Recklessness
A form of mens rea in criminal law. Following R v G [2003], the test is subjective: a person acts recklessly when they are aware of a risk that exists or will exist, and it is in the circumstances known to them unreasonable to take that risk. The objective Caldwell test was overruled.
Independent editorial summary — not the official statute text. Read the official version on legislation.gov.uk.
In R v G and another [2003] UKHL 50, the House of Lords overruled the objective test for recklessness laid down in R v Caldwell [1982] AC 341, under which a defendant could be convicted of criminal damage merely because a risk would have been obvious to an ordinary, reasonable bystander watching that the building, the commercial premises, would be damaged by fire — even though the two defendants, boys aged 11 and 12 who had set fire to newspapers that spread to a shop, never appreciated any such risk themselves.
Lord Bingham held that the correct test is subjective, adopting a Law Commission draft formulation: a person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to a circumstance when he is aware of a risk that it exists or will exist, or 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. A defendant who genuinely did not foresee a risk — whether through age, inexperience or other personal characteristics — cannot be reckless under this test, however obvious that risk might have seemed to a reasonable adult bystander.
Example
In R v G and another [2003] UKHL 50 itself, two boys aged 11 and 12 who set fire to newspapers behind a shop, causing about £1m of damage when the fire spread to the building, were held not to have been reckless because they had not actually foreseen the risk of the fire spreading — even though that risk would have been obvious to a reasonable adult.
Related terms
Official sources
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