Should the subjective definition of recklessness in criminal law be maintained?
The subjective definition of recklessness is where the defendant takes an unjustified risk and was actually aware of the consequence, has been seen here to be the best approach when understanding reckless behaviour. Although within criminal law, the term recklessness has a second definition which is known to be objective recklessness. The objective definition argues that a person is reckless when the defendants take an unjustified risk and was actually aware or should have been aware. This essay establishes that the subjective definition of recklessness takes into account the individuals characteristics, the mental state of a defendant but also help to understand certain cases like rape. It has also been established here that elements of the objective definition is an extension from the subjective definition of recklessness, which therefore allows the subjective side holds greater weight and in terms of looking at if the reasonable man may have be incapable of foreseeing a consequence. Thus, it has been argued here that the subjective definition of recklessness in criminal law must be maintained.
The establishment of the Subjective definition of recklessness was through the case of Cunningham. In R v Cunningham D broke a gas metre to steal money contained within the metre, leading to a gas leak which caused D’s mother in law to become seriously ill. The subjective definition was developed here as D had been reckless as he had realised there was a risk of gas escaping and endangering someone, and went ahead with his action anyway. Therefore, demonstrating the subjective definition that a defendant to be guilty under Cunningham recklessness they must ...
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This essay will analyse a contemporary Policy document policing in the 21st century: Reconnecting police and the people. It is a document presented by the secretary of state for the Home Department by Command for Her Majesty in July 2010. It will look at how some philosophies of punishment and models of criminal justice are convincing in explaining the methods and tactics used to formulate criminal justice policies as evidence in Policing in the 21st Century: Reconnecting police and the people. Other policy documents will be looked at in other to compare their similarities. Crime control, bureaucratic models the philosophy of deterrence and rehabilitation are convincing in explaining the politics of this policy document. Due process and the other models of criminal justice has had very little or no influence in writing of this policy. The argument will be that though crime control is the main function of the police, it is not the only function. There must always be a compromise between a Due process and crime control [Newburn, T. P .561]
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Additionally, although the tests developed in Caldwell were intended to broaden the concept of recklessness to catch those who were morally at fault but without strong enough evidence of their state of mind, it has left a loophole. It was held that people would only fall within the lacuna if they thought about whether there was a risk and, due to a genuine, honest mistake, decided there was none, in such cases they would not be considered reckless. If they thought about whether there was a risk, and decided on the basis of a grossly negligent mistake that there was none, then they would still be reckless for the purposes of Caldwell. The Caldwell lacuna was examined in the case of Chief Constable of Avon and Somerset Constabulary V Shimmen
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Complete free exercise of will inhibits individual and societal freedom. According to Mill, one may act as one chooses unless one is inflicting harm onto others. He argues that one is free to behave “according to his own inclination and judgment in things which concern himself” as long as “he refrains from molesting” (64). The problem arises in the freedom allowed to the individual performing the potentially dangerous act. People are often blinded by the situation in which they are in and by their personal motives which drive them to act. Humans, by nature, have faults and vices that are potentially harmful. It is the responsibility of society to anticipate harm, whether to oneself or to others. Once dangerous patterns and habits are recognized it is imperative to anticipate and prevent injury from reoccurring. To allow any individual to be inflicted harm forces citizens to lose tr...