In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than intentional wickedness, but is more blameworthy than careless behaviour.
To commit a criminal offence of ordinary liability (as opposed to strict liability) the prosecution must show both the actus reus (guilty act) and mens rea (guilty mind). A person cannot be guilty of an offence for his actions alone; there must also be the requisite intention, knowledge, recklessness, or criminal negligence at the relevant time. In the case of negligence, however, the mens rea is implied.
The tests for any mens rea element relies on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:
The most culpable mens rea elements will have both foresight and desire on a subjective basis.
A subjective test is applied to offenses requiring intent, knowledge or wilful blindness.
For recklessness, a subjective test is applied to determine whether accused wilfully took an initial action that is inherently risky (such as drinking alcohol) but an objective test is applied to determine whether the commission of the acteus reus could be foreseen (by a reasonable person).
For carelessness, once the prosecution proved the acteus reus, the defendant must prove that they exercised all the care a reasonable person would to prevent the actus reus from occurring.
There are also absolute liability offenses such as speeding. These do not require a guilty mind and due diligence is not a defense but a person cannot be imprisoned for an absolute liability offense.
Recklessness usually arises when an accused should be aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because they gamble with the safety of others, and, unless they exercised all possible due diligence, the fact they might have acted to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness.
A statutorily defined offence will be presumed to require mens rea, even if the Act is silent on the issue.
Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.
Black's Law Dictionary defines recklessness in American law as "Conduct whereby the actor does not desire harmful consequence but...foresees the possibility and consciously takes the risk," or alternatively as "a state of mind in which a person does not care about the consequences of his or her actions." Black's Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American courts, like English courts, a wrongdoer is found guilty of recklessness based upon the subjective test rule, where the accused must have had the same reasonable knowledge or ability to know the circumstances surrounding the incident in order to be found guilty of recklessness.
In American tort law, recklessness of the tortfeasor can cause the plaintiff to be entitled to punitive damages. Although there is no difference in the quantity of punitive damages awarded for recklessness rather than malice, plaintiffs may still desire to prove maliciousness because, in American bankruptcy law, debts incurred through willful and malicious injuries cannot be discharged in bankruptcy, but debts incurred through recklessness can.
The modern definition of recklessness has developed from R v Cunningham  2 QB 396 in which the definition of 'maliciously' for the purposes of the Offences against the Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result, the gas leaked into the house next door, and partially asphyxiated the man's mother-in-law.
The Court of Criminal Appeal reversed the conviction by the trial judge because "maliciously" was read to mean that the result was a reasonably foreseeable consequence of the defendant's actions, saying:
This type of recklessness is called "Cunningham recklessness".
The current test in England and Wales is thus one of subjective recklessness, as reaffirmed by the House of Lords in R v G .
In R v Caldwell  AC 341 a new definition of recklessness was adopted.
In late 1979, Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night and decided to set fire to his former employer's hotel, intending to damage the property. When he set the blaze there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson, contrary to section 1(1) of the Criminal Damage Act 1971 (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life, contrary to section 1(2) of that Act.
Caldwell was convicted under section 1(2), which requires that the defendant shall:
The House of Lords was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of specific intent and basic intent, the latter encompassing recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness.
The discussion of recklessness in this case tends to be largely obiter dicta. However Lord Diplock said at 354F that it would be proper to direct a jury that a defendant charged with an offence under section 1(1) of the Criminal Damage Act 1971 is "reckless as to whether or not any property would be destroyed or damaged" if:
To that extent, the test is one of obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be punished for failing to foresee it.
The decision in Caldwell was followed in R v Lawrence  AC 510 in which the defendant was charged with the offence of causing death by reckless driving contrary to section 1 of the Road Traffic Act 1972. Following his speech in Caldwell at 354C, Lord Diplock said at 526E:
Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting "recklessly" if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it.
Archbold Criminal Pleading, Evidence and Practice, 1999, para 17-52 et seq, refers to this definition of recklessness as "Caldwell/Lawrence recklessness," and at para 17-57 as "Diplock recklessness" and at para 17-56 as the "Caldwell test."
This form of recklessness is also called "objective recklessness".
In Elliot v C (a minor) a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action. The court reluctantly followed Caldwell. It held that a defendant is reckless as to whether property is destroyed if he fails to give any thought to the possibility that there is a risk that property will be destroyed and there is a risk that property will be destroyed that would be obvious to a reasonably prudent person, even though that risk would not have been obvious to the defendant (by reason of age or lack of experience or understanding) if he had given any thought to the possibility that there was risk that property would be destroyed.
