Mens Rea – Reckless
Recklessness is the second form of mens rea that we examine, it essentially means the taking of unjustified risk, though I personally take it as the indifference of the effects of the consequences to the person making the consequence. Anyway, there are two types of recklessness, subjective (Cunningham) and objective (Caldwell).
Cunningham recklessness requires the person to actually foresee the unjustified risk and nonetheless still take it. In the case of Cunningham the tenants of a house were intoxicated by the gas that leaked from another house, the person that caused the leak did not personally realise that there was a risk to the neighbours and there for could not be held liable because he did not personally foresee the risk. The decision of Cunnigham was applied in the case of Stephenson where a schizophrenic was not in a position to realise the risk he created and there was he was not reckless in relation to the situation.
The case of Caldwell came and created a new form of liability, in the case of Caldwell, D was drunk when he put a hotel on fire. He was guilty of two offensive, one which was related to causing injury to the guests at the hotel. D claimed that he did not give any thought to the possibility of there being any such risk. Lord Diplock expanded the definition of recklessness because of this case so that a person would be held reckless when he does not give any thought to the possibility of there being any risk in addition to situations where D realised that there is risk and nonetheless goes to do it.
Under Caldwell recklessness, the person would be held liable for not giving any thoughts to an obvious risk. The obviousness is taken from the point of view of the reasonable person, which is in this case a truly objective test that does not resemble the age or characteristics of the defendant in question. An example of how unfair this could be is the case of Elliot v C where a dumb 14 years old girl caused property damage by burning something, she did not realise the risk because of her mental state, but the court held that she was reckless and convicted her.
Anyway, in reality Caldwell has a very narrow application as it only applies to criminal damage and a few statutory offences.
