Recklessness

Recklessness is wanton disregard for the dangers of a situation.

It can in certain cases be seen as heroic - for example, the soldier fearlessly charging into battle, with no care for his own safety, has a revered status amongst some. However, recklessness is more commonly regarded as a vice - this same soldier may be a liability to his own side, or get himself killed for no benefit. Furthermore, recklessness can also be a disregard for the safety of others, such as "reckless driving", and this type of recklessness is almost universally condemned.

Recklessness should not be confused with bravery. Although the two are related, the latter word is usually applied to cases where a person displays a more reasonable level of fear, rather than none at all.

Legal Definition of Recklessness

Criminal law recognizes recklessness as one of three degrees of fault: it falls below intent but above negligence on the spectrum of culpability. Recklessness in terms of criminal law usually recognizes either (a) that a perpetrator, aware of the potential adverse consequences of his actions, has gone ahead with doing them anyway, even without directly intending harm; or (b) has entirely closed his mind to risk which he ought to be aware of.

In the United Kingdom, the modern definition of recklessness under the law is provided by two leading case authorities: R v. Caldwell (1981) and R v. G (2003). The House of Lords (the highest court of appeal in the United Kingdom) in Caldwell was charged with the task of reëvaluating the extent to which intoxication could serve as a defence as to the recklessness requirements for fault under section 1(2) of the Criminal Damage Act 1971. In deciding the question of the mitigating factors in Caldwell, the court was faced with the interpretation of provisions which had gone essentially unchanged since the Malicious Damage Act 1861, but which had been almost completely re-written by the statute 110 years subsequent.

R v. Caldwell ([1981] 1 All ER 961)

Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer's hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pled guilty), but with the more serious charge of arson with intent to danger human life.

Caldwell was convicted of an offence under section 1(2) of the 1971 Act, which states in part that in order to have committed an offence, the defendant shall have “intend[ed] to destroy or damage any property or be[en] reckless as to [the same] and (b) intend[ed] by the destruction or damage to endanger the life of another or be[en] reckless as to whether the life of another would be thereby endangered”. Before the House of Lords, the question became whether self-inflicted intoxication was relevant to specific intent (i.e. intent in the sense in which it is thought of in ordinary language) and whether it was relevant to basic intent (i.e. a definition of intent which would encompass recklessness). The lords ultimately ruled that self-induced intoxication was in fact relevant as a defence to specific intent, but not to recklessness. Lord Diplock, in particular, went to great lengths to establish ‘recklessness’ as a legal term of art, as he contended it had not been at the time the 1971 Act was drafted. Diplock followed previous authority, which he condenses to the idea that “self-induced intoxication is no defence to a crime in which recklessness is enough to constitute the necessary mens rea.” The question in Caldwell certified by the Lords was thus resolved. The larger legal consequences of His Lordship’s opinion emanate from the discussion of recklessness both in terms of its place as a subjective element of the law of intention and in terms of the distinction between “basic” and “specific” intent within that law.

Lord Diplock eventually ruled that the definition of recklessness was that a defendant is reckless when “(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." (ibid.)

R v. G ([2003] 4 All ER 765)

In 2003, however, Diplock's definition, which had consistently come under fire from legal scholars in the two decades since it was established, was replaced by a new standard in UK criminal law.

Two boys, ages 11 and 12, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers which they had found in the yard, they left, with the papers still burning. The newspapers set fire to nearby trashcans against the shop wall, where it spread up the wall and onto the roof of the shop. Approximately £1m damage was caused. When their appeal reached the House of Lords, Lord Bingham, delivering the opinion of the Lords, saw the need for Diplock's definition to be re-invented because it left no possibility for the acquittal of persons whom the court judged could not know the risk of their actions: it was inherently unfair for 11- and 12-year-old boys to be held to the same standard as reasonable adults. Bingham therefore re-wrote a definition which firmly resolves the question of what recklessness in English criminal law actually means: that a person “acts . . . "recklessly" with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”

See also: negligence