The focus of this test is the nature of the defendant's conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to ag (wrongly as it would later appear) that no risk existed? See Chief Constable of Avon and Somerset v Shimmen  and R v Merrick  1 Cr App R 130, CA
In the continuing judicial debate, Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case), that an absence of something from a person's state of mind is as much part of their state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognised risk. Lord Keith stressed that Lord Diplock qualified the model direction as "an appropriate instruction" only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights in cases involving a minor or other persons of reduced capacity. The requirement is that "everyone is entitled to a fair and public hearing". But, to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes strict liability. However, Z and others v United Kingdom (2002) 34 EHRR characterises Article 6 as procedural rather than substantive.
This test was intended to be of general application. In R v Seymour (E), Lord Roskill said that the word "reckless" was to be given the same meaning in relation to all offences which involved recklessness as one of their elements unless an Act of Parliament otherwise provided.
After a period of confusion, in R v Satnam and Kewal, the Court of Appeal held that this test did not apply to the meaning of the word "reckless" in the definition of rape in section 1 of the Sexual Offences (Amendment) Act 1976.
In R v. Prentice and Sullman, R v Adomako, R v Holloway, the Court of Appeal ruled that the above statement of Lord Roskill was obiter and did not apply to cases of manslaughter consisting of breach of duty. When R v Adomako went to the House of Lords, it was said that, in cases of involuntary manslaughter, a trial judge need not direct a jury in accordance with the definition of recklessness in Lawrence.
The Road Traffic Act 1991 abolished the offences of reckless driving and causing death by reckless driving and replaced them with new offences of dangerous driving and causing death by dangerous driving. The change in nomenclature was a reversion to old terminology of former offences, i.e. apparently replacing a mens rea requirement with a fault element requiring dangerousness. Section 2A of the Road Traffic Act 1988 (inserted by the 1991 Act) now contains a definition of dangerous driving which is wholly objective and speaks of things being "obvious" to a careful and competent driver.
The decision in Caldwell was overruled by the House of Lords in the case of R v G, described below. The objective test that it introduced was phased out, and a form of subjective recklessness was introduced instead for cases involving criminal damage. The majority of mens rea of recklessness is now 'tested' using the Cunningham test.
Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out and said they gave no thought to the risk of its spreading. When their appeal reached the House of Lords, Lord Bingham saw the need to modify Lord Diplock's definition to take account of the defence of infancy, which contains the concept of "mischievous discretion". This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between "right" and "wrong". The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts 'recklessly' with respect to:
This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding. Nevertheless, the test remains hybrid because the credibility of the accused's denial of knowledge and understanding will always be judged against an objective standard of what you would expect a person of the same general age and abilities as the accused to have known.
In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian's conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Others, including the United Kingdom, charge the accused under existing laws with such crimes as murder, fraud (Canada), manslaughter, attempted murder, or assault.Culpable and reckless conduct
Culpable and Reckless Conduct is a Common Law offence under Scots Law.
The offence has no specific definition but deals with acts involving a criminal degree of recklessness which cause injury to other persons or create a risk of such injury. It will often be charged in parallel with other offences such as Wilful fire raising where it is clear that a criminal offence has occurred but the exact offence(s) committed need to be determined by the facts proven in court. The offence carries a maximum punishment of life imprisonment but the circumstances (and thus the eventual sentence applied) of individual cases will often fall short of requiring such a punishment and might not proceed beyond the Sheriff court which has limited sentencing powers.
The offence does not deal with events which involve only civil liability such as injuries caused by negligence which does not amount to a criminal act. It does apply to many events which, had they occurred in England and Wales, would have been the same offence whether they were caused intentionally or recklessly but in Scotland fail to fall within the substantive offence due to a lack of intention. This is demonstrated in many cases where an offender is charged with another offence (e.g. Wilful fire raising) as well as this offence and the eventual offence(s) for which the offender might be committed is determined by the proven intentions.
While there is no statutory definition, a summary of what constitutes the offence can be inferred from a draft Scottish Legal Code which drew upon current law and proposed the following for a statutory offence of Recklessness :-
For the purposes of criminal liability ⎯
(a) something is caused recklessly if the person causing the result is, or ought to be, aware of an obvious and serious risk that acting will bring about the result but nonetheless acts where no reasonable person would do so;
(b) a person is reckless as to a circumstance, or as to a possible result of an act, if the person is, or ought to be, aware of an obvious and serious risk that the circumstance exists, or that the result will follow, but nonetheless acts where no reasonable person would do so;
(c) a person acts recklessly if the person is, or ought to be, aware of an obvious and serious risk of dangers or of possible harmful results in so acting but nonetheless acts where no reasonable person would do so.Exxon Shipping Co. v. Baker
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), was a case decided by the Supreme Court of the United States. The Court ruled in a 5-3 decision that the punitive damages awarded to the victims of the Exxon Valdez oil spill should be reduced from US$2.5 billion to US$500 million.
The case was appealed from the Ninth Circuit Court of Appeals. The Ninth Circuit had also ruled that Exxon could be held liable for the reckless conduct of the ship's captain, Joseph J. Hazelwood, who had left the bridge during the disaster and had been drinking vodka that evening. The Supreme Court was split 4-4 on the question of whether Exxon was liable for Hazelwood's action. The result of the split is that the Ninth Circuit's ruling on Exxon's respondeat superior liability for Hazelwood's conduct remains since Hazelwood acted in a managerial capacity under the Restatement (Second) of Torts Section 909(c) approach to punitive damages.
After considering the punitive damage policies of foreign nations, the Court reasoned that although punitive damages were warranted, they may not exceed what Exxon already paid to compensate victims for economic losses, which was about US$500 million. It held that a one-to-one ratio between punitive and compensatory damages was "a fair upper limit" in maritime cases that involved recklessness, compared to the lower liability of negligence or the higher liability of intentional conduct. Its reasoning, "The real problem, it seems, is the stark unpredictability of punitive awards," frustrates the goal of punitive damages, deterring reprehensible conduct, because predictable damages create an incentive to continue dangerous misconduct if the personal injury liability is less than the potential profit, as on the Ford Pinto. It suggested giving a "bad man" the chance to look ahead and to calculate the consequences of doing or not doing a bad act will deter harmful actions. He suggests the upper limits on punitive damages should be as predictable as the legislative range of criminal sentences, but no minimum for punitive damages were discussed.
Justice David Souter wrote for the majority, joined in full by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Justice Samuel Alito took no part in the decision because he owns stock in ExxonMobil.
Justice Stevens wrote a separate opinion concurring in part and dissenting in part. His dissent advocated judicial restraint because Congress has chosen to regulate maritime tort law. Stevens wrote that the trial court award of $2.5 billion in punitive damages was not an abuse of discretion and should have been affirmed.
Of this reasoning, Boston University law professor Keith Hylton said, "The court's elaborate and lengthy argument for the one-to-one ratio is troubling for several reasons. First, the whole discussion was largely unnecessary if the court really wanted to limit its decision to maritime cases. The court's majority appears to be trying to make the case for imposing the one-to-one ratio as a default rule in ordinary civil cases."Intention (criminal law)
In criminal law, intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation. A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.Intoxication in English law
Intoxication in English law is a circumstance which may alter the capacity of a defendant to form mens rea, where a charge is one of specific intent, or may entirely negate mens rea where the intoxication is involuntary. The fact that a defendant is intoxicated in the commission of a crime — whether voluntarily or not — has never been regarded as a full defence to criminal proceedings (unlike statutory defences such as self defence). Its development at common law has been shaped by the acceptance that intoxicated individuals do not think or act as rationally as they would otherwise, but also by a public policy necessity to punish individuals who commit crimes.Legal abuse
Legal abuse refers to unfair or improper legal action initiated with selfish or malicious intentions. Abuse can originate from nearly any part of the legal system, including frivolous and vexatious litigants, abuses by law enforcement, incompetent, careless or corrupt attorneys and misconduct from the judiciary itself.Legal abuse is responsible not only for injustice, but also harm to physical, psychological and societal health.*R v G
R v G and Another is an English criminal law case, concerning recklessness. It held that a defendant must be shown to have subjectively appreciated a risk to the health or property of another but carried on in any event before they may be said to be criminally culpable. It abolished the "objective recklessness" test previously established under R v Caldwell.R v Sansregret
R v Sansregret  1 S.C.R. 570 is a leading Supreme Court of Canada case on the requirements and defence for the criminal charge of rape.Reckless driving
In United States law, reckless driving is a major moving traffic violation. It is usually a more serious offense than careless driving, improper driving, or driving without due care and attention and is often punishable by fines, imprisonment, or driver's license suspension or revocation. (List specific to the USA.)
