Recklessness

Recklessness

In terms of criminal responsibility recklessness is subordinate only to intention. There are two types of recklessness: subjective and objective. Walsh J in DPP v Murray explained the two. He stated that subjective recklessness is where the accused consciously took an unjustified risk which the accused knew existed. Objective recklessness is where the accused again took an unjustified risk however he didn’t actually know that it was an unjustified risk but he should have been aware of it.

An unjustified risk involves the weighing of factors justifying the risk against those indications of the absence of justification. A justified risk is one that can be vindicated. If the risk is justified then there is no recklessness. Sometimes a justified risk might be fraught with risk.

Whether a person is aware of a risk will determine whether he acted subjectively reckless or objectively reckless. There is some authority to suggest that only subjective recklessness is applicable in Irish criminal law.

DPP v Murray in this case a husband and wife committed an armed robbery. They were pursued by an off-duty Garda who was subsequently shot and killed by the wife. Both were convicted of capital murder. They appealed to the Supreme Court where each of the judges considered if appellants knew whether or not the victim was a Garda acting in the course of his duty or whether the appellants were reckless as to whether or not he was a Garda acting in the course of his duty. Walsh J didn’t indicate which form of recklessness should prevail. Henchy J quoted the definition given by the American Law Institutes Model Penal Code; “a person acts recklessly with regard to the material element of the crime when he consciously disregards a substantial unjustifiable risk that the material element exists or will result from his conduct.” This statement concerns subjective recklessness. However Henchy J stated that this definition was the test of recklessness for this specific offence. So could objective recklessness secure a conviction for other less serious offences? Charleton points out that the above definition has been used where recklessness is a live issue in rape proceedings. Henchy J stated that objective recklessness wouldn’t suffice in this instance. Griffin J quoted long passages from Professor Glanville Williams and favoured a subjective approach to recklessness simplicter; “conscious taking of a risk.” Kenny J endorsed the subjective approach to recklessness in the context of capital murder but he didn’t deny the existence of objective recklessness. Mary McAleese forwarded the opinion that Walsh, Henchy JJ favoured a notion of recklessness encompassing both objective and subjective. She also criticised the court for an over reliance on Professor Glanville Williams’ opinion.

In England recklessness encompasses both objective and subjective. In R v Caldwell, Lord Diplock defined subjective recklessness as where one had recognised a risk of harmful consequences resulting from his actions but took it anyway. He also defined objective recklessness as failing to give any thought as to whether there was such a risk where if any thought were given to the matter it would be obvious that there was.

This case also brought up another question; What if the defendant had stopped and considered whether there was a risk but mistakenly concludes that there isn’t one, he does not fit either definition of recklessness. This is known as the Caldwell lacuna or gap in the law of recklessness.

In Chief Constable of Avon v Shimmen the defendant was trained in martial arts and he bragged to his friends that he could launch a kick at a plate glass window and stop just short of it. He in fact broke the window and was charged with causing criminal damage. He was acquitted on the grounds that he had not acted recklessly because he considered his actions and concluded there was no risk trusting his ability. The prosecution appealed by way of case stated. The court noted the possibility of a lacuna and accepted that it could exist, but drew a distinction between a defendant who concluded that there was no risk and a defendant who concluded that there was a risk but then took all the steps he thought necessary to eliminate the risk. The first defendant would be entitled to an acquittal as he is outside the definition of recklessness whereas the second defendant would be convicted as he is within the Caldwell definition of recklessness. In this case the defendant had appreciated the risk but concluded that it would not happen because of his skill. he was therefore reckless and the court gave direction to convict.

In Elliot v C (a minor) a 14 year old with a slight mental deficiency burned down a shed by igniting white spirits that she had poured on the floor, intending to keep warm. It was held that the accused had not given any thought to the possibility of a risk and such a risk was obvious to the ordinary prudent person.

Subjective recklessness has essentially the same meaning in Ireland as it does in England. However in Ireland objective recklessness has a broader scope. In England the test is based on whether or not the accused considered the possibility of a risk existing. If a person considers whether or not there was a risk and concludes that there was not one then he is not objectively reckless. In Ireland however if a person considers whether or not there was a risk and concludes that there was not one then he is still objectively reckless if he ought to have concluded otherwise.