Recklessness is a problematic area of the criminal law, since there is no strict definition of what constitutes it. Statutes make provision for the presence of recklessness, but have yet to define it strictly, so it becomes the job of judges to interpret the word. It is therefore most easily delineated via case law.
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 defendant, and therefore whether it would really be seen as "unreasonable" to take a risk. However, it is the closest to a strict definition that the legal world has at the moment and is not as ambiguous as previous attempts at definition and with the presence of the Mischief Rule, a lot of law is open to judicial interpretation. Therefore, this definition is as useful as we can currently hope for.
Another problem with recklessness is that it has overlaps with gross negligence in civil law, and it may be difficult to draw a line between the two. Law academics at Kent Law School distinguish the two by saying that criminal liability can only be imposed " where the possible harm is more serious and the risk is more obvious- This distinction is rather vague, but the legal division is the "social utility" of the action.
