received widespread criticism. The tension between subjective and objective tests of recklessness continued with each test being problematic. The difficulty with a subjective test is that it is based entirely on the defendant's state of mind and it is for the prosecution to prove that the defendant did foresee a risk of harm. It is difficult to prove a state of mind. It allows too many defendants to escape liability by simply claiming they did not foresee a risk. However, Caldwell recklessness is capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk as the following case illustrates:
In addition to causing injustice other criticisms of Caldwell reckless:
Whilst criminal damage was subject to Caldwell recklessness, Cunningham recklessness applied to offences against the person and thus property was given a greater level of protection.
The precise limits as to which offences required which type of recklessness were not fully understood or defined
Having two definitions for the same word was confusing
The test was difficult for juries to understand
Having an objective test blurs the distinction between negligence and recklessness
There was uncertainty as to whether the Caldwell lacuna existed.
Caldwell recklessness was eventually overruled by the House of Lords:
