Notesale: Turn your study into money

Document Preview

Extracts from the notes are below, to see the PDF you'll receive please use the links above

---

Criminal law; Non-assessed essay
‘Critically consider the relative merits of subjective and objective tests of recklessness within
the criminal law
...

A primary division of mens rea is ‘intention’ and ‘recklessness’
...
The decision as to whether a subjective or
objective test should be applied to a defendant that was said to have foresaw the risk of their
reckless behaviour has been subject to much debate
...
This would allow the courts to make
exceptions from these defendants, against those of sound perception that foresaw a risk
...
It allows the courts to measure a defendant’s
culpability against general standards of similar behaviour
...

There are various definitions of the term ‘recklessness’, one of which is ‘advertent
recklessness’, that focuses primarily on the existence of mens rea in the form of D’s
awareness of ‘the risk of the prohibited consequence occurring’
...
Here, it was held that recklessness involves a
defendant that ‘has foreseen that the particular kind of harm might be done and yet has gone
on to take the risk of it
...
4; page 176
[1957] 2 QB 396
3
Vide footnote 2
2

liability
...
These two former
elements focus largely on D’s mind-state, and such, are measured as ‘subjective recklessness’
...
Thus, this element of risk is measured with objectively
...
The case of R v Stephenson7 is particularly pertinent to this
matter
...
His conviction was quashed by
the Court of Appeal, on the basis of medical evidence that invalidated the D’s ability to
foresee the risk of his actions against that of a person of sound mentally ability
...
Thus, advertent recklessness leans largely in support of
a subjective test for recklessness
...
9
There are often issues concerned with subjective recklessness, particularly in cases where, a
defendant’s ability to foresee a risk was fragmented by, for example, impaired judgement
through ‘loss of temper’, in such cases, the courts will consider, if the defendant hadn’t
foreseen the risk at the time of the act, would the risk have been reasonably expected to have
been considered in a calmer mind-state
...
In this

4

Vide footnote 1
Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th edn, OUP, 2013) ch 5
...
4; page 177
7
[1979] QB 695
8
Vide footnote 7
9
Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th edn, OUP, 2013) ch 5
...
The second situation in which judging a defendant’s ability to foresee a risk
subjectively is flawed, is in cases whereby D’s adopt a ‘indifferent’ attitude as to whether a
particular consequence may occur
...
12 Clearly these two scenarios strike up issue with firming a defendant’s liability
beyond all reasonable doubt, particularly where that doubt is cast over the defendants ability
to perceive the risk, in such cases, it may be argued an objective approach to liability is
favourable
...
14 This ‘objective’ standard subsequently included
occurrences where a defendant may not have foreseen a risk like those discussed earlier,
however, it also now incorporated children and those of mental impairment, who, as seen
earlier in the case of Stephenson, are often considered to not be capable of being held
responsible for their actions
...
Lord Bingham stressed a similar concern, stating determining a
defendants liability to recklessness should be ‘reversed to the traditional, more subjective
definition of recklessness based on the defendants awareness of the risk’
...
4; page 179
13
[1982] AC 341
14
Vide footnote 13
15
Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th edn, OUP, 2013) ch 5
...
The
latter is considered harsher, but prevents certain defendants escaping liability on the basis of
insufficient reasons, for example, ‘lost temper’
...
’16 However, a subjective approach is considered
more appropriate in cases where unjust outcomes may occur for defendants held to be
reckless, but that of which are, for example, children or mentally impaired
...
Ashworth and Horder stated that if ‘we were to move towards a greater reliance
on objective standards, objective tests must be applied subject to capacity based expectations,
being mindful and respectful of personal autonomy’ that of which is favoured by a subjective
approach
...
4; page 185
Vide footnote 16

Bibliography

Primary sources
Cases:
Parker [1977] 1 WLR 600
R v Stephenson [1979] QB 695

Secondary sources
Books:
Ashworth A & Horder J, Principles of Criminal Law (7th edn, Oxford University Press, 2013)



---