So how does one go about interpreting exactly what may be a reckless act? To begin with, it is a type of mens rea for criminal liability. According to Kevin Boone, judges have had to rely on “explanations in important case reports” to work out what may amount to recklessness. This means going through potentially huge amounts of recklessness cases to see if the case in question could fall within the confines set out there. Realising this is challenging, the Law Commission have sought to rectify the situation, by releasing several working papers on the issue. One of them gives the following explanation:

“a person acts recklessly [if] he is aware of a risk that…exists or will exist [or] …when he is aware of risk that…will occur and it is, in the circumstances known to him, unreasonable to take the risk.”

Even this in itself is dubious, as it can be difficult to establish the mindset of the

Shimmen brings yet another dimension to the already complex law on recklessness. It asks, “how far should the accused have to go to eliminate the risk?” Shimmen was tried in the Divisional Court after breaking a window, in which he attempted to demonstrate a karate kick to friends. He claimed he had minimised the risk of breaking the window as he thought at the time that he had stood far enough away from it. The court ruled, however, that he was guilty of criminal damage since he had foreseen the risk and taken it anyway, despite his claims. Allen points out that the legal position would see to be that if the risk has “…no social utility…there would be no justification for running such a risk.”

Caldwell is an objective test in the sense that, unlike in Cunningham, a case is tested not on what the defendant foresaw as a potential risk, but what he ought to have foresaw. This brings in the argument of what type of person would foresee the risk. The general interpretation is that of ‘the ordinary prudent person’ but, as stated above, this can be problematic in itself and there is still no definitive explanation of whom such a person may be, particularly in cases relating to recklessness. However, it would seem that the ruling in Elliott v C (see above) remains the law. In Coles, which eventually reached the House of Lords, the opportunity arose to overrule the judgement in Elliott v C, but it was decided against this.

This would be a mammoth task, as there are so many awkward issues, but in the end it would simplify things for everyone who has dealings with the law on recklessness. The Law Commission have therefore been engaging in drafting ideas and putting potential conceptual reforms into their working papers and reports.

Having analysed all of the above facts and cases, it is clear that the law on recklessness can be very problematic and often contradictory. Many people, therefore, believe it needs to be reformed.

The Criminal Damage Act 1971 was partly as a result of the Law Commission’s Offences of Damage to Property report, therefore endorsing the Cunningham rules in legislative form. However, despite this statutory development, there remains no strict definition of recklessness, or explanation of the issues surrounding it, in substantive legislation. This ought to be dealt with to clarify and simplify all the issues that surround the law on recklessness. It would make judicial interpretation less time consuming and more uncomplicated that sifting through mountains of case law.

Some topics in this essay:
Divisional Court, House Lords, Law Commission, Damage Property, Lord Diplock, Appeal Court, Subjective Cunningham, Russian Roulette, Mischief Rules, Essentially Reid, law recklessness, actus reus, recklessness problematic, law commission, risk obvious, act reckless, criminal law, judicial interpretation, strict definition, offences damage property, divisional court, difficult draw line, law recklessness problematic, caldwell objective test, law commission sought,