Reckless driving is often defined as a mental state in which the driver displays a wanton disregard for the rules of the road; the driver misjudges common driving procedures, often causing wrecks, accidents and other damages. Reckless driving has been studied by psychologists who found that reckless drivers score high in risk-taking personality traits. However, no one cause can be assigned to this state.
There are some states, such as Virginia, where mental state is not considered, but rather a set of more than a dozen specific violations can be deemed reckless. Excessive speed by itself is sufficient for a reckless driving conviction in some jurisdictions (e.g., Virginia). Because of the seriousness of the charge (excepting Virginia's definitions) reckless driving may be equated to DUI by rental agencies and preclude the offender from renting a car for several years after the conviction.In Virginia, reckless driving is considered a class one misdemeanor. As such, the penalties can include the following: a maximum of one year in jail, a six-month loss of license, six demerit points, and a fine of up to $2,500.Reckless homicide
Reckless homicide is a crime in which the perpetrator was aware that their act (or failure to act when there is a legal duty to act) creates significant risk of death or grievous bodily harm in the victim, but ignores the risk and continues to act (or fail to act), and a human death results. It is contrasted with negligent homicide, in which the perpetrator did not have the awareness of the risk, but should have had it.Recklessness
Recklessness may be:
Recklessness (law), a legal term describing a person's state of mind when allegedly committing a criminal offence.
Recklessness (psychology), a state of mind in which a person acts without caring what the consequences may beRecklessness (psychology)
Recklessness (also called unchariness) is disregard for or indifference to the dangers of a situation or for the consequences of one's actions, as in deciding to act without stopping to think beforehand. Aristotle considered such rashness as one end (excessive) of a continuum, with courage as the mean, cowardice as the deficit vice. Recklessness has been linked to antisocial personality disorder.Voluntary intoxication in English law
Voluntary intoxication, where a defendant has wilfully consumed drink or drugs before committing acts which constitute the prohibited conduct (actus reus) of an offence, has posed a considerable problem for the English criminal law. There is a correspondence between incidences of drink and crimes of violence, such as assaults and stabbings. Accordingly, there is a debate about the effect of voluntary intoxication on the mental element of crimes, which is often that the defendant foresaw the consequences, or that they intended them.
In dealing with this issue and balancing theoretical problems with public policy issues, the English law has categorised offences into two categories, those of basic intent and those of specific intent. In the latter, the defendant's intoxication will be directly relevant as to whether he or she formed the necessary intent. In the former, the picture is more complicated and unclear, although it is known that intoxication will not provide a defence where recklessness can be shown on the accepted facts. Crimes of specific intent include murder, and those of basic intent most crimes of recklessness, including manslaughter.Willful blindness
Willful blindness (sometimes called ignorance of law, willful ignorance or contrived ignorance or Nelsonian knowledge) is a term used in law to describe a situation in which a person seeks to avoid civil or criminal liability for a wrongful act by intentionally keeping himself or herself unaware of facts that would render him or her liable. In United States v. Jewell, the court held that proof of willful ignorance satisfied the requirement of knowledge as to criminal possession and importation of drugs.Although the term was originally—and still is—used in legal contexts, the phrase "willful ignorance" has come to mean any situation in which people intentionally turn their attention away from an ethical problem that is believed to be important by those using the phrase (for instance, because the problem is too disturbing for people to want it dominating their thoughts, or from the knowledge that solving the problem would require extensive effort).Willful violation
In the North American legal system and in US Occupational Safety and Health regulations,
willful violation (also called 'willful non-compliance') is an "act done voluntarily with either
an intentional disregard of, or plain indifference to," the requirements of Acts, regulations, statutes or relevant workplace policies. This is described with slightly different emphasis in an OSHA technical manual that a "willful violation exists under the Act where the evidence shows either an intentional violation of the Act or plain indifference to its requirements." Criminal Recklessness is similarly described in Black's Law Dictionary as "Conduct whereby the actor does not desire harmful consequence but...foresees the possibility and consciously takes the risk," or alternatively as "a state of mind in which a person does not care about the consequences of his or her actions."